A will is an important part of making sure that your property is distributed according to your wishes after you pass away. While the rules regarding these instruments are fairly straightforward, each state has certain nuances that you should be aware of.
This is important because failure to follow these rules could result in your will being declared invalid. For that reason, it’s always good practice to reach out to an attorney for assistance in drafting these documents.
Requirements for Making a Will
Now, in order for a will to be valid in California, the person making the will must be at least 18 years of age at the time. He or she is referred to as the “testator” and must also be of sound mind and memory.
Note that every will must be in writing. This means that voice recordings are not allowed, however, the document can be physically or electronically typed. Wills in California can also be handwritten.
Handwritten wills are referred to as “holographic” wills, and they must be dated. By contrast, typed wills do not need to be dated, but in order to avoid confusion it’s always a good idea to do so.
For your convenience, the state provides a basic fill-in-the-blanks “Statutory Will” that will guide you through the basic steps for creating this document. However, if your estate is complex, you will want to consult with a qualified attorney.
Witness Requirement
Keep in mind that California law requires that your will be witnessed by two witnesses. These individuals will confirm that your signature on the will is authentic. This is done by either watching you sign the will or by you acknowledging the signature in their presence.
Now, ideally, the witnesses should not inherit anything under the will. Those that inherit are referred to as beneficiaries, and while using them as witnesses will not necessarily invalidate the will, it can lead to problems if your will is later contested.
This is because there is a potential conflict of interest when someone stands to benefit from a will being declared valid. In fact, the state presumes that any such gift was made under duress – meaning the testator was pressured into making the bequest.
Note that, unlike a typed will, holographic wills do not need to be witnessed. Further, contrary to popular belief, wills in California do not need to be notarized. But, it’s important to remember that typed wills need witnesses to be effective. In other words, a notarized document without witness signatures is not legally valid as a will.
Basics of What to Include In Your Will
That said, you may be wondering what to include in your will. Generally speaking, because you have the freedom to direct where your property will go after you die, what you decide to put in your will is a very personal decision.
For instance, you may wish to include specific bequests that describe who should get a particular item. An example would be bequeathing a collectible to a friend of yours. You may also decide to leave a large portion of your estate to one person. In this case, the language in the will would be more general.
Note that gifts can also be given to organizations, such as nonprofits that promote a mission that you care about. Further, wills can do more than direct where your property goes. You can also name someone to be in charge of taking care of your minor children. In these situations, it’s common to include second or third choices in the event that your primary selection for guardian cannot serve.
Wills also typically name an executor. This is the person that will be responsible for carrying out the terms of your will. Bear in mind that you don’t need to name an executor. While there is a good reason to do so, the probate court will appoint someone if the will doesn’t specify who you want to serve.
What Happens if a Will is Not Valid?
Now, it’s important that you follow the rules regarding will execution. This is because failure to do so could result in the will being thrown out, and it will be as if the document didn’t exist.
In the event that this occurs, your property will instead be distributed according to the laws of California. These are referred to as the state “intestacy” laws and they specify that your property first goes to your spouse or children.
If you do not have a surviving spouse or children, your living parents or grandparents will be entitled to your assets. The process continues this way out to distant relatives, such as siblings, aunts/uncles and cousins. If no living relative can be found, your property will go to the state.
Because this may be contrary to your wishes, it’s always good practice to have an attorney involved in this important estate planning process.