A last will ensures your property is passed according to your wishes when you pass away. Find out more about the specific laws that affect last wills in New Hampshire, how to get a last will, how to change a last will, and more.
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updated November 29, 2023 · 5min read
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.
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.
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.
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:
The basic requirements for a California last will and testament include the following:
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.
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.
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.”
LegalZoom can help you start a last will online in three easy steps.
by Michelle Kaminsky, Esq.
Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Jur...
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