How to create a Basic Will in California
Creating a will in California involves several steps. Here is an overview of the general process to create a Will in California:
- Eligibility: To create a will in California, you must be at least 18 years old and of sound mind, meaning you understand the nature and consequences of creating a will.
- Gather information: Before meeting with an attorney or starting the process on your own, gather information about your assets, debts, and beneficiaries. Make a list of your properties, bank accounts, investments, personal belongings, and other assets you want to include in the will.
- Choose an executor: Select someone you trust to be the executor of your will. The executor will be responsible for ensuring that your wishes are carried out and handling the legal aspects of distributing your estate.
- Draft the will: With the help of an attorney or using an online template, draft your will. The will should include your name, address, and a statement that it is your last will and testament. It should also appoint the executor and outline how you want your assets distributed to beneficiaries.
- Witnesses and signatures: For your will to be valid in California, it must be signed by you (the testator) and witnessed by at least two competent adults who are not beneficiaries or closely related to the beneficiaries. Both witnesses must be present at the same time during the signing.
- Safekeeping: Store your will in a safe and accessible place. Inform your executor about the location of the will or keep it with your attorney or in a safe deposit box.
- Keep the will updated: Review and update your will periodically, especially after significant life events like marriage, divorce, birth of children, or acquiring new assets.
How to create a Will online for free
Following the steps outlined above, you can create your own Last Will and Testament online for free. Our template below is suitable for most family situations. Though it’s always recommended to have an attorney review your Will when possible.
What are the different types of Wills you can create in California?
This is the most basic and common type of will. It outlines how your assets will be distributed among your beneficiaries, and it may include provisions for guardianship of minor children. Simple wills are suitable for individuals with straightforward estate plans.
A holographic will is handwritten and signed by the testator (the person making the will) but may not have been witnessed. Some jurisdictions recognize holographic wills, but they can be subject to stricter requirements and may not be accepted in all situations.
A conditional will includes specific conditions that must be met for the will’s instructions to take effect. For example, the will might state that a certain beneficiary will inherit only if they reach a certain age or fulfill certain obligations.
In some jurisdictions, an unsolemn will is a will that has not been formally witnessed, but it may still be considered valid under certain circumstances, such as if the testator was in danger of death.
What are the benefits of creating a simple Will in California?
- Control and autonomy: Creating a will lets you decide who will inherit your assets, including money, property, and personal belongings. You have the power to ensure your things go to the people or causes you care about the most.
- Guardianship of minors: If you have young children, a will allows you to appoint a guardian to care for them if both parents pass away. It gives you peace of mind knowing your kids will be taken care of by someone you trust.
- Avoiding family conflicts: By laying out your wishes clearly in a will, you can help minimize potential disagreements among your family members regarding the division of your assets.
- Efficient probate process: With a will in place, the legal process of distributing your estate, known as probate, can be more streamlined and faster, reducing stress for your loved ones during a difficult time.
- Executor appointment: You can nominate an executor in your will, someone responsible for making sure your wishes are carried out and your estate is distributed properly.
- Philanthropic opportunities: Through a will, you have the chance to leave part of your estate to charitable organizations or causes you support, leaving a positive impact on society.
- Peace of mind: By creating a will, you gain the satisfaction of knowing you’ve taken steps to plan for the future and safeguard your loved ones’ interests.
How much does it cost to create a Last Will & Testament in California?
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Legal Clinics or Workshops: Some non-profit organizations or legal aid societies offer free or low-cost will drafting services to eligible individuals, especially seniors or those with low income.
Paralegal Services: Some paralegals offer document preparation services. While they are generally cheaper than attorneys, paralegals cannot give legal advice. Their services can range from $100 to $500 for a basic will.
Additional Costs: There may be additional costs for notarization, witnesses, and any other requirements for making the will valid in California.
Updating or Changing a Will: If you need to update or change your will in the future, you might incur additional costs, depending on the method you choose and the extent of the changes.
Legal requirements for a basic Will in California
Creating a valid will in California requires adherence to certain legal requirements.
- Age Requirement: The person creating the will, known as the testator, must be at least 18 years old.
- Mental Capacity: The testator must be of sound mind, which means they understand the nature of the will, know the nature and extent of their property, and recognize their relation to living descendants, spouse, and others whose interests are affected by the will.
- Written Document: While California primarily recognizes written wills, they can be either typewritten (often referred to as formal wills) or handwritten (holographic wills).
- Typewritten Will: This should ideally be prepared with legal oversight or through a reliable template to ensure it covers all necessary aspects.
- Holographic Will: This is a will that is written, dated, and signed entirely by the hand of the testator. It doesn’t need to be witnessed, but it’s crucial that material provisions and the testator’s signature are in the testator’s handwriting. It’s essential to ensure clarity in the provisions to avoid potential disputes.
- Witnesses: A typewritten will must be signed by the testator and witnessed by at least two individuals who both:
- Were present at the same time when the testator signed or acknowledged the will.
- Understand that the document is the testator’s will.
- Signature: The will must be signed by the testator or by another individual in the testator’s presence and at the testator’s direction.
- Self-Proving Affidavit: While not a requirement, including a self-proving affidavit can expedite the probate process. This affidavit is a notarized document signed by the testator and witnesses, affirming the authenticity of the will.
- No Requirement for Notarization: California does not require wills to be notarized to be considered valid. However, if the will contains a self-proving affidavit, notarization is necessary for that part.
- Revocation or Alteration: A will can be revoked or changed by the testator during their lifetime through various methods, such as creating a subsequent will or codicil or intentionally burning, tearing, canceling, obliterating, or destroying it.
- Oral Wills: California generally doesn’t recognize oral wills, but there are very narrow exceptions related to oral wills made upon a person’s deathbed, and even then, they’re rarely upheld.
Notarizing a Will in California
In California, there is no legal requirement to notarize a will for it to be considered valid. However, the decision to notarize a will can have implications based on the presence of a “self-proving affidavit.”
Self-Proving Affidavit and Notarization: While the will itself doesn’t need to be notarized, a self-proving affidavit attached to the will should be. A self-proving affidavit is a notarized document signed by the testator and the witnesses that verifies they all properly executed the will. This affidavit can expedite the probate process because, with it, the court can accept the will without having to contact the signing witnesses to confirm the will’s authenticity.
If I move to another state, is my California Will still valid?
If you move to another state, your California will generally remains valid, especially if it was validly executed according to California’s laws. However, there are some important considerations to bear in mind:
Different State Laws: While many states have similar basic requirements for will validity, such as the testator’s age and mental capacity and the need for witnesses, the specific details can vary. Some states may have nuances in their requirements, such as the number of witnesses needed, that could potentially impact the validity or interpretation of certain provisions in your will.
Property and Specific References: If you acquired property in your new state or have specific references in your will that are tied to California, these might need reconsideration and revision to suit your new state’s laws or context.
Executor/Appointee Regulations: Some states have regulations concerning out-of-state executors or other appointees. If your will names a California resident as your executor, the new state might impose additional requirements or restrictions on them.
Marital Property: If you move from a community property state like California to a common law property state (or vice versa), it could affect how marital property is viewed and divided. This change could have implications for how assets are distributed in your will.
Updates and Life Changes: Moving to a new state is a significant life event, and it’s a good time to review your will. Other changes might have occurred in your life, such as births, deaths, marriages, or divorces, which might also warrant updates to your estate plans.
New State’s Provisions for Out-of-State Wills: Some states have provisions that specifically address the validity of wills executed in other states. These provisions might explicitly validate out-of-state wills if they were validly executed under the laws of the originating state.
Recommendation: While your California will might remain valid after moving, it’s wise to consult with an estate planning attorney in your new state. They can review your will to ensure it complies with the new state’s laws, and they can advise on any updates or revisions that might be beneficial or necessary. This proactive approach can save potential complications and disputes down the road.
What are the executor requirements for a Will in California?
In California, the law sets forth certain requirements and considerations for individuals to serve as executors of a will. Here are the primary requirements and considerations for an executor in California:
Age: The executor must be at least 18 years old.
Mental Competency: The individual must be of sound mind, which means they need to understand the duties and responsibilities they’re undertaking as an executor.
No Felony Convictions: California tends to disfavor appointing individuals with felony convictions as executors. Depending on the nature and circumstances of the felony, a court might determine that a person is not suitable to act as an executor if there’s a potential conflict of interest or concern about the individual’s trustworthiness.
Non-Residents: While a California resident is not a strict requirement for an executor, out-of-state executors might face additional stipulations. For example, they may be required to appoint an in-state agent for service of process, or post a bond (even if the will waives this requirement).
Bonding: Often, an executor may be required to post a bond (a kind of insurance policy that protects the estate’s beneficiaries against potential losses caused by executor misconduct). However, the testator can specify in their will that the bond requirement be waived.
No Conflicts of Interest: The court may evaluate potential conflicts of interest. For instance, if someone stands to benefit inappropriately from their position as executor, the court might choose not to appoint them.
Court Discretion: Ultimately, even if someone meets all the legal requirements, the court can use its discretion to determine if an individual is suitable to serve as an executor. The court’s primary concern is the faithful and efficient administration of the estate.
Willingness to Serve: It’s also essential to remember that being named as an executor in a will doesn’t obligate the individual to serve. If they’re unwilling or unable to undertake the responsibilities, they can decline.
If you’re considering naming an executor in your will or have been named as one, it’s a good idea to consult with an estate planning attorney in California to fully understand the responsibilities and legal implications.
Living Trust Vs Will: Which one is better?
To put it simply, Living Trusts are significantly better than Wills in many aspects but the most important reason is that a Trust allows you to bypass the probate process, which is the expensive, lengthy, and stressful 6-12 month process where courts validate Wills and distribute assets to beneficiaries. This process can be extremely stressful for your family. Both tools can be used simultaneously in estate planning, with a Will often serving as a “backup” to capture any assets unintentionally left out of a trust. Deciding between a Will, a Trust, or using both depends on individual circumstances and objectives. Read more about The Benefits of a Living Trust
Here is a breakdown of the differences:
- Will: A legal document that specifies how an individual’s assets will be distributed upon their death.
- Trust: A legal entity where one party, the trustor, grants another party, the trustee, the right to hold and manage assets for the benefit of third parties, the beneficiaries.
- Will: Assets specified in a Will go through the probate process, where a court ensures the deceased person’s wishes (as specified in the will) are followed. This can take 6-12 months and be very expensive.
- Trust: Assets held in a trust typically bypass the probate process. This can result in a significantly faster, less costly asset distribution. Saving your family from expensive legal fees.
- Will: Because it goes through probate, a will becomes a public record, which means anyone can access its contents.
- Trust: Remains private, and its details aren’t usually accessible to the public. You can also create a Trust using an anonymous name to increase privacy further.
- Will: Provides instructions for asset distribution upon death.
- Trust: With a living trust, you can set specific conditions on how your assets are managed and distributed. For example, you can stagger distributions to beneficiaries or set up provisions to protect assets for minor children or beneficiaries with special needs. This level of flexibility is often more challenging to achieve with a will.
- Will: Does not provide any particular protection against creditors or lawsuits.
- Trust: Certain types, like irrevocable trusts, can offer protection against creditors or legal claims. As well as protection from family disputes.
- Will: No tax benefits.
- Trust: Certain trusts can provide tax advantages or help in estate tax planning.