California Last Will & Testament Information
By Ruth Sturdy
It is important to create a last will and testament according to California law to ensure that following the death of the testator, the assets are distributed according to the wishes of the deceased. This can include choosing the executor, the person who will be responsible for carrying out the will’s bequests.
A California Last Will & Testament includes the following requirements:
- The testator must be eighteen years old or older.
- They must also be of ‘sound mind’.
- The Will must be signed by the testator or by someone else in their name (provided it is done under the testator’s direction and in their presence), or a conservator under court order to make a will.
- The signing of the Will requires at least two witnesses in order to make it valid.
- Another requirement to make the Will valid is that it must be in written format.
- A Californian resident may bequeath their assets to any beneficiaries.
California does recognize the holographic will as a legal document. In this case no witnesses are required. The law in California does also accept a “fill-in-the-blanks” form. This is called a California Statutory Will, and is a template for those with simple estates.
The state of California does not allow nuncupative (oral) wills – they have to be in writing and signed by the will-writer or by another person at the will-writer’s request and in their presence. An exception to this is if the testator is incapacitated (mentally or physically) and a guardian or conservator has been allocated to manage their affairs. This guardian can create a will and sign it on behalf of the testator.
California’s laws give domestic partners (who are registered) the same rights that spouses have in the case of wills. When the testator dies, it is a matter of community of property so half of their property automatically gets granted to the surviving spouse. Unless stated specifically in the will, the spouse will also get half of the deceased’s share of marital property if there is one surviving child, and one-third if there is more than one child. If the will-writer is divorced after the will has been written, all conditions naming their surviving spouse are revoked and no longer applicable. If the spouse has been named as executor, they may not be appointed to this position any longer and any bequests to them are void.
If the deceased owes less than $150,000 in probate assets at the time of their death, it is considered a small estate and will most likely not require probate.
There are no inheritance or estate taxes in the state of California – inheritance tax was abolished here in 1982. Despite this, there are other taxes that need to be filed on behalf of the deceased, such as:
- Federal estate tax return
- Final individual federal and state income tax return
In California, heirs who are not US citizens will still be entitled to their portion of your estate if you die without a will. This portion is dependent on their relation to you, just like if they were citizens according to California’s inheritance law.
If you are purposefully murdered by someone who is related to you, California law will dictate what will happen to your estate. In this case, the individual will not get any portion of your estate, regardless of what the law dictates due to their relation to you.
California wills are not required to be notarized to be valid. You only need to have two disinterested witnesses to sign it and notarizing a will, in fact, does not make a difference to the probate process. Notarizing a will does not exempt you from needing a witnesses signature.
California law also accepts holographic wills if they are written by the testator in their own handwriting. No witnesses are required in this case. You can write a holographic will on any medium of your choosing – almost anything can be used. You should, however, make it as clear as possible in order for your wishes to be effectively followed in the event of your death. The one issue with holographic wills is that they can sometimes be difficult to interpret – especially if your language appears slightly ambiguous. Again, make sure your wording is clear and easy to understand for the person reading it.
Click here if you have any questions about creating a last will in California.