In the state of California, the probate code determines the required elements for a valid California will. The testator, or person who devises a will, must be at least 18 years old. They must be of sound mind when they sign the will. A will is a legal document that must be in writing and signed by the testator or in the testator’s name by some other person in the testator’s presence and by the testator’s direction.
Witnesses and Signatures Required for a Valid Will
According to the California probate code, a will must be witnessed by being signed during the testator’s lifetime. The will must be signed by at least two people, each of whom is present at the same time and witnesses either the signing of the will or the testator’s acknowledgement of the signature of the will. These witnesses must understand that the document they sign is the testator’s will. If these requirements are not met, the will shall be treated as valid if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, they intended the will to be the testator’s will.
A person who is generally competent to be a witness may act as a witness to a will. A will is not invalid if it is signed by an interested witness, a party to receive property under the will. There should be at least two other subscribing witnesses to the will who are disinterested witnesses. Otherwise there is a presumption that a witness procured the bestowing of property by duress, menace, fraud or undue influence.
Do-it-Yourself Will or Seek Legal Advice
A testator can craft a will on their own. Drafting a will does not require an attorney, yet an attorney is useful because they can help make sure the will meets all the requirements of the California probate code.
The testator should start by making a list of the different types of personal property, or objects, and real property, including homes and parcels of land, that they own. Even if the testator does not ask the attorney to write the will, they should consult the attorney about the tax consequences of each type of gift, or devise. A testator should look for an estate and trust attorney with experience in dealing with the type of property that the testator wants to devise.
For example, if a testator has multiple businesses, they should look for an estate and trust attorney with experience in business. If a testator has a certain type of business, like a winery, they should look for an estate and trust attorney with experience in the wine industry. The familiarity with the industry gives the attorney an idea of tax issues that could arise. A party who passes down property may want to utilize a will, trusts or a combination of a will and trusts.
Holographic or Handwritten Wills
A will that does not fit the standard requirements may be valid as a holographic, or handwritten, will. California law states that the signature and material provisions of the will, such as what property is being given away and whom it is being given to, must be in the testator's own handwriting. A holographic will may not contain a statement as to the date of execution, or signing.
If the omission results in doubt as to whether the provisions of the will or the inconsistent provisions of another will control, the holographic will may be invalid to the extent of the inconsistency. The exception is if at the time the holographic will is executed, the execution is established to be after the date of the execution of the other will.
If the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid. The exception to this rule is if it is established that the will was executed at a time the testator had testamentary capacity. A statement of testamentary intent in a holographic will may be in the testator’s handwriting or as part of a commercially printed form will. An example of such a statement is, “I, Jane Doe, being of sound mind and memory, do publish this document as my last will and testament.”
What a Will Doesn’t Need
Under California state law, a will does not need to be signed at the end of the document to be valid. A will does not need to be notarized. A will does not need to address certain types of property, such as life insurance policies and retirement benefits.
Those types of funds will be paid directly to named beneficiaries. Money from IRAs and 401(k) accounts transfer automatically as long as receiving parties are named as beneficiaries. Bank accounts set up as pay-on-death accounts (PODs) or “in trust for” accounts with a named beneficiary also pass to a beneficiary without probate.
Costs of Creating a New Will
The cost of drafting a will depends on the hourly rate of an estate planning attorney. The hourly rate for this type of attorney relates to their level of experience. It also hinges on the metropolitan area in which the attorney practices. The cost is usually between $250 and $350 an hour. The cost can go up to between $600 and $1,000 an hour, depending on the complexity of the estate plan. This is particularly true for a testator who wants to pass on a complicated family business.
The cost of drafting a will rose recently because the demand for estates and trusts attorneys has increased during the COVID-19 pandemic. The COVID-19 pandemic induced many young people to draft wills. Yet a person with few assets usually needs a less complicated will. This means the cost will be relatively low.
Trusts Differ From Wills
A living trust is different from a will or a testamentary trust, both of which take effect after a person bestowing property dies. A living trust goes into effect during the settlor's, or trust maker’s, lifetime. When a person sets up a living trust, they can be the settlor, trustee and beneficiary of the trust. They retain full control over the property and have the right to use and spend it.
Advantages of Living Trusts
The advantage of establishing a living trust is that probate is not needed to pass on property. Probate typically costs between 4 percent and 7 percent of the total value of the estate. The process of probate takes time, usually no more than one year.
A living trust saves on these costs. It also helps a settlor avoid or reduce estate taxes, gift taxes and income taxes, but a living trust does not shield a settlor from creditors.
A creditor of a settlor can go after trust property just as if the settlor still owned the assets. Also, a trust is not a public record. The general public and individuals who are not beneficiaries do not have a right to know about the assets in a trust.
Pour Over Wills
A party who creates a living trust should also create a "pour over" will. This is a backup for any property that was not correctly transferred to the living trust while the settlor was alive. A pour over will ensures assets added to a trust will be ultimately distributed to the beneficiaries named in the trust.
California considers a written will from another state as valid if that will complies with the laws of the place where it was executed. California will also consider the will as valid if execution of the will at the time of the testator’s death complies with the place where the testator lived, has a home or is a citizen. Further, California will consider a will as valid if the will complies with California law.
- California Probate Code: Section 6110-6113, Execution of Wills
- CNBC: Op-ed. More People Are Creating Wills Amid the Pandemic
- The Superior Court of California, County of Santa Clara: County of Santa Clara
- The Superior Court of California, County of Santa Clara: About Probate, How to Probate a Decedent's Estate
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.