Making a will is an easy and cost-effective way to just get your affairs in order. Get some piece of mind knowing that your wishes will be honored. You get life insurance if your die unexpectedly, you get car insurance if you get in a crash but why put off making a will which is insurance for your desires and property in the event of death.
Here are the key considerations when making a California will:
1. Decide who will inherit your property.
2. Choose an executor to handle your estate.
3. Choose a guardian for your minor children.
4. Make your will.
5. Sign your will in front of witnesses.
Why Should You Make a California Will?
A will can help protect your family and your property. A will can be used to:
- Name the persons who will receive your property/estate
- name a trusted person to manage property left to minor children
- name a trusted person to be the guardian for minor children, and
- name an executor, the person entrusted with carrying out the terms of your will and managing your estate.
What Happens if You Do Not Have a Will?
If you die without a will, California’s intestate law will dictate how your property will be distributed. California’s intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you do not have a spouse or children, your grandchildren or your parents will get your property. The list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles. If you have no living relatives by blood or marriage, the state will take your property.
Do You Need a Lawyer to Make a Will?
You can make your own will in California but an estate planning attorney, especially one certified as a specialist, can help ensure your desires are properly documented and the will is properly executed. Oftentimes what seems like a simple will can become a fairly complex will after further review of the situation. An attorney can help you ask the right questions.
What Are the Requirements for Writing a Will in California?
To make a will in California, you must be:
- an individual 18 years of age or older and be of sound mind.
- The term “of sound mind” means that you 1) understand what it means to make a will, 2) understand what property you own, 3) understand and remember who your relatives are, and 3) do not have a mental health disorder that would cause you to have delusions or hallucinations affecting what you would do with your property.
- You must make your will in writing (on hard copy on actual paper). It cannot be on an audio, video, or any other digital file format. Wills are typed and in print. California does permit handwritten wills, but they are usually just for temporary situations when you do not have time to get a normal will prepared— such as going on a vacation or into surgery.
How Do You Sign Your California Will?
To properly execute a will in California, you must:
1. Sign your will in front of two witnesses.
2. Have your witnesses sign your will at the same time as each other — either when they witness you signing your will or (if you have already signed the will) when they witness you acknowledging your signature on your will.
Neither witness should be a beneficiary of the will. California law presumes that any gift made to a witness of the will was made under duress, and the witness could lose the gift if it is more than what he or she would have received under the intestacy law. It is also not recommended that a relative be used as a witness. Note that holographic (handwritten) wills do not require witnesses.
Do You Need to Have the Will Notarized?
Notarization is not required in California to make your will legal. California allows your will to be self-proved. As long as you sign and witness your will correctly, your will does not have to be proved to the probate court. Note that there is special self-proving language on the signing pages and the witnesses have to properly sign and provide certain personal information. Improper signing of the will by you or the witnesses can lead to problems later on if a probate has to be filed.
Should My Will Name an Executor?
Yes. In California, you will use your will to name an executor- the person who will ensure that the provisions in your will are carried out after your death. Your executor serves and important role with many responsibilities. Careful selection is required. If no executor is named, the probate court will appoint someone to take on the job of administering your estate.
Can You Revoke or Change Your Will?
In California, you can revoke or change may your will at any time. You can revoke your will by:
- burning, tearing, canceling, obliterating, or destroying the will with the purpose to revoke it, or
- making a new will that states it is revoking the old will.
Note that if you and your spouse divorce, any gift you gave to your spouse in the will and any provision that named your spouse as an executor or trustee is automatically revoked.
If you need to make simple changes to your will, you can make an amendment to your existing will (the amendment is called a “codicil”). You could also just make a new will. In either case, you will need to finalize your changes with the same formalities you used to make your original will.
For questions contact David A. Arietta, Esq., a certified specialist in estate planning, trusts, and probate, at (925) 472-8000.