Under California law, a Will is a written document that expresses the wishes of the testator (the person who wrote and signed the Will) regarding the distribution of their assets at death. In order to be valid, a will must be properly signed and witnessed. Certain types of handwritten wills can also be valid. In the Will, the testator nominates a guardian for their minor children. The Will also appoints an executor to distribute the estate’s assets at the death of the testator. Generally speaking, a Will must be lodged with the court within 30 days of the testator’s death and goes through the probate process.
Who may make a Will?
- Any individual 18 or more years of age who is of sound mind
- A conservator may make a will for the conservative if the conservator has been so authorized by an appropriate court order
A California Statutory Will is available here. You should not use this statutory Will if (i) your assets will be worth more than $600,000 or the current amount excluded from estate tax under federal law at your death, (ii) you own business-related assets, (iii) you want to create a trust fund for your children’s education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse, domestic partner, or descendants, or (vi) you have valuable interests in pension or profit-sharing plans. You should talk to a lawyer who knows about estate planning if this statutory Will does not meet your needs. This statutory Will treats most adopted children like natural children. You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.
Frequently asked questions about Wills:
What happens if I die without a Will? If you die without a Will, what you own (your “assets”) in your name alone will be divided among your spouse, domestic partner, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
What can a Will do for me? In a Will you may designate who will receive your assets at your death. You may designate someone (called an “executor”) to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a “guardian”) to raise your children who are under age 18. You may designate someone (called a “custodian”) to manage assets for your children until they reach any age from 18 to 25.
Does a Will avoid probate? No. With or without a Will, assets in your name alone usually go through the court probate process. The court’s first job is to determine if your Will is valid.
What is community property? Can I give away my share in my Will? If you are married or in a domestic partnership and you or your spouse earned money during your marriage or domestic partnership from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse’s one-half of community property.
Does my Will give away all of my assets? Do all assets go through probate? No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse, domestic partner, or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these types of “non-probate” assets pass at your death.
Are there different kinds of Wills? Yes. There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires.
What is an executor? An “executor” is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs. It may be a person or it may be a qualified bank or trust company.
Should I require a bond? You may require that an executor post a “bond.” A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate’s assets.
What is a guardian? Do I need to designate one? If you have children under age 18, you should designate a guardian of their “persons” to raise them.
What is a custodian? Do I need to designate one? A “custodian” is a person you may designate to manage assets for someone (including a child) who is under the age of 25 and who receives assets under your Will. The custodian manages the assets and pays as much as the custodian determines is proper for health, support, maintenance, and education. The custodian delivers what is left to the person when the person reaches the age you choose (from 18 to 25). No bond is required of a custodian.
Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian? Probably yes. Some people and banks and trust companies may not consent to serve or may not be qualified to act.
What happens if I make a gift in my Will to someone and that person dies before I do? A person must survive you by 120 hours to take a gift under your Will. If that person does not, then the gift fails and goes with the rest of your assets. If the person who does not survive you is a relative of yours or your spouse, then certain assets may go to the relative’s descendants.