Creating a Will in California

Having a valid last will and testament​ in place helps you plan ahead and protect your family and loved ones. Knowing they are taken care of can bring valuable peace of mind to both you and your heirs.

In this article, we’ll explore California‘s legal requirements for a valid will, what happens if you die without a valid will in place, how the probate process works, and other considerations.

What is a California Last Will and Testament?

A last will and testament, often simply called a “will,” is a legal document outlining your final wishes. It is your official instruction manual for what happens after you pass away, allowing you to name an executor to manage your estate, appoint guardians for minor children, and specify who inherits your property.

While it is just one part of a comprehensive estate plan, it is the foundational document for ensuring your wishes are known and legally honored.

How to Create a Will in California: A Step-by-Step Guide

Creating your own will can seem daunting, but making a will in California follows a clear, logical path. This guide breaks down the process into four essential steps, from confirming you meet the basic requirements to correctly executing the final document. By following this framework, you can confidently create a will that is legally sound and ensures your wishes are honored.

Step 1: Determine if You Meet the Legal Requirements

The California Probate Code​ requires a testator to be mentally competent​ at the time the will is made. You have the legal capacity to make a will in California if you are of legal age (18 years old) and of sound mind.

An individual who does not have sufficient mental capacity won’t be able to understand that they are making a will, understand and remember what property they own, or remember and understand who their close family members are and how the will might affect them.

Additionally, an individual who has a mental health disorder with symptoms including delusions or hallucinations that cause the individual to distribute their property in a way that the individual would not have done otherwise is not legally capable of making a will.

Step 2: Decide What Type of Will to Make

California‘s law requires wills to be written down to be valid. The state recognizes handwritten wills (holographic wills​), but they must meet specific requirements. Unlike a few states, California does not recognize oral wills. Your options include:

• Attested Will: A formal will, usually a written document prepared by an attorney that meets specific legal requirements.
• Holographic Will: A handwritten will is known as a “holographic” will. California recognizes holographic wills​ if the material provisions of the will and the signature are in the testator‘s handwriting, and the language shows testamentary intent.
• California Statutory Will: This is a simple form​ you can use, but you must follow the instructions carefully to create a valid will.

Another option for making a will is to use an online DIY form or service​. You can also work with a California will attorney.

Step 3: Draft the Will

In your will, you can do more than just pass on your assets. You can also:

• Nominate a guardian to take care of any minor children.

• Nominate a guardian for your pets.

• Name a personal representative (executor) who will administer your estate.

Step 4: Signature and Witness Requirements

For a formal will to be valid, it must be signed​ by the testator (or someone acting on their behalf) and be attested by witnesses. At least two competent people, present at the same time, must witness the will’s signing during the testator‘s lifetime and understand that it is the testator‘s will.

The witnesses should be disinterested, meaning they don’t have a financial interest under the will. Unlike many legal documents, you do not need to sign the will in front of a notary. A California will does not need to be notarized to be valid.

What Happens if You Die Without a Will in California?

If you die without a will​ in California, the probate court will handle your estate. The probate process for an intestate estate includes appointing a personal representative, identifying the legal heirs under the intestacy statutes, paying debts, and distributing any remaining assets in the order set out in the Probate Code. Your estate will be handled under your state’s intestate succession laws. If no heirs are found, your estate “escheats​” (transfers) to the state.

Understanding the Probate Process in California

The probate process for a will is similar to the intestate process. In this case, you’ve chosen your personal representative (executor) who will administer your estate. The executor will do the following, under court supervision:

• Gather and manage your assets
• Notify the heirs you’ve named
• Pay the estate’s debts
• Distribute the remainder of your estate to your heirs according to your wishes

The cost of probate in California is set by statute, with personal representative fees​ and attorney fees​ based on the gross value of the estate.

How Can I Avoid Probate in California?

There are ways to pass along some or even all of your assets at your death that avoid the probate process. Some of the key strategies include:

• Trust-Based Estate Plan: Assets held in a revocable living trust are often exempt from probate.
• Ownership and Beneficiary Designations: Holding real estate as a joint tenant with right of survivorship or using transfer-on-death (TOD) or payable-on-death (POD) designations can avoid probate. Retirement accounts and life insurance policies also transfer directly to named beneficiaries.
• Statutory Shortcuts: If an estate’s value is below statutory thresholds, the California Probate Code allows a streamlined transfer process for certain small estates.

Other Considerations for Your Estate Plan

Your estate plan should be customized to meet your specific needs, which may change over time. You can update an existing will with new terms by adding a codicil​ or creating an entirely new will.

With a healthcare power of attorney or advance healthcare directive in your estate plan, your wishes can be carried out if you become incapacitated. In addition, you can appoint a power of attorney to make your financial decisions during your incapacity.

Consult a California Estate Planning Attorney for More Information

With a valid will in place, you can have the peace of mind that comes with taking care of the important people in your life. If your assets and intentions are straightforward, you may be able to create an effective and valid will on your own. When your situation is more complex due to divorce, a second marriage, a blended family, dependents with special needs, or more complex assets, you may want to consult with an estate planning attorney.

Figuring out your will can get complicated when business ownership, out-of-state real estate, or assets with significant value are involved. A California estate planning attorney can help you evaluate all your options and create a comprehensive estate plan so you can be sure your family and loved ones are provided for.