The following questions and answers about the California
statutory will are taken directly from California Probate Code Section 6240. If you are thinking about making a California
statutory will, read these questions and answers carefully. They will help you decide if a statutory will
is right for you. Also, read Statutory
Wills for more general information about using this type of fill-in-the-blank
QUESTIONS AND ANSWERS ABOUT THIS CALIFORNIA STATUTORY WILL
The following information, in question and answer form, is not a
part of the California Statutory Will. It is designed to help you understand
about Wills and to decide if this Will meets your needs. This Will is in a
simple form. The complete text of each paragraph of this Will is printed at the
end of the Will.
- What happens if I die without a Will? If you die without
a Will, what you own (your “assets”) in your name alone will be divided among
your spouse, domestic partner, children, or other relatives according to state
law. The court will appoint a relative to collect and distribute your assets.
- What can a Will do for me? In a Will you may designate
who will receive your assets at your death. You may designate someone (called
an “executor”) to appear before the court, collect your assets, pay your debts
and taxes, and distribute your assets as you specify. You may nominate someone
(called a “guardian”) to raise your children who are under age 18. You may
designate someone (called a “custodian”) to manage assets for your children
until they reach any age from 18 to 25.
- Does a Will avoid probate? No. With or without a Will,
assets in your name alone usually go through the court probate process. The
court's first job is to determine if your Will is valid.
- What is community property? Can I give away my share in
my Will? If you are married and you or your spouse earned money during your
marriage from work and wages, that money (and the assets bought with it) is
community property. Your Will can only give away your one-half of community
property. Your Will cannot give away your spouse's one-half of community
- Does my Will give away all of my assets? Do all assets
go through probate? No. Money in a joint tenancy bank account automatically
belongs to the other named owner without probate. If your spouse, domestic
partner, or child is on the deed to your house as a joint tenant, the house
automatically passes to him or her. Life insurance and retirement plan benefits
may pass directly to the named beneficiary. A Will does not necessarily control
how these types of “nonprobate” assets pass at your death.
- Are there different kinds of Wills? Yes. There are
handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory
Wills. All are valid if done precisely as the law requires. You should see a
lawyer if you do not want to use this Statutory Will or if you do not
understand this form.
- . Who may use this Will? This Will is based on California
law. It is designed only for California residents. You may use this form if you
are single, married, a member of a domestic partnership, or divorced. You must
be age 18 or older and of sound mind.
- Are there any reasons why I should NOT use this Statutory
Will? Yes. This is a simple Will. It is not designed to reduce death taxes
or other taxes. Talk to a lawyer to do tax planning, especially if (i) your
assets will be worth more than $600,000 or the current amount excluded from
estate tax under federal law at your death, (ii) you own business-related
assets, (iii) you want to create a trust fund for your children's education or
other purposes, (iv) you own assets in some other state, (v) you want to
disinherit your spouse, domestic partner, or descendants, or (vi) you have
valuable interests in pension or profit-sharing plans. You should talk to a
lawyer who knows about estate planning if this Will does not meet your needs.
This Will treats most adopted children like natural children. You should talk
to a lawyer if you have stepchildren or foster children whom you have not
- May I add or cross out any words on this Will? No. If
you do, the Will may be invalid or the court may ignore the crossed out or
added words. You may only fill in the blanks. You may amend this Will by a
separate document (called a codicil). Talk to a lawyer if you want to do
something with your assets which is not allowed in this form.
- May I change my Will? Yes. A Will is not effective
until you die. You may make and sign a new Will. You may change your Will at
any time, but only by an amendment (called a codicil). You can give away or
sell your assets before your death. Your Will only acts on what you own at
- Where should I keep my Will? After you and the
witnesses sign the Will, keep your Will in your safe deposit box or other safe
place. You should tell trusted family members where your Will is kept.
- When should I change my Will? You should make and sign
a new Will if you marry, divorce, or terminate your domestic partnership after
you sign this Will. Divorce, annulment, or termination of a domestic
partnership automatically cancels all property stated to pass to a former
husband, wife, or domestic partner under this Will, and revokes the designation
of a former spouse or domestic partner as executor, custodian, or guardian. You
should sign a new Will when you have more children, or if your spouse or a
child dies, or a domestic partner dies or marries. You may want to change your
Will if there is a large change in the value of your assets. You may also want
to change your Will if you enter a domestic partnership or your domestic
partnership has been terminated after you sign this Will.
- What can I do if I do not understand something in this
Will? If there is anything in this Will you do not understand, ask a lawyer
to explain it to you.
- What is an executor? An “executor” is the person you
name to collect your assets, pay your debts and taxes, and distribute your
assets as the court directs. It may be a person or it may be a qualified bank
or trust company.
- Should I require a bond? You may require that an
executor post a “bond.” A bond is a form of insurance to replace assets that
may be mismanaged or stolen by the executor. The cost of the bond is paid from
the estate's assets.
- What is a guardian? Do I need to designate one? If you
have children under age 18, you should designate a guardian of their “persons”
to raise them.
- What is a custodian? Do I need to designate one? A
“custodian” is a person you may designate to manage assets for someone
(including a child) who is under the age of 25 and who receives assets under
your Will. The custodian manages the assets and pays as much as the custodian determines
is proper for health, support, maintenance, and education. The custodian
delivers what is left to the person when the person reaches the age you choose
(from 18 to 25). No bond is required of a custodian.
- Should I ask people if they are willing to serve before I
designate them as executor, guardian, or custodian? Probably yes. Some
people and banks and trust companies may not consent to serve or may not be
qualified to act.
- What happens if I make a gift in this Will to someone and
that person dies before I do? A person must survive you by 120 hours to
take a gift under this Will. If that person does not, then the gift fails and
goes with the rest of your assets. If the person who does not survive you is a
relative of yours or your spouse, then certain assets may go to the relative's
- What is a trust? There are many kinds of trusts,
including trusts created by Wills (called “testamentary trusts”) and trusts
created during your lifetime (called “revocable living trusts”). Both kinds of
trusts are long-term arrangements in which a manager (called a “trustee”)
invests and manages assets for someone (called a “beneficiary”) on the terms
you specify. Trusts are too complicated to be used in this Statutory Will. You
should see a lawyer if you want to create a trust.
- What is a domestic partner? You have a domestic partner
if you have met certain legal requirements and filed a form entitled
“Declaration of Domestic Partnership” with the Secretary of State.
Notwithstanding Section 299.6 of the Family Code, if
you have not filed a Declaration of Domestic Partnership with the Secretary of
State, you do not meet the required definition and should not use the section
of the Statutory Will form that refers to domestic partners even if you have
registered your domestic partnership with another governmental entity. If you
are unsure if you have a domestic partner or if your domestic partnership meets
the required definition, please contact the Secretary of State's office.