A last will and testament is a legal document instructing on the disbursement of the deceased belongings and assets. Here’s what you need to know about forming a will in California.
A will is the first step to creating a solid estate plan, which can also include a power of attorney, living trust, guardianship of minor children, and management of minor heirs’ assets. A will in California provides the security that one’s family is protected and is allocated assets based on the deceased’s preferences rather than by the determination of the courts.
Creating a California Will
There are three primary options when creating a will:
- Create a will by filling out a form or writing one from scratch.
- Use an online will service.
- Hire an attorney.
Who Should Form a Will?
Individuals should write and leave a will. In the absence of a will, intestate succession laws dictate the allocation of the house, car, savings, and other assets. A will names an executor to cash checks, pay off creditors, and distribute any money or property to beneficiaries. Without one, heirs will have to ask a court to appoint a personal administrator, and often it will appoint a surviving spouse or a child which causes a greater risk of the family fighting over assets and power of attorney.
Related to: Intestate Succession in California: The Basics
The last will and testament protect families and property. A will can be used to do the following:
- Leave property to people, or organizations
- Name a trusted person to manage property left to minor children
- Name a personal guardian to care for minor children
- Name an executor, the person entrusted with carrying out the terms of the will
Requirements for Writing a Will in California
To make a will in California, one must satisfy the following:
- An individual 18 years of age or older (or an emancipated minor), and
- They are “of sound mind”
Under Cal. Prob. Code 6100, “of sound mind” means that one must satisfy the following:
- Understand what it means to make a will
- Understand what property they own
- Understand and remember who their relatives are, and
- Do not have a mental health disorder that would cause them to have delusions or hallucinations affecting what they would do with their property per Cal. Prob Code § 6100.5
In addition, Cal. Prob. Code § 6101 also states that one may not use their own will to dispose of property that they do not own.
A hard copy of the will should be made. Audio, video, or any other digital file are not permissible. Consider typing and printing a will using a computer, or using a typewriter. Cal. Prob. § Code 6111 states that California does permit handwritten wills but may not always be ideal.
Steps to Create a Will in California
Below is a quick checklist for putting together a will in California.
- Decide on the will-making process.
- Decide what to include in the will.
- Decide who will inherit the property.
- Pick an executor.
- Pick a guardian for children, if applicable.
- Pick someone to manage the children’s property.
- Make the will.
- Leave out personal wishes, if applicable.
- The date and sign will be in front of witnesses.
- Attach a self-proving affidavit & notarize, if applicable.
- The store will safely.
California Will Form
California will form is easily accessible. It can be picked up at a local court office or a free fill-in-the-blank form exists online. However, make sure to tailor a template to the specificities of one’s own case. California will templates, even those provided by the state, are generalized and not tailored to individual’s preferences so they may not prove sufficient for those with more complicated plans.
Witnesses and Signing
A California will be signed in front of two witnesses, who then sign the will afterward to make it legal under the eyes of the Court.
Related: DIY Living Trust in California
Executor Requirements
An estate executor in California will handle affairs after one’s death. The restrictions placed on executors include, but are not limited to, the following:
- Age: At least 18 years old (age of majority)
- Residency: Must be a resident of the United States
- Competency: Must be generally competent
- Behavior: Can be removed if they have committed fraud
Forming a Will in California FAQs
Do California wills have to be notarized?
Notarization of a will is not required in order for it to be valid in California. However, notarization cannot take the place of proper witnessing outlined above. After one’s passing, at least one witness must appear in court to verify their will. However, if a notarized, self-proving affidavit is included, one may prevent this from happening and greatly ease the probate process.
Are handwritten wills legal?
California allows for handwritten wills and they do not require any witnesses, but these holographic wills must be dated and written in the handwriting of the testator. Keep in mind that a handwritten will may leave room for interpretation and ambiguity, which could delay the probate process or result in the contestation of the will.
When do I need to appoint a manager of assets in my California will?
A manager of assets is usually needed when the deceased has minor children who cannot yet completely manage their own assets or inheritance so there is an interim manager until they become of age.
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