Death isn't a nice topic to talk about, which probably explains why only four out of every 10 Americans have written down their last wishes. Yet, if there's no last will after death, the state get to decide who inherits your property, not you. Writing a will doesn't have to be difficult. As long as it's clear and readable, and ends with a valid signature and the signatures of witnesses, your will should be valid in the state of California.
How to Make a Will in California
A will is a document that you write during your lifetime which gives instructions for what should happen to your possessions when you pass away. The crucial element is that it must comply with the requirements for wills in your state. Often, relatives of the deceased come across a document that looks like a will and reads like a will, but it isn't a will because some key legal elements are missing. In California, those elements are:
- The will must be in writing.
- The will must be signed by the person making the will, who is called the testator.
- There must be at least two witnesses to the testator's signature, who also sign their names to the will.
Obviously, you're going to write some instructions in the body of the will, such as who your beneficiaries are, who gets the house and the cash, and who should look after the kids. But it really doesn't matter how carefully you draft these provisions. If your will does not meet the three legal requirements, it will not be a valid will.
What Does "In Writing" Actually Mean?
Basically, it means you cannot speak your final wishes on your deathbed and have this stand as your will. While some states do recognize oral wills, California does not. So, you're going to have to create a document that someone can actually read. This might be a professionally typewritten will, a handwritten will, or a hybrid of the two. For example, you might purchase a commercially printed will form, then fill in the blanks.
The reason for writing a will in California is to show "testamentary intent." This is industry jargon meaning that you must intend to create your final will when you write the document. Testamentary intent is never retroactive – no one can ever look at your document and say, "of course she intended these scratchings to be a will!" Your intention must be crystal clear on the face of the document. Writing "this is my last will and testament" at the top of the paper will usually do the trick.
Is a Handwritten Will Legal in California?
There's no problem with making a handwritten will in California. As long as you follow the three requirements for will making, your document will be just as valid as a typewritten will.
In fact, California has some special rules regarding handwritten wills, although they tend to throw up more problems than they resolve. In broad terms, you do not need to get your signature witnessed when you create an entirely handwritten will. Known as "holographic" wills, these documents are typically made in emergency situations such as the situation in which someone just suffered a serious accident. The state recognizes that there may not be time to get witnesses in these life-and-death situations, and therefore allows these wills to stand even without any witnesses.
While they definitely have a place and purpose, leaving an unwitnessed holographic will in California is fraught with peril. A disgruntled family member could easily challenge the will's validity, and without any witnesses to say what happened, who knows whether the testator intended the document to be her last will, or whether she was coerced into making it? So, while it's fine to handwrite your will, you should still make sure it complies with all the rules for will making.
What Are the Requirements for Witnesses?
It's important to make sure the people witnessing the will are completely impartial and do not stand to receive an inheritance. If you allowed a beneficiary to witness the will, it would leave the document wide open to challenge on the basis that the testator was coerced into leaving her possessions to that beneficiary, or that she was somehow the victim of fraud. California takes this rule seriously, so if you accidentally mess up and have a beneficiary witness your will, the whole document could be declared null and void. The witnesses must be adults, and they must be physically present during the signing process and watch the testator write his signature on the will.
Another important rule about witnesses is that they must understand what they are signing off on. So, you must tell them that this is not a school application or a pizza delivery order: it's your will. The reasoning here is that if anyone ever challenges the validity of your will, the witnesses will be called to testify. The probate court will ask them to describe what happened at the signing. Did they see the testator sign the document by her own hand? Was anyone else present at the time? There's a much greater chance that the witnesses will remember the events surrounding the signing if they knew at the time that they were witnessing the signing of a will.
What Is a Sample Will in California?
If you own a business or significant assets, or you want to arrange for your money to be distributed through a trust after your death, then you really should consult with an attorney. For everyone else, filling out a simple fill-in-the-blanks will form is an easy way to get your wishes recorded, so you know they will be followed once you're gone. You can find sample will forms online, or use the California statutory will form in the California Probate Code Section 6240.
Here's a short summary of the information you'll need to include:
- Testamentary intent: "This is my last will and testament" or "This is my final will."
- Your full name and address.
- The date.
- A statement that you revoke all previous wills.
- The naming of an executor. This person will be responsible for carrying out your instructions when you die, so choose someone you trust.
- The naming of a guardian for minor children. If you are a parent of any children under 18, you should specify who will look after them in your absence.
- A list of the specific gifts you want to make of items such as money, jewelry, real estate and so on.
- The name of the beneficiary or beneficiaries you want to receive the "residue" of your estate, which is everything left over after the specific gifts are given out and all the debts and taxes are paid. Most people leave the residue to their spouse and children.
- Your signature.
- The names, addresses and signatures of two independent witnesses who've watched you sign the will.
If you have questions or uncertainties, contact an attorney. This is one document you have to get right, because you won't be around to explain yourself if things go wrong. If your family cannot agree on the interpretation of the will, then they'll have to ask the probate court for a ruling. This could involve a lengthy legal battle, and no one will get their inheritance until the case is through. In the worst case, the court may decide that your will is invalid. This means you died intestate, and your property will be distributed in line with the state's intestacy rules and not your personal wishes.