Last Updated on May 21, 2022 by Fair Punishment Team
There are many good reasons why you should write a will. Not least to ensure your estate and assets are divided the way you wish.
A will usually doesn’t only cover how your estate is shared amongst beneficiaries, but it can also put in place arrangements for your children, partner and even your pet.
Particularly when you are pregnant, or you have a family, you want to make sure that your loved ones are cared for in the event of your death.
What you may not know is that a will can also include your final wish regarding medical treatment in case you are too ill to communicate.
All these benefits are solid reasons to ensure you have a will in place. But how do you write a will when you live in California? And what should you look out for when writing your final wishes?
In this article, we explore the different types of wills in California, and how to write a will to ensure your loved ones are properly cared for.
Living Trust Versus Will
Before we get into the different types of wills, we should take a look at the options of a living trust compared to a will.
Both wills and trusts allow you to choose how you want your assets distributed to your beneficiaries after you die, but they are managed in a different way.
In California, most people choose to create a revocable living trust rather than a standard will, as a trust can have more advantages.
A last will and testament is a legal document outlining who should receive your estate and assets after your death.
Commonly, when you die, your estate goes through probate, and a court ensures that your assets are distributed as put down in your will.
On the other hand, a trust is a legal arrangement where you transfer your assets to the trust. You name a trustee to manage the trust according to your instructions.
This basically means that the trust owns your assets after you die, and the trustee oversees them.
What makes a trust more attractive to property owners in California is that when it’s used for estate planning purposes, the transferred assets held by the trust don’t have to go through the probate process after your death.
As the probate process can be length and expensive, it’s a good idea to avoid this through the trust arrangements.
Different Types Of Wills In California
If you are a resident in California, you can easily create your will. There are two different types of wills in the State of California which depend on how you want to put down your last wishes.
Both documents that ensure the right distribution of your property and guardianship of children are legally sufficient. However, each way of creating a will has slightly different requirements.
Statutory Wills
For a California statutory will, you simply fill in each blank as provided on the free form on the California State Bar’s website. Print it, date and sign.
With a California statutory will, you must sign the document in the presence of two witnesses who must be over the age of 18. In addition, the witnesses also must sign the will.
This is essential as a typed or computer-generated will in California is not admitted to probate unless it is signed by witnesses.
While there are exceptions to this rule, these would require your heirs to prove the will is valid, so it’s an unnecessary burden on them when you can just have two witnesses while signing the document.
One other important factor of California law is that California wills are never notarized. Notarized wills don’t support the legal claim.
Only the two witnesses and their signature, together with your signature, prove that this is your last wish and testament.
Handwritten/Holographic Wills
A holographic will is essentially a handwritten will. This option is available if you don’t have witnesses available or you cannot wait for witnesses to be available.
This type of will must be in your own handwriting and should be fully handwritten. Any typed or digital portion of the will could be declared invalid at a later stage.
Ensure that your handwriting is legible, and include your full name as well as address on each page of the document.
California law only accepts holographic wills when they are written by the descendant in the descendant’s own handwriting.
What You Need To Consider Before Writing A Holographic Will
A holographic will requires no witnesses, so you don’t need to have anyone other than yourself sign the document.
Generally, you can write a holographic will on anything you want, from a piece of paper or envelope to a napkin or a receipts, as long as your handwriting is clear and legible.
Ensure that you write “Will” clearly legible at the top, and underneath “The following is my last will”. Then state what you want to happen with your estate after your death.
Issues With Handwritten Wills
While holographic wills give you the freedom to put down your last wishes without the presence of witnesses, there can be some issues with handwritten wills.
Holographic wills can be difficult to interpret at times. For example, you can declare that your house should go to your daughter and your wife can live there. However, this raises a lot of questions legally.
A court would need to understand more details about the daughter’s ownership of the house, and what exactly the terms are for your wife living in it.
These issues are best avoided if you either choose a statutory will or get some legal advice.
How To Write A Will In California
Now that you know the basic differences between trusts and the different types of wills, you are ready to find out how exactly to write a will in the state of California.
Decide Which Will Is Right For You
First, you need to decide whether you want to use a trust or a will to put down your last wishes.
If you pick a will, you also need to make a decision if you want to write a statutory will, which needs to be witnessed, or a holographic will.
As there could be some legal issues with handwritten wills, the safest option would be to pick a statutory will signed by yourself and two witnesses.
List Your Property And Determine Estate Distribution
Once you know what type of will you want, you need to be sure on what you want to write in it.
Make a list of all the estate and assets you own. This should include any homes, land, boats, vehicle, jewelry, tools, household goods, art and anything else you possess.
Don’t forget to include any online bank accounts or investments you made during your lifetime.
Once you know exactly what you have, you should think of the beneficiaries and who should receive these assets.
Beneficiaries can be your married or domestic partner, friends, children and charities. Beneficiaries can receive a certain sum of money or a specific object, e.g. a property or a vehicle.
It’s also important to put down who may inherit any assets that you have forgotten about or you may purchase between the time of your will and your death.
As part of identifying your beneficiaries, you should include their full name, address, phone number and ideally also their date of birth in your will.
The more information, the better as this ensures that the property is transferred to the right person.
Name Guardians For Minors
When you have children under the age of 18, you want to make sure that they are looked after in the best possible way.
You should note in your will anyone who you want to raise your children after you die. You can name different guardians who look after your children and to manage your children’s assets.
Even if your children still have another living parent, you may want to name a guardian who will manage your child’s asset until they come of legal age.
Name An Executor
An executor is the person who oversees the distribution of your assets and they carry out your wishes.
The executor will work with the probate court to distribute your probate estate to your assigned beneficiaries and also pay your debts.
While you can name any person you want as your executor, according to the California Probate Code there are some basic requirements for who can serve. The person must:
- Be at least 18 years of age
- Be of sound mind, and they must be able to perform their duties as executor
In many US states, people who have been convicted for a crime or felony are not allowed to serve as executor. However, California doesn’t have this restriction.
The state of California also allows you to choose an executor who lives out of state. For practical reasons however, it makes sense to choose someone who lives close to you.
As an executor, they will likely have to spend weeks or months managing your assets and estate. This takes a lot of time and is much easier when they live nearby.
It’s also a good idea to name an alternate executor to make sure your final wishes are carried out the way you want.
Identify Other Assets And Assign Beneficiaries
There are some assets that are not subject to a will. These include:
- Life insurance policies
- Assets owned in joint tenancy with right of survivorship
- Community property with right of survivorship
- Pay on death or transfer on death accounts
- Retirement accounts
For these assets, you need to be sure that designated beneficiaries have been identities, as you cannot declare a beneficiary in the will for them.
Sign And Date Your Will
Once you have noted your last wishes, you must sign and date your will.
If you have chosen a statutory will, you also need to ask two witnesses to sign the document.
Store Your Will Safely
It’s easy for paper to get lost, so it’s important that you put your document in a safe place. This could be a fireproof safe or a safety deposit box in a bank.
It’s also a good idea to let at least one family member or a friend know where you have stored your will. After all, your final testament is of no use when no one knows where it is.
Revoking Your Will
In California, you can nullify or revoke your will at any time before your death. There are a few options as to how you can do this:
Intentionally Destroy Your Will
If your will doesn’t exist anymore, then it counts revoked. You can burn it, tear it or shred it if you want to revoke your will.
Ask Someone Else To Destroy It
Similar to yourself destroying the will, you can also ask someone else to destroy it in your presence.
Create A New Will
A more recent will generally overrated any previous wills you have written. Ensure that you include a note with the new will stating clearly that your new will revokes your prior will.
If you want to make absolutely sure that your new will is valid, it’s best to destroy the old will to avoid confusion.
If you granted your partner (domestic or by marriage) the power to act as guardian for your children, executor or conservator, this authority will be automatically revoked if your marriage or domestic partnerships ends after you write your will.
The same applies to any gift you assigned to your partner. This will be automatically revoked with the end of the partnership or marriage, unless you specify otherwise in your will.
Changing Your Will
If you don’t want to revoke your will but rather make a few changes to the document, you should consider writing a codicil.
A codicil is a legal document that includes all revisions to your existing will. For a codicil to be legally binding, it must be executed and witnessed, just like a will.
This means, a similar process to writing your will applies to codicils. You must be of sound mind to make a codicil, and the document needs to be signed and dated by you and two witnesses.
A codicil is a good option if you want to make minor changes to your will. However, multiple documents stating your last wishes can be difficult to gather together. This can make it confusing to determine the will maker’s wishes.
If you want to change more significant parts of your last testament, estate attorneys recommend creating a new will.
Do I Need A Lawyer To Make A Will?
In California, you don’t need a lawyer to write your will. You can simply use the California State Bar’s website as a basic form to create your will.
In some situations, it can be a good idea to consult a lawyer to ensure that your wishes are legally valid and executed.
Lawyers commonly have extensive experience with estate planning. They have seen a lot of wills and know what is important to avoid any pitfalls.
What Happens If I Don’t Have A Will?
If you die before you had a chance to write your will, California’s “intestacy” laws will dictate how your property is distributed.
In California, the intestacy law gives your property to your closest relatives, starting with your partner and children.
If you don’t have any children or a spouse, your property will go to your parents or grandchildren. This continues with increasingly distant relates, like grandparents, siblings,
cousins, aunts and uncles, and also your partner’s relatives.
In case the court cannot find any living relatives by blood or marriage, your property will be distributed to the state.
Conclusion
Next to the creation of a trust for your estate, writing a will in California can be a great way to make sure your wishes after your death are respected, and your property is distributed to your children, partner and other beneficiaries.
A will can also name any guardians who would care for your underage children in case of your death.
It doesn’t have to be difficult to write a will in the state of California. You can either use online forms and print them, or you can write your final wishes by hand.
Both are legally valid when you keep the above mentioned points in mind.
