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California Last Will and Testament

Written by our Legal Team

A Last Will and Testament (also simply called a “will”) is a legal document. It states your wishes for your property and minor children (if any) for after you pass away. It’s also where you name a personal representative to be in charge of settling your affairs.

The legal requirements for making a will in California can be found in California Probate Code § 6100. See below for the basics.

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Making a Will in California

California Will Requirements

To make a valid will in California, certain legal requirements must be met. There are requirements for both the person making the will (called a “testator”), and for the will itself.

Testator Requirements

Regarding testators, the law says:

An individual 18 or more years of age who is of sound mind may make a will. California Probate Code § 6100.

Sound mind generally means that you’re aware of your actions when creating the will. More specifically, it means that at the time the will is made, you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property. Even a person with dementia or Alzheimer’s may be deemed to have a sound mind, if lucid at the moment of signing. If a testator believes there might be any doubt as to his or her mental capacity at the time of the signing, a letter from a doctor affirming mental competence generally can be included with the will.

Will Requirements

Regarding the will itself, the standard requirements are set forth in California Probate Code § 6110.

The law says:

A will shall be in writing and satisfy the requirements of this section.

The will shall be signed by . . . the testator . . . [and] the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) 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 (B) understand that the instrument they sign is the testator’s will.

Although there are various exceptions and special rules, these are the standard requirements for California wills.

In addition, California allows a will to be made without witnesses if it is written by hand by the testator and signed at the end. California Probate Code § 6111. This is called a “holographic will”. Holographic wills offer some convenience, but they come with the risk of making mistakes that could leave a will invalid.

Does my will need to be notarized?

Notarization is not required, but you should definitely make your will “self proved”. Under California law, a self proved will can be admitted to probate court without the testimony of the witnesses to the will. California Probate Code § 8220. When a will that isn’t self proved is submitted to the probate court, the court will require testimony from witnesses, or other proof, to establish that the will is what it claims to be.

A California will is made self proved if the witnesses sign what is called an “attestation clause”. An attestation clause is a written, signed statement, made under penalty of perjury, in which the witnesses confirm that the will was properly executed. Because the statement is made under penalty of perjury, it’s as if the statement were made in court. So, the witnesses don’t need to physically show up and testify.

By the time a will is submitted to a court, it can be difficult to find witnesses and bring them all to court — not to mention the legal costs. So, you should definitely make your will self proved to avoid this hassle.

Do I need an attorney to make a will in California?

No. An attorney is not required to make a will in California. For the vast majority of people, an attorney will simply do the same things that a good will-making software does — ask you questions and then create documents for you based on your information and wishes. However, in certain situations it is a good idea seek legal advice from an attorney, like if you have a child with special needs, or if you have a high net worth (around $10 million) and are concerned about federal estate taxes. In these cases, an attorney can help you navigate special questions and create a proper plan.

What if I have an old will in place?

California law handles old wills in two ways. First, if you have an old will in place, you can cancel it by creating a new one. A good will usually contains a statement that it revokes (cancels) any prior wills. Second, a will can be cancelled simply by physically destroying it. California Probate Code § 6120.

Do I need to file my will?

Under California law, a will must be filed with the court within 30 days after the death of the testator. California Probate Code § 8200. So, after you pass away, your will should be filed in your local probate court by the person named to be your personal representative (also called an “executor” or “administrator”). This will begin the legal process known as “probate” through which your wishes are carried out under court supervision.

In the meantime, store your will in a safe place and make sure the right people know where to find it. Note: It is not a good idea to store a will in a safe deposit box, because accessing the safe deposit box can depend on getting court approval, and getting court approval can depend on what the will says!

Are there limitations on how I can leave my property?

You can generally leave your property however you want. However, married individuals should note: California is a “community property” state. This means that assets acquired during a marriage (or improved with funds earned during a marriage) belong to both spouses equally. Therefore, when one spouse dies, the other, surviving spouse still continues to own his or her half. The will of the deceased covers only the half of the property that was owned by the deceased. Most married individuals leave everything to their spouse anyway, so this usually doesn’t change people’s plans.

Other than that, you can leave your entire estate as you please. Some wills leave everything in a bundle, while others break out specific gifts for specific people. Some leave everything in equal shares, and others say that everything should be sold and the proceeds distributed in specific percentages.

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