California requirements for a last will and testament can be confusing. Hiring a professional will ensure that your documents are legally binding.
A last will and testament is the classic example of a basic estate planning document: a legally enforceable set of instructions left behind, to be executed after death, pertaining to the distribution and bequeathment of property and the guardianship of minor dependents.
However, while wills are generally simple to make, and most professional estate planners offer affordable will writing services throughout the country, only about a third of Americans have created one. However, the number has seen a recent uptick (among young adults) due to the onset of the coronavirus pandemic.
Last will and testament requirements are generally the same throughout the country, with a few minor variations. Certain states have different requirements for recognizing a will and other provisions to prevent or discourage anything that might lead to the abuse or manipulation of coercing a will. Furthermore, states handle conflicts of interest differently and have different standards for authenticity. Let’s look at what the state of California requires when you get started with your will.
Testator Requirements in California
To become a testator – in other words, the author of your own will – you must be at least eighteen (18) years old and of sound mind.
You may not be coerced into creating a will or amending an existing one. Any potential evidence of coercion can render a will invalid, meaning that any assets in the estate would be divided as per intestate law.
A sound mind also generally means that you must be mentally competent to create a will. A will written while the testator was suffering from a diagnosed episode of psychosis may be challenging to get validated in court. Furthermore, any attempts to revise a will after the testator has been deemed incompetent – due to severe dementia, for example – may also be challenged successfully in court.
Beneficiary Requirements in California
The beneficiaries of a will – i.e., the people the will’s contents are bequeathed to – are not always human individuals. They may also be:
- And other organizations.
Most Wills Needs Two Witnesses
Modern-day wills are typed out and printed, and as such, they need definitive legal proof that the person who drafted the will is the testator who signed it. At the very least, that the testator agrees wholeheartedly with the contents of the will. This means that the testator must sign the will.
But that signature also requires witnesses. Faking a signature may be difficult, but rather than double-check with multiple copies of different documents to ensure that every testator’s signature is valid, it is simpler to necessitate that another adult is present when the testator signs the document.
These two witnesses should be uninvested, meaning neither stand to gain something from the will, and they aren’t beneficiaries. Suppose one of the witnesses is a beneficiary and cannot prove that they received their portion of the estate without undue influence. In that case, their claim to that portion may be revoked, and they may only receive what they would be entitled to under California’s intestate rules.
There are exceptions to this rule of witnesses. These include holographic wills. Holographic wills are handwritten wills. There are a few requirements for a handwritten will to be accepted in California.
The most significant and most apparent is that the will needs to be written by the testator by hand. If it is and proven to be their handwriting, the will does not require a witness. The will must also be dated to confirm that it is the testator’s last will. The testator must also be of sound mind when writing their holographic will.
Nuncupative Wills Do Not Count
Nuncupative or oral wills do not count as valid last wills in the state of California. They matter in a few states, but they are usually accepted only under reasonably specific circumstances, such as a soldier writing down his last wishes before dying as a combatant in another country.
Estates Under a Certain Value Can Be Expedited
All estates go through the probate process, during which a decedent’s last will is officially legitimized, and a personal representative is named to execute the estate.
However, in California, a certain magic number allows many estates to dodge most of the probate process and greatly expedite things. If your estate’s total value is $166,250 or less, you can opt to undergo a shorter probate process for small estates.
This counts as the total value of your probate estate, meaning life insurance pay-outs, retirement account remainders, and the contents of living trusts do not count towards this total value.
There Are Things A Will Can’t Do
While wills have the unique power to name a guardian for your child, they are ironically limited when it comes to the bequeathment of certain assets and property. More specifically, those with an already designated beneficiary. You cannot use a will to bequeath or manage:
- Life insurance payouts
- The remainder is on a retirement account
- Transfer-on-death/payable-on-death properties and accounts (Totten trusts)
- Property owned as a joint tenant community property with right of survivorship
If you’d like to have a look of your own, the information you need is readily available through the California Probate Code. Notable divisions include:
Division 6 pertains to the type of wills that can be executed in the state of California. This includes statutory wills, holographic wills, and attorney-prepared wills. Division 7 centers on the general provisions of the estate administration process, and the step-by-step rules of probate after death, from taking inventory to managing the estate, responding to creditor claims, and compensation for the personal representative of the estate (as well as attorney fees).
The process of creating a will is not very complicated, but some nuances and details might escape you during the DIY process.
Hiring a professional to give your will a look over or preparing a will with the assistance of an attorney can help ensure that your wishes are properly conveyed and legally binding. This also puts you in contact with someone who can help you revise your estate plan in the future, set up other estate planning documents (such as a living will and a power of attorney), and much more.