California Wills

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California Wills

A California Will (also known as a California Last Will and Testament) is an important estate planning tool. It is usually in the form of a written legal document, formally signed and witnessed. A last Will and testament enables you to stipulate what happens to your property after death. It is a means of having your final say, but there’s more to Wills than just distributing your property.

Should I make a California Will?

Despite its efficacy, more than half of the population has not written a Will. The reasons behind not having a Will vary, but most commonly, people either believe they don’t need a Last Will or that they can avoid probate costs if they don’t have one. These beliefs are not necessarily true and largely depend on the individual’s personal and financial circumstances:

  • If you have minor children, you will definitely need a California Last Will and Testament, since it is the only way you can legally appoint a guardian.
  • If you have a large estate, then you may be better off using a revocable living trust to pass property. However, you will still need a “pour over” Will to catch property that hasn’t been transferred to the trust.
  • Even if the majority of your assets are not probate assets (such as jointly held property, IRAs and other beneficiary designations) you should still make a California Will to deal with any remaining assets such as personal property).

How do I make a California Will?

In order for a Last Will and Testament to be valid in California, it must be in writing. The state does not accept oral (also known as nuncupative) Wills. There are several ways to approach making a California Will. You can either have an attorney prepare your will or use a standard Will form. You could also use the statutory California Will Form, however, its use is quite limited. Whichever method you use, make sure you familiarize yourself with the formal requirements.

Does a California Will expire?

No. If you make a valid Last Will, that document remains in force until you revoke it and even then, it may remain intact if you don’t revoke it properly.

California Will Requirements

The requirements of making a legal California Last Will and Testament are contained in the Probate Code, Division 6, Part 1 Wills.

Formal Requirements

A California Last Will & Testament must be:

  • In writing;
  • Signed by the testator (person making the Will);
  • Witnessed by two persons. 6110

Witnessing Requirements

The witnesses must sign the California Will whilst the testator is still alive. Each witness must be present at the time and observe the testator’s signing of the Will. Each witness must also understand that the instrument they sign is the testator’s Last Will and Testament. However, they are not required to know the contents. 6110

What if the testator is unable to sign?

In California, a testator may direct another person to sign a Last Will and Testament on his/her behalf. Both witnesses must observe the testator’s acknowledgment of the signature and must understand they are witnessing a Will. 6110

Can a spouse witness my California Will?

No. The legislation clearly states that if a California Will is witnessed by an interested person, this creates a presumption that such witness procured their devise under the Will by duress, menace, fraud or undue influence. The witness would then lose their gift unless they can rebut that presumption in Court. 6112 You should always use at least two independent witnesses who are not receiving a gift under your Will.

Who may make a California Will?

Any person aged 18 or older and of sound mind is entitled to make a California Last Will and Testament. 6100(a) If a person is mentally incompetent, then a conservator may make the Will on that person’s behalf if authorized by a court order. 6100(b)

What property may be disposed of using California Wills?

Since California is a community property state, there are limitations on the extent to which an individual may dispose of his/her property. According to s6101, you may use your Will to dispose of:

  • All of your separate property;
  • ½ of your community property (see s100);
  • ½ of your quasi-community property (see s101).

How can I revoke my Will?

There are two ways to cancel (revoke) a California Will. Attorneys suggest both methods are used:

  • Making a subsequent Will which revokes the prior Will (the revocation should be done expressly and should refer to all former Wills);
  • Burning, tearing, cancelling, obliterating or destroying the old Will. 6120

What happens if I get divorced?

Your California Will is still valid. However, any provision benefiting your former spouse or appointing him/her as executor, trustee, guardian or conservator becomes void (unless your Will states they are to remain in place). These rules apply whether your marriage is dissolved or annulled. 6122 The same effect occurs in the case of domestic partners where the domestic partnership is terminated. 6122.1

Statutory California Will

The state of California provides a standardized Statutory Will for testators who wish to use it. The statutory Will form includes standard mandatory clauses. It is very inflexible. The form does not permit you to add or cross out any words. You may only fill in the blanks.

California Probate Process

Administration of the Estate

After the testator has died, any interested person may apply to the court for the estate to be administered. The petition may request:

  • That a personal representative be appointed; and/or
  • That the California Will be admitted to probate. 8000

Time Limits

The executor named in the California Last Will and Testament must petition the court for administration within 30 days of finding out about the death and that he/she has been named as executor. Failing this, he/she may be deemed to have waived the right to appointment as personal representative. 8001 The hearing is set for a date between 15 and 30 days after filing of the petition. 8003

Granting Probate

At the hearing, the court will hear and examine evidence from witnesses. Once the court is satisfied with the proof of the California Will and other necessary matters, it may grant an order admitting the Will to probate and appointing a personal representative. 8006

Estates worth less than $20,000

If the deceased’s personal property and real estate located in California do not exceed $20,000 then a petition may be filed asking the court to set aside the estate for the spouse and minor children. 6602 The petition may be filed by various persons including the executor named in the California Will, the surviving spouse, the guardian of a minor child, a child who was a minor at the time of the death or the personal representative (if one has been appointed). 6606

California Estate Tax

In California, estate and inheritance tax is administered by the State Controller’s Office, Bureau of Tax Administration. The state death tax credit has been phased out. A California Estate Tax return is no longer required to be filed for estates where the deceased died on or after January 1, 2005.

Holographic Wills in California

If a California Will does not comply with the formal witnessing requirements, then it may be valid as a Holographic Will if the material provisions and signature are in the testator’s handwriting. It also needs to include the date of execution. 6111 It is never advisable to rely on holographic wills as your Last Will and Testament. Wills that do not comply with the formal requirements are harder to probate and may even be held invalid.

Contesting a California Will

Grounds for contesting a California Last Will & Testament

California Wills may only be challenged on valid grounds (reasons). For example, you cannot object to the California Will simply because you feel you didn’t receive enough from the estate. Valid grounds for challenging a California Will include:

  • The testator was not mentally competent to make a Will at the time it was made. This may be because he/she could not:
    • understand the concept of making a Will;
    • understand and recollect the nature & situation of his/her property; or
    • remember or understand his/her relationship to living descendants, spouse, parents or other persons affected by the Last Will and Testament. 6100.5(1)
  • The testator suffered from a mental disorder with delusions or hallucinations which influenced his/her decision making. 6100.5(2)
  • The California Last Will and Testament was executed under duress, menace, fraud or undue influence. 6104

Procedure for Contesting

The applicable procedure for contesting a California Will is found in Article 3 of the Probate Code (commencing with section 8250). 8004 The person opposing must file an objection to probate of the Will. A summons is issued and served. The persons served must file a written pleading in response to the contest within 30 days. 6250 The person named as executor in the Will is not obliged to defend the contest until they have been appointed personal representative by the court. 6250 At trial, the witnesses are required to give evidence of execution of the California Last Will. 8253 The court may then make an appropriate order either admitting the Will to probate or rejecting it. 8254

Excluding Spouse or Children from a California Will

Like other states, the California probate code provides family protection to ensure family members receive minimum rights in the event their spouse or parent dies. So even if you omit a child or your spouse from your California Will, he/she is still entitled to basic entitlements. Also note that if your estate is worth $20,000 or less, the probate court may set aside the whole of your estate for your spouse and/or minor children, regardless of your Will. 6602

Excluding your Spouse

A disinherited spouse may still receive the following benefits regardless of your California Last Will and Testament:

  • All or part of your property which is exempt from enforcement of a money judgment; 6510
  • Use of the homestead for such term as the court considers proper. This can be for as long as your surviving spouse’s lifetime. 6521-4
  • A reasonable family allowance as is necessary for your spouse’s maintenance during the administration of the estate. 6540

Disinheriting a Child

Children also receive minimum entitlements in various circumstances. For example:

  • Your minor children may receive all or part of your exempt property and a right to use the homestead both with or independently of your spouse; 6510 & 6521
  • A reasonable family allowance during administration is given to:
    • Your minor children;
    • Your adult children who are physically or mentally incapacitated
  • This allowance may also be given to your other (non-incapacitated) adult children who were actually dependent on your for support at the time of your death. 6540

Never try to disinherit a child or spouse from your California Will without seeking guidance from a qualified attorney. A wills and estates lawyer can provide you with the right clauses to use and can advise any other steps you need to take.

Dying without a California Will

If you die without a California Last Will and Testament, your property is distributed in accordance with the state intestacy legislation. California makes a distinction between community, quasi-community and separate property. The first share is always distributed to the spouse. The rest goes to your other heirs.

What does my spouse receive?

  • All community property;
  • All quasi-community property;
  • As to separate property:
    • All your separate property if you did not leave any surviving issue, parent, brother, sister or issue of a deceased brother or sister;
    • 1/2 if you left:
      • only one child (or that child’s issue if he/she has predeceased);
      • no child but a parent or their issue if predeceased;
    • 1/3 if you left:
      • more than one child;
      • one child and issue from one or more deceased children;
      • issue of two or more deceased children.

What about my other heirs?

  • If you did not have a spouse, but rather a domestic partner, then the domestic partner will receive the same portion of your ‘separate’ property as if he/she were your spouse (see above).
  • Any balance not passing to the spouse or domestic partner is distributed in the following order (depending on the survivors):
    • Firstly, your children take equally (if a child has predeceased, that child’s children take their parent’s share equally);
    • To your parent or parents equally;
    • Your parent’s issue (or their issue by representation if your parent/s have predeceased you);
    • Your grandparents (or to their issue by representation if predeceased).

How does California Intestacy Law work?

The intestate succession legislation is quite complex. Here are some case studies of what happens to your property if you pass away without a California Will:

  • Intestate rules when husband dies without a California Will – share of wife & child: Carl passed away without a will. He had a child to his wife Julie. Carl had $100,000 in separate property and $100,000 in community property. Who gets what? Julie: $50,000 separate property + all community property Child: $50,000 separate property.
  • Intestacy distribution to husband & parents when wife dies with no Will & no children: Lois died leaving an estate of $100,000 in separate property + $100,000 in community property. She left behind a husband and parents but no children. She had no will. Who gets what? Husband: $50,000 separate property + all community property, Lois’s Parents: $50,000 separate property.
  • Husband died without a Will – intestate share of wife, children & stepchild: Josh died leaving an estate of $100,000 in separate property + $100,000 in community property. He had no will. He had two children to his wife Tina. Tina also has a child from a former partner. Who gets what? Tina: $33,333 of separate property + all community property, Josh & Tina’s 2 children: $33,333 each in separate property, Tina’s child from former partner: Nil.
  • Widow Grandmother died without a Will, distribution to surviving child and grandchildren based on California intestacy law: Emma died without a will. Her estate is worth $300,000. She had 3 children with her husband (who has predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 (share 1/3).

California Intestate Succession Law

The sections which determine what happens to your property if you die without a California Will are below (straight from the legislation):

“6400. Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in this part. 6401. (a) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100. (b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101. (c) As to separate property, the intestate share of the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, is as follows: (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister. (2) One-half of the intestate estate in the following cases: (A) Where the decedent leaves only one child or the issue of one deceased child. (B) Where the decedent leaves no issue but leaves a parent or parents or their issue or the issue of either of them. (3) One-third of the intestate estate in the following cases: (A) Where the decedent leaves more than one child. (B) Where the decedent leaves one child and the issue of one or more deceased children. (C) Where the decedent leaves issue of two or more deceased children. 6402. Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows: (a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240. (b) If there is no surviving issue, to the decedent’s parent or parents equally. (c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240. (d) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, to the grandparent or grandparents equally, or to the issue of those grandparents if there is no surviving grandparent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240. (e) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, but the decedent is survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240. (f) If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, but the decedent is survived by next of kin, to the next of kin in equal degree, but where there are two or more collateral kindred in equal degree who claim through different ancestors, those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote. (g) If there is no surviving next of kin of the decedent and no surviving issue of a predeceased spouse of the decedent, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent or parents equally, or to the issue of those parents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.”

California Will Forms

Before making a California Last Will and Testament, we recommend you obtain attorney advice on:

  • Preparing, signing and witnessing a Last Will and Testament
  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):

California Will Form: Married with adult children

California Will Form: Married with adult and/or minor children, includes a trust for minor children

California Will Form: Married with no children

California Will Form: Single with adult children

California Will Form: Single with adult and/or minor children, includes a trust for minor children

California Will Form: Single with no children

California Statutory Will

Steps for executing a California Statutory Will:

(a) The testator must complete the appropriate blanks and sign the will.

(b) Each witness must observe the testator’s signing and each witness must sign his or her name in the presence of the testator. 6221

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