A guide to California probate laws.
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.
Every will must be signed by two witnesses who are generally competent.
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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.
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
Yes, California allows for a holographic will, but it must be dated and in the handwriting of the testator.
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.
In California, when there is no will, the court will determine who receives the intestate estate based on the laws of intestate succession. (It’s a scary thought. That’s why we made it easy to create a will. Download the Policygenius app to get started.)
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/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|
Otherwise, when there is no surviving spouse, then the intestate estate will pass along in the following order:
Children, or their children
Siblings, or their children (nephews/nieces)
Grandparents, or aunts and uncles
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.
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.
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.
Live somewhere else? Learn how to make a will in your state.
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Elissa Suh is a personal finance editor at Policygenius in New York City. She has researched and written extensively about finance and insurance since 2019, with an emphasis in esate planning and mortgages. Her writing has been cited by MarketWatch, CNBC, and Betterment.
Elissa has a B.A. in Film Studies from Barnard College.
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