Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. California wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with the testator (or the person making the will), to create valid California wills and to assign a person (called the executor in most states) to administer a California last will and testament after the death of the testator.
Basic Requirements for a California Last Will and Testament:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind (capable of reasoning and making decisions).
- Signature: A California last will and testament must be signed:
- By the testator
- In the testator's name by some other person in the testator's presence and by the testator's direction
- By a conservator, pursuant to a court order to make a will
- Witnesses: A California last will and testament must be signed by at least two persons each of whom (1) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (2) understand that the instrument they are signing is the testator's will.
- Writing: A will must be in writing to be valid.
- Beneficiaries: A California last will and testament may make a disposition of property to any person, including but not limited to any of the following:
- An individual
- A corporation
- An unincorporated association, society, lodge, or any branch thereof
- A county, city, city and county, or any municipal corporation
- Any state, including California, the United States or any instrumentality thereof
- A foreign country or a governmental entity therein
- Other types of recognized wills:
- Holographic Wills: A handwritten will is valid if the signature and the important sections of the will are in the handwriting of the testator. Although California law recognizes a handwritten will, state laws can be very particular regarding handwritten wills.
Distribution of Property:
A will may direct the distribution of assets to family, friends or charitable organizations as the testator desires. The testator may provide for specific gifts as well as the distribution of the "residue" of the estate (the remaining assets) using our California wills form.
Other Purposes of Wills:
Notable exceptions to the ability to distribute property:
- Our California wills form allows you to nominate a person who will have the responsibility to care for minor children.
- You may also appoint a guardian to manage the assets given to a minor child.
- You may also name an executor in your will. The executor collects and manages your assets, pays your debts and expenses and any taxes that might be due, and then, distributes your assets in accordance with the provisions of your will.
Changing and Revoking
- Generally speaking, your will only affects assets that are in your name alone at your death. Some assets that are not affected by a will include:
- Life Insurance: cash proceeds from an insurance policy are paid to the designated beneficiary of the policy no matter who the beneficiaries under your will may be
- Retirement Plans: assets held in retirement plans, such as a 401(k) or an IRA, are transferred to the person you have named as beneficiary in the plan documents
- Assets Owned as a Joint Tenant: assets such as real estate, bank accounts and other property held in joint tenancy will pass to the surviving tenant upon death, and not in accordance with any directions in your will
- Living Trusts:assets held in a revocable living trust at death are distributed pursuant to the provisions of that trust document
- The community property of the testator's spouse is not affected by a will. In California, any assets acquired by spouses from earnings during marriage are community property. The testator and spouse own equal shares of those assets.
Changing a California Will and Testament
A California will and testament may be changed whenever the testator desires. The State Bar of California recommends that testators review their wills periodically because, if it is not up to date when the testator dies, the estate may not be distributed as desired.
A California will and testament can be changed through a codicil, which is an amendment to the will. Codicils must be executed in accordance with the same state laws which apply to wills.
A California will and testament must not be changed by crossing out words or sentences or making notes or written corrections on it.
Revoking a Will
A California will and testament, or any part thereof, can be revoked by any of the following:
- A subsequent will which revokes all or part of the prior will expressly or by different terms in the subsequent will; or
- Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.
Probate is the court-supervised process by law which has as its goal the transfer of assets as set forth in your California last will. At the beginning of a probate administration, a petition is filed with the court, usually by the person or institution named in your will as executor. After notice is given, and a hearing is held, your will is admitted to probate and an executor is appointed.
If your California last will provides that assets shall pass to your surviving spouse at your death, then those assets can be transferred to your surviving spouse through the filing in the probate court of a "spousal property petition," which is a simpler and less expensive procedure than a formal probate administration. If the assets in your name alone at your death do not include an interest in real estate and have a total value of less than $100,000, then generally the beneficiaries under your will may follow a statutory procedure to effect the transfer of those assets pursuant to your will, subject to your debts and expenses, without involving the probate court.
It is extremely important to make a California will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict California state laws.
The following is a very basic summary of California's intestacy laws.
Intestate Descent and Distribution:
If you make a California will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.
- With a surviving spouse: Spouse receives all of decedent's community property and part of separate property. The remaining separate property will be distributed to children, grandchildren, parents, grandparents, siblings, nieces, nephews or other close relatives.
- If not married: Assets will be distributed to children or grandchildren, if any, or to parents, siblings, nieces, nephews or other close relatives.