A last will and testament can be critical for the distribution of real and personal property upon your death. California wills give the testator (the person writing the will) the opportunity to leave assets to a spouse, domestic partner, children, relatives, friends, charitable organizations, and others; even provisions for pet care may be included.
Note that a living will addresses a different situation in that it provides instructions should you become incapacitated and incapable of making decisions regarding your medical care. If necessary, a living will would take effect while a person is still alive, while a last will and testament only takes effect upon a person’s death.
Do you need a last will and testament?
A last will and testament are beneficial for many reasons, including that it can offer the testator great peace of mind knowing that his property will be distributed according to his wishes upon his demise. Moreover, with a will, the testator can choose the estate's executor, the person who will be responsible for carrying out the will's bequests.
A will can serve various purposes, but the most important is to provide the testator with the opportunity to express how assets should be divided upon her death. LegalZoom’s California last will and testament can also make sure that any “residue” of the estate, assets that remain after distribution, end up where the testator intended.
Another benefit of a California will is that it can allow you to name someone as the legal guardian of your children and/or handle any property left to minor children.
A last will and testament can also help the estate either minimize probate or avoid it altogether. Probate is the court-supervised process of distributing the estate of a deceased person and begins when a petition is filed with the court, usually by the executor named in the will. The court then provides notice, holds a hearing, admits the will to probate, and appoints an official executor.
California does provide a special streamlined process for surviving spouses and registered domestic partners that allows assets to pass to them without going through a full probate proceeding. If a will provides that assets should pass to a surviving spouse or registered domestic partner, the spouse or partner can simply file a Spousal or Domestic Partner Property Petition and avoid a more complicated probate process.
Another situation that could avoid probate is if the person who died left $150,000 or less. There are exceptions to the type of property that may be included within the calculation of that value, but if the estate qualifies, any real or personal property included may be transferred by writing an affidavit rather than by going through probate.
Intestacy: When there is no will
Someone who dies without a will is called “intestate,” and the laws of intestacy are invoked. In California, this means that property is distributed first to a spouse or domestic partner, followed by children, parents, siblings, grandparents, aunts and uncles, cousins, and even to the spouse’s surviving relatives. If there are no living relatives to lay claim to your property, it will be turned over to the state. Accordingly, it is essential to make a California will if you would like to have control over the distribution of your assets and avoid the application of intestacy laws.
Exceptions to ability to distribute property
Not all property you own can be distributed according to a will; however, you may bequeath only assets titled in your name at your death. Accordingly, any property owned as a joint tenant as well as community property with right of survivorship, and the community property of the testator’s spouse or registered domestic partner is not affected by a will’s provisions.
Other types of assets not affected by a will include the following:
- Life insurance proceeds: Your designated beneficiary of the policy receives life insurance proceeds.
- Retirement plans: The designated beneficiary of a 401(k) or an IRA receives assets of these retirement plans.
- “Transfer on death” or “pay on death” accounts: The designated beneficiary on some securities and brokerage accounts receives the assets in the account.
- Living trusts: Assets in living trusts are distributed according to the terms of the trust with the aid of the designated successor trustee, regardless of will provisions.
Form a last will in California
The basic requirements for a California last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind, which means capable of making decisions and reasoning.
- Signature: The will must be signed by one of the following:
- Some other person in the testator’s name in the testator’s presence, by the testator’s direction
- Conservator under court order to make a will.
- Witnesses: A California will must be signed by at least two people who are present at the same time.
- Writing: A will cannot be oral; it must be in writing.
- Beneficiaries: California law allows property to be distributed to individuals, corporations, unincorporated associations, societies, lodges, counties, cities, municipal corporations, states, countries, and other governmental entities, among others.
Other recognized last wills in California
In addition to the last will and testament as described above, California also recognizes holographic wills as valid legal documents. A holographic will is handwritten and must be signed, and legible. No witnesses or notarization is required.
California also recognizes a “fill-in-the-blanks” will form, called the California Statutory Will, which is essentially a last will template intended for those with small, simple estates.
Changing a California last will and testament
A California last will and testament may be changed whenever the testator desires; indeed, the State Bar of California recommends you review your will “periodically” to address any circumstances or intentions that may have changed since you drafted it.
The process for changing a California will is via codicil, an amendment to the will that must follow the same procedures as the original will. Simply crossing out words or sentences or adding notes or corrections will not constitute a valid codicil in California.
Revoking a California last will and testament
The revocation of a California will can be accomplished by expressly revoking all or part of the previous version or by inconsistent terms in a subsequent will. Additionally, a California will can be revoked by 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.”
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