How to make a will in California

A guide to California probate laws.

Elissa

Elissa Suh

Published June 12, 2020

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Who can write a will in California?

Anyone who is at least 18 years old and of “sound mind” can write a will in California. If you’re considered mentally incompetent by California law, which can include suffering from symptoms of delusion or hallucinations, you may not be able to make a valid will.

What are the requirements for witnessing a will in California?

Every will must be signed by two witnesses who are generally competent.

Can witnesses be beneficiaries of the will in California?

They can, but unless there are two disinterested witnesses, they may have to forfeit part or all their inheritance if they cannot prove that they didn’t have any undue influence on the testator.

What are the requirements for choosing an executor in California?

  • Age of executor: At least 18 years old (age of majority)
  • An executor named in a will does not need to be a resident of the United States
  • Must be generally competent and the court may choose to remove them if they have committed fraud

Can you create a holographic will in California?

Yes, California allows for a holographic will, but it must be dated and in the handwriting of the testator.

Is California a community property state?

Yes, California is a community property state.

In a community property state, each spouse has an equal share of property acquired during the marriage. Property acquired before the marriage is considered separate property.

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Laws of intestacy in California

In California, when there is no will, the court will determine who receives the intestate estate based on the laws of intestate succession.

In California, the surviving spouse receives the community property.

This is how much of the separate property a surviving spouse would receive in a few different circumstance:

If the decedent is survived by a spouse and:Surviving spouse's share
No children, parents, siblings, or nieces/nephewsEverything
No children, but parents or siblings of the decedent1/2 of the estate
A child or descendants of a deceased child1/2 of the estate
More than one child1/3 of the estate
One child and descendants of one or more deceased children1/3 of the estate
Descendants of two more deceased children1/3 of the estate

Otherwise, when there is no surviving spouse, then the intestate estate will pass along in the following order:

  • Children, or their children
  • Parents
  • Siblings, or their children (nephews/nieces)
  • Grandparents, or aunts and uncles
  • Cousins
  • Children of a predeceased’s spouse

For someone to receive the estate, there must not be anyone left in the category above them. If an inheritor is dead, then their share is distributed equally to their children.

Filing the will in California

After the testator dies, anyone can petition the court to commence proceedings, but any named executor in the testator’s will must file a petition within 30 days of knowledge of the decedent’s death.

Where to file: The county court where the testator died or owned property.

Estate administration without probate in California

An estate in California may not have to go through probate if the value of its combined real and personal property doesn’t exceed $166,250 and an heir has filed a small estates affidavit after 40 days from the testator’s death.

  • Items excluded when calculating the value of a small estate: joint property and accounts, POD accounts, vehicle, a vessel, certain homes, and payments from military service.

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About the author

Personal Finance Editor

Elissa Suh

Personal Finance Editor

Elissa is a personal finance editor at Policygenius in New York City. She writes about estate planning, mortgages, and occasionally health insurance. In the past she has written about film and music.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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