Creating a Will in California

Thinking about what happens after you die is a difficult topic for most people. If you don’t have a plan in place, the state of California has a plan for you that may not reflect your wishes. What you own (your assets) will be divided up and distributed according to the state’s intestate succession laws.

The legal documents that outline how you want your assets handled in the event of incapacity or at death are your estate plan. Estate plans are usually will-based or trust-based. A will-based plan meets the needs of many people.

Having a valid last will and testament in place is one way to plan ahead and protect your family members 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.

The Legal Requirements of a Valid Will

The basic requirements for drafting, signing, and enforcing wills are fairly similar across the United States. Many states follow the Uniform Probate Code, but California is not one of them. Instead, the California Probate Code sets its own rules, deadlines, and procedures.

You have the legal capacity to make a will in California if you are of legal age (18 years old) and of sound mind. If your assets and intentions are straightforward, you may be able to create your own will. A California Statutory Will is a simple form you can use. 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 to create your will. With a valid will in place, your assets will pass to your intended heirs according to your wishes.

Types of Wills

How you communicate your final wishes is important. California’s law requires the person making the will (the testator) to have the legal capacity to make a will. As mentioned, this means you must be at least 18 years old and of sound mind. California state law also requires wills to be written down to be valid. An attested will is a formally prepared will that meets specific legal requirements. The state also recognizes handwritten wills (holographic wills), but they must meet specific requirements. Unlike a few states, California does not recognize oral (nuncupative) wills.

Attested Will

A formal will is usually a written document prepared by an attorney. The will must be signed by one of the following:

• The testator
• Another person in the testator’s name, in the testator’s presence, and at the testator’s direction
• A conservator acting under a court order

The will must also be attested by witnesses. At least two competent people, present at the same time, must witness the will’s signing (or the testator’s acknowledgment of the will 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.

If a witness has an interest in the will, the probate court may presume the interested witness had undue influence over the testator. In this case, the interested witness may have to overcome the presumption of undue influence to receive more than what they would receive under intestate succession law.

Unlike many legal documents, a will does not need to be notarized to be valid. Because of the legal weight of an attested will, the probate process tends to be smooth.

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
• The language shows testamentary intent (this can be shown by extrinsic evidence, meaning evidence that is found outside of the document itself)

A formal will that is missing attestation may still be valid as a holographic will if these requirements are met. Like a formal will, a handwritten will does not need to be attested by a notary public. It also does not require witnesses. As a result, a handwritten will may be subject to greater legal scrutiny by the probate court.

Oral Wills

An oral will is sometimes known as a nuncupative will. Examples include a so-called “deathbed declaration.” The state of California does not recognize oral wills.

What Does “Sound Mind” Mean?

The California Probate Code requires a testator to be mentally competent at the time the will is made. The statute defines what is not mentally competent in two ways.

First, 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.

Second, 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.

If either of these applies, the will is likely to be declared invalid.

What Happens if You Die Without a Valid Will in Place?

If you die without a will in California, the probate court will handle your estate. The probate process for an intestate estate includes:

• Appointing the personal representative (administrator)
• Identifying the legal heirs under the intestacy statutes
• Paying debts
• Distributing any remaining assets in the order set out in the Probate Code

This means your estate will be handled under your state’s intestate succession laws rather than according to your wishes. These laws tend to divide your estate equally between your surviving spouse and your relatives or, if you don’t have a surviving spouse, among your relatives. This may include distant relatives. If no heirs are found, your estate “escheats” (goes) to the state.

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 gathers and manages your assets, notifies the heirs you’ve named, pays the estate’s debts, and distributes the remainder of your estate to your heirs according to your wishes, all under court supervision.

The cost of probate in California is set by statute. The personal representative fees (the administrator or executor) and attorney fees are based on the gross value of the estate. Probate is that it is a public process. This means that the public can access the will and court filings, although some details may be redacted. Because of its cost and public nature, some people plan their estates to avoid probate.

Potential Ways To Avoid Probate

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 a trust-based estate plan, ownership and beneficiary designations, and statutory small-estate shortcuts.

Trust-Based Estate Plan

Assets held in trust are often exempt from probate. A revocable living trust is a common estate planning tool. In a revocable living trust, you transfer your assets to the trust and serve as the trustee until your death. Your successor trustee then takes over the trust administration. A main benefit of a trust-based estate plan is that it may avoid probate entirely if properly funded. This can be quicker, less expensive, and more private. A revocable living trust may cost more to set up and administer than a will, which is also an important consideration.

Ownership and Beneficiary Designations

If you hold any real estate as a joint tenant with right of survivorship or community property with right of survivorship, these assets will pass to the other owner or owners at your death. You can avoid probate for some assets by making transfer-on-death (TOD) or payable-on-death (POD) designations for some of your assets.

In addition, retirement accounts and life insurance policies include beneficiary designations. At your death, these assets transfer to your named beneficiary.

Statutory Short Cuts

If an estate’s value is below statutory thresholds, the California Probate Code allows a streamlined transfer process for certain small estates. These shortcuts have detailed requirements, but may avoid the full probate process.

Additional Considerations

An estate plan is about more than just passing on your assets to your heirs. For example, if you have minor children, you can nominate a guardian to take care of them. You can do the same for your pets, if you’d like.

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.

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. If you choose to create a new will, make sure to revoke the old will so that your intentions are clear.

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 through 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.