What Constitutes a Legal Will in California? – 10 Simple Guidelines

What Constitutes a Legal Will in California? – 10 Simple Guidelines

Every state has its own specific rules about what makes a will legal or valid. The probate code in California establishes the requirements for creating a Last Will and Testament document.

Here are 10 simple guidelines to help you get started in preparing a legal Last Will and Testament.

1. The content of your Last Will and Testament document should be the instructions for the distribution of your property to people and organizations of your choosing after your death.

2. You may also use the Last Will and Testament document to appoint a legal guardian to take care of your minor children after you pass away.

3. Anyone over 18 years old and of sound mind can create a Last Will and Testament document.

4. This document should be dated and signed by you, the Testator, in the presence of two witnesses who must also sign it.

5. You should select witnesses who are disinterested, meaning – they should not be named as beneficiaries in your Last Will and Testament.

6. The Last Will and Testament document must be in writing, either handwritten or typed. 

7. Some special rules that apply to handwritten or holographic wills –
  • It should be written in the testator’s handwriting
  • It should be signed and dated by the testator
  • It does not necessarily need to be signed in the presence of witnesses
  • It should be clear and legible for the probate court to read and understand
  • The beneficiaries or the executor must show proof that the will is indeed in the testator’s handwriting
8. Some special rules that apply to statutory or type-written wills –
  • The probate code in California allows the use of this downloadable California Statutory Will form template for your convenience
  • The form can be used by single, married or divorced individuals with relatively small estates
  • As with other forms of type-written wills, it should be signed and dated by the testator in front of two witnesses who should also sign it
  • The form does not allow alterations or else it will be invalidated

9. A quick side note on “The Harmless Error Doctrine” – In case there’s an error in the document’s text or signature, the probate court can validate it as long as there is clear evidence proving that the testator intended it to be part of their will.

10. If the court invalidates your will due to errors, it will distribute your property or appoint the guardianship of your minor children according to California intestacy laws, which may not conform with your wishes.

What’s Next?

Please don’t take this list as legal advice. To help you create a valid and legally binding Last Will and Testament document, it’s best to consult the legal expertise of an estate planning attorney.

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10 Reasons Why You Need a Last Will and Testament

10 Reasons Why You Need a Last Will and Testament

Writing a last will and testament is hard because it forces us to confront the certainty of death. But if you don’t have a will (or some other strategy for transferring wealth when you pass on) the court determines how your assets will be distributed under state law, and you won’t have a say on any of it. This is a tragic scenario that can be easily avoided with a legal last will and testament.

There are definitely more than 10 reasons to write a last will and testament. We have identified the most critical ones to help you get into the right mindset as you prepare to create the most personal and most important piece of writing that you will ever make.

Below are ten reasons why a last will and testament is important:

1. It’s for your own peace of mind

First and foremost, having a last will and testament gives you great peace of mind knowing that your property will be distributed according to your wishes when you die. Also, with a will, you can choose your estate’s executor – the person who will be responsible for carrying out your instructions.

2. It avoids confusion and potential conflict over who gets what

If you die without a will, the court will make the decision on how to distribute your wealth according to intestate succession laws – potentially leaving your heirs disappointed or short-changed. Creating a will removes any fear or doubt on who gets what by setting forth your instructions regarding the disposition of your wealth in advance. This eases the anxiety of your surviving family members during a highly emotional time.

3. It removes uncertainty over issues related to wealth

Often, assigning a monetary value on your assets is a difficult task but it needs to be done. The process of creating a will forces you to take stock of your property and assets, and helps you think strategically as you plan for the financial future of your loved ones when you die.

4. It carries out your wishes for the disposition of remains

The disposition of last remains is a common source of conflict among the surviving family members. Often, relatives have opposing views as to precisely what the deceased’s wishes were. Having a will that lays out specific instructions for funeral arrangements – whether your remains should be buried, cremated or donated to medical science – clears any confusion and allows your will’s executor to take the right course of action.

5. It facilitates the transfer of your assets to beneficiaries who would not receive anything under intestate succession rules

You will need a will if you want to leave specific assets to specific heirs. Intestate Succession rules in California distribute property first to surviving spouses or registered domestic partners, followed by children, parents, siblings, aunts, uncles, cousins and so on. For example, if you wish to donate a part of your estate to charity, you will need to specify this in your will. Or if you want to divide your financial assets equally among your children but leave the house to a non-relative, you can only accomplish this with a will.

In case you have no living relatives, your property will be turned over to the state.

6. It allows you to appoint the legal guardian of your children

A will can also settle other issues not directly related to wealth or finances. If you have minor children and you die without a will, the judge will appoint the legal guardian for your kids. Sure, the judge will always consider what’s best for them. But he does not know your family or the guardian that he’s about to task with your children’s care. Having a will ensures that your intentions are carried out with regard to your appointed guardian.

7. It allows you to name someone to manage finances and property left to minor children

There are two distinct types of guardians in California law entrusted with the care of minor children – the guardian of person and guardian of the estate. The guardian of person is the child’s caregiver and is responsible for their health and well-being, e.g. housing, education, medical etc. While the guardian of the estate acts as the trustee of the minor child and is responsible for the management of the child’s finances, e.g. income, assets, property and so on.

8. It lets you designate an executor to carry out your wishes on your behalf

Your appointed executor is empowered by law to administer your estate on your behalf. If you don’t leave a will, the role of your executor is filled by a representative designated by the court. It’s critical that you make this appointment because the executor is tasked with the serious responsibility of not only distributing your estate according to your wishes but also managing your credit, handling legal matters and filing tax returns.

9. It helps minimize probate or the intervention of the court

Probate is a complicated, time-wasting, court-supervised process of determining how your estate should be distributed. It starts with filing a petition in court followed by a series of hearings and the naming of a court-appointed executor. There’s no telling how long this process could last. One thing is for sure, the uncertainty and the wait is stressful for the surviving relatives. Don’t let this happen to your family. To help minimize probate or even avoid it altogether – make sure to prepare a last will and testament coupled with a living trust document.

10. It lets you transfer assets that are not covered by a living trust

If you already have a living trust, it’s important to back that up with an updated will to cover any assets that may be excluded from the trust. A trust only covers assets that are enrolled in the trust. So, without a will, assets that are not part of your trust would have to go through the probate process.

FREQUENTLY ASKED QUESTIONS ABOUT WILLS

Are there exceptions to distributing property with a will?

Not everything that you own can be included in your will. You can only bequeath assets registered in your name at the time of your death. So, yes, there are exceptions. For example, community property that you share with your spouse or registered domestic partner should not be included in your will.

What are the other types of assets that should not be included in a will?

Retirement plans, i.e. 401(k) or an IRA and life insurance policies already state the beneficiaries or the recipients of these proceeds and should not be included in your will.
Also, the assets detailed in a living trust should not be a part of your will as they will be distributed according to the terms of the trust through the designated successor trustee.

Can you change your Last Will and Testament?

A California last will and testament may be changed whenever you please. It is recommended that you review your will annually to include changes in your family circumstances, like the birth of a new child, for example. Just make sure to amend your will according to the same procedures and format as the original. Simply adding notes, or making direct edits are not considered valid amendments in California.

Can you revoke your Last Will and Testament?

You can revoke a part or the entirety of your will by being “burned, torn, canceled, obliterated, or destroyed,” with your expressed intention of revoking as the “testator” or the author of the will.

READY TO CREATE YOUR LAST WILL AND TESTAMENT DOCUMENT?

It starts with our Right Fit Meeting™, where together we determine whether our firm is right for you. If you decide to work with us, together we’ll draft a last will and testament as part of your estate planning strategy. Are you ready to get started? Click the button below and schedule a call now.

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Davis, CA 95616.

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