A last will and testament is a legal document that contains instructions about who gets your belongings when you die and lets you choose a guardian for a minor child. A will is the first step to creating a solid estate plan, which can also include a power of attorney and a living trust. You need a will in California to make sure your loved ones get the assets you want them to have — otherwise, a court may determine who gets what.
Live in another state? See our guide to making a will in your state.
Making a California will
You have the following options when creating a will:
Hire an attorney
Use an online will service
Make one on your own by filling out a form or writing one from scratch
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It’s legal to make a will without a lawyer in California, like through an online will making service, which is usually cheaper, too. It can cost a few hundred to thousands of collars to have an estate attorney prepare your will — however, it may be necessary for people with complicated estate or many assets.
California will form
You get a free will by using a fill-in-the-blank form. California will templates, even those provided by the state (a statutory will), are not tailored to your preferences and may not be sufficient if you have a more complicated plan for giving away your assets or if, for example, you want your will to create a testamentary trust upon your death.
Are handwritten wills legal?
California allows for handwritten wills and they don’t require any witnesses, but these wills (called holographic wills) must be dated and written in the handwriting of the testator. Writing a will by hand can leave room for interpretation and ambiguity, which could delay the probate process or result in someone contesting your will. You should only consider making a handwritten will as a last resort.
California last will and testament requirements
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 (since you lack testamentary capacity). (§ 6100)
Witnesses and signing
You must sign a will in California in front of two witnesses, who then sign the will after you. Witnesses can be beneficiaries of a will in California but, unless there are two disinterested witnesses, they may have to forfeit part or all their inheritance. (§ 6110-6113)
Learn more about witnessing a will.
Executor
You can name an estate executor in California will to handle your affairs after you die. Here are some of the restrictions the state places on executors (§ 8402) :
Age: At least 18 years old (age of majority)
Must be a resident of the United States
Must be generally competent
Can be removed if they’ve committed fraud
Do California wills have to be notarized?
You do not need to notarize a will in order for it to be valid in California. Notarization cannot take the place of proper witnessing outlined above.
After you die, at least one witness must appear in court to verify your will, but you can include a self-proving affidavit to prevent this from happening and greatly ease the probate process after you’ve passed away. The affidavit requires notarization. (§ 8220)
Learn how to get a self-proving affidavit.
Changing a will
If you want to make changes to your will, you can do so by adding a codicil, or writing a new will and destroying the old one. Keep in mind that the codicil must be signed and witnessed again in order to be valid. Wills in California can be changed up until the testator’s death.
Dying without a will in CA
When someone dies without a will, the court will determine who receives assets based on state laws of intestate succession, and those heirs may not be who you would’ve wanted. To prevent that from happening, you need to create an estate plan and include a will.
Learn more about what happens when you die without a will.
California inheritance law
In California, a community property state, a surviving spouse is entitled to receive the marital property (community property).
This is how much of the separate property a surviving spouse would receive in a few different circumstances (§ 6401):
If the decedent is survived by a spouse and: | Surviving spouse's share |
|---|---|
No children, parents, siblings, or nieces/nephews | Everything |
No children, but parents or siblings of the decedent | 1/2 of the estate |
A child or descendants of a deceased child | 1/2 of the estate |
More than one child | 1/3 of the estate |
One child and descendants of one or more deceased children | 1/3 of the estate |
Descendants of two more deceased children | 1/3 of the estate |
Intestate succession
Otherwise, when there is no surviving spouse, then the intestate estate will pass along to next of kin 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.
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