A will is one of the most important personal documents you can create, especially if you have children. It gives you control over how your property and assets will be distributed upon your death, and also control over who has the right to care for your minor children. You can opt to have an attorney draft a will for you in combination with a variety of other estate planning documents, but this is typically a sizable investment. If you prefer to go a more economical route, you can make a will in California for free. Just make sure you comply with all of the state’s requirements to do so.
Why You Need a Will
If you don’t have a will, you have no control over what happens to most of your assets when you die. Instead, most property will pass to your next of kin based on state law – your property is divided among your spouse or domestic partner, children and other relatives as stipulated by the state. Assets that you have designated beneficiaries for, such as insurance policies and retirements plans, pass to whomever you designated and aren’t impacted by a will.
With a will, you have control over who gets what property and when, who gets custody of any minor children and who manages assets for your children as they become adults. You can also designate the executor of your will who will manage your assets, pay any debts and taxes, and appear before the court on behalf of your estate. Without a will, the court appoints an executor for you, typically a relative.
Keep in mind that since California is a community property state, you can only transfer your half of the community property in your will. Everything you and your spouse earn and acquire during marriage is considered community property. In the absence of a will, half of everything automatically goes to your spouse, if your spouse is alive when you die. With a will, you can pass your half of everything or just a portion of your half, to your children or to other persons in any way you wish.
While planning for your death is not always an easy thing to do, the long-term benefits of creating a will are worthwhile. Having a will gives you peace of mind knowing that your minor children and your assets are taken care of when you pass. It allows you to take stock of your property, investments and accounts and know who will inherit what assets, which can be a huge relief for your family, saving them a lot of stress during a time of grief.
California Will Requirements
The good news is that drafting a simple will in California is easy to do. There is even a California statutory will form you can use as a template. The state has very few requirements for drafting a simple will. In order to make a legally recognizable will in the state, you must meet the basic requirements as set out in the California Probate Code:
- Be a resident of California.
- Be at least 18 years old.
- Be mentally competent.
- Have at least two witnesses who see you sign or acknowledge your will.
Being mentally competent means that you cannot have a mental illness that causes delusions or hallucinations. It also means that you must be able to understand that you are creating a will and what you are including in it. You should also make sure you aren’t being coerced by anyone into creating a will with provisions that you don’t agree to.
Is a Handwritten Will Legal in the State of California?
California is a state that permits holographic wills, which are wills that are handwritten by you and not based on a printed California will form. These wills don’t require witnesses, but the document must be dated and the material provisions must be in your own handwriting, be legible and contain your signature. It must also be obvious from looking at other factors that you intended for the document to be your will. That means you can take a piece of paper or write in a journal at any time and create a will, as long as you sign it and it’s obvious that it is intended to be your will. You cannot have your spouse or anyone else write a will for you and sign it. It must be in your own handwriting and contain no printed or typed elements.
Only written or printed wills are valid in California; the state does not recognize oral wills. It’s not enough that you tell someone what you want to happen to your assets when you die, you must put those wishes into writing.
How to Write a Simple Will in California
To get started on a simple will in California, you can find and download a free California will form to use. The easiest one to use is the California statutory will that is included in California’s Probate Code and available free to anyone. It has provisions for such things as your personal residence, car, jewelry, household items, assets, children’s guardian and choice of executor of your will. You can literally fill in the blanks, date and sign the California will form, along with two witnesses who must also sign it. That is sufficient to create a valid will in California.
Before you start the process of drafting a California statutory will, read through the form and make sure you understand everything being asked of you. If you do not, you may want to consult with an experienced attorney. Note that if you use the California statutory will form, you cannot add or delete any content – you must use the form exactly as it is. If you do make changes, the will can be considered invalid or the court may simply ignore the changes you made.
In many cases, the statutory form will be insufficient for your needs, and you will need to create a more complex document than a simple will. This could be the case if you have a larger estate, complicated family issues or want to create a living trust in California.
Once you create a will, be sure to keep it in a safe place and tell a trusted loved one where it is kept. You want to make sure someone knows where it is when you die so your wishes won’t be ignored.
Read More: How to Write a Will in California
How Often Should I Update My Will?
You can change your will at any time during your lifetime. Doing so requires you to make an amendment to your existing will, known as a codicil. Since a will is created based on your current life situation, it’s a good idea to update it whenever you experience a significant life change. For example, if you have a new child, acquire significant new property, get married or divorce a spouse. While you can make contingencies in a will for future occurrences, it’s a good idea to update it with specifics every few years. That way there is no question as to your actual intent.
Does a Will Help Me Avoid Probate?
Probate is the legal process of validating your will and distributing your assets. During probate, a judge determines if the will you created is valid. If you followed the legal requirements for creating a simple will in California, there should be no question of your will’s validity. During probate, your assets are collected and distributed, either according to your will or to the beneficiaries designated by state law if you don’t have a will. The probate process can be lengthy, contentious and expensive.
Whether or not you have a will, the distribution of your estate assets will typically go through the probate process. One way to avoid the probate process in California is to create a living trust.
Leslie Bloom earned a J.D. from U.C. Davis’ King Hall, with a focus on public interest law. She is a licensed attorney who has done advocacy work for children and women. She holds a B.S. in print journalism, and has more than 20 years of experience writing for a variety of print and online publications, including the Journal of Juvenile Law and Policy.