Most people know that they should have a will, but many don't know what a will is and how it works.
Here’s a quick checklist for making a will in California:
A last will and testament (more commonly known as a will) can help protect your family and your property. A will can be used to:
Should you die without a will, state "intestacy" laws 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. In the absence of a spouse or children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, and your spouse's relatives. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
No. You can make your own will in California, using Nolo's do-it-yourself online will or will software. You may, however, want to consult a lawyer in some situations; for example, if you suspect your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.
To make a will in California, you must be:
In this situation, “of sound mind” means that you:
Though it may seem obvious, the probate code also points out that you may not use your will to dispose of property that is not yours. Cal. Prob. Code § 6101.
You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see “Can I Make a Digital or Electronic Will?,” below.) Type and print your will using a computer, or you can use a typewriter. California does permit handwritten wills (Cal. Prob. § Code 6111), but they are usually not a good idea.
To finalize your will in California, you must:
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. Cal. Prob. Code § 6112.
Holographic (handwritten) wills do not require witnesses. Cal. Prob. § Code 6111.
Notarization is not required in California to make your will legal. Some states allow you to make your will “self-proving” by signing a special affidavit in front of a notary that accompanies the will. However, California allows your will to be self-proved without a self-proving affidavit. As long as you sign and witness your will correctly, your will does not have to be proved to the probate court, and there’s no need to make a self-proving affidavit. Cal. Prob. Code § 6113.
Yes. In California, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's will software and online will produce a letter to your executor that generally explains what the job requires. If no executor is named, the probate court will appoint someone to take on the job of winding up your estate.
In California, you revoke or change may your will at any time. You revoke your will by:
If you and your spouse divorce or your marriage is annulled, any gift you gave your spouse in the will and any provision that named your spouse as an executor or trustee is automatically revoked unless your will expressly says otherwise. Cal. Prob. Code § 6122.
If you need to make changes to your will, it’s best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will -- this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).
In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although these “electronic wills” are currently available in only a minority of states, many other states (including California) are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future.
You can find California’s laws about making wills here: California Probate Code Division 6 Wills and Intestate Succession Part I Wills.
For more on California estate planning issues, see our section on California Estate Planning.