Writing a last will and testament in California

Living trust vs. will: Which one should you choose?

In California, many people choose to create a revocable living trust over a standard will. Both wills and trusts can perform certain similar functions — they allow you to choose how you want your assets distributed after you die. However, they achieve this in different ways. And in California, a trust can have more advantages.

A will, or a last will and testament, is a legal document that outlines who should receive your assets after you die. When you pass away, your estate goes through probate, and a court makes sure your assets are distributed according to your will. A trust, on the other hand, is a legal arrangement in which you transfer your assets to the trust. Then you name a trustee to manage them according to instructions you’ve provided. This means that the trust “owns” the assets you’ve transferred to it, and your trustee oversees them. When used for estate planning purposes, assets properly transferred to a trust don’t have to go through the probate process when you pass away.

Depending on your situation, it can be a good idea to set up a trust if you are a California resident, since the probate process can be lengthy and expensive. Learn more about how to set up a trust in California, and whether that's the right option for you.

California last will and testament requirements

Here are the requirements to make a valid will in California:

• You must be at least 18 years old.
• You must be of sound mind and memory. This means that you:
  • Understand what it means to make a will
  • Understand the nature and extent of your property and relationships
  • Don’t suffer from a mental health disorder that causes you to hallucinate, or make decisions in your will that you wouldn’t have otherwise made
• You must make your will freely and voluntarily. This means you can’t be under improper pressure to write your will by someone who has power over you, like a caretaker or family member. This is known as “undue influence.”
• Your will must be in writing, meaning it exists in a physical form. For example, a will “in writing” can be one you’ve written by hand, or one you’ve typed on a computer and printed. A digital copy, like a PDF of your will saved on your computer, isn’t considered valid under California law. Neither is an oral will.
• You must sign your will in the presence of at least two competent, disinterested witnesses, who also sign at the same time. A witness is “disinterested” when they don’t receive any financial benefit under your will. In other words, your witnesses should be people who aren’t receiving anything from your will.

In your will, you’re only able to name beneficiaries for your own property and, if you’re married, the half of the community property that belongs to you. You can find more information about community property below.

Notarizing your will in California

In California, you don’t need to have your will notarized to make it valid. In most states, you can use a notary to make your will self-proving. When a will is self-proving, the court can accept your will without needing to contact your witnesses to validate it. This can speed up the probate process. But in California, a will that’s properly signed and witnessed is already considered self-proving — so it’s not necessary to create an affidavit.

Holographic wills in California

Holographic wills, also called handwritten wills, are accepted in California. To be valid, a holographic will must:

• Be written entirely in your handwriting and signed by you
• Be written while you were of sound mind, and not under pressure from someone else
• Include the date you wrote it

As long as you follow these requirements, you don’t need witnesses to make your holographic will valid. However, it’s a good idea to have them anyway, especially if you think someone could challenge your will.

Estate attorneys generally don’t recommend making a holographic will. They can be difficult to prove legally valid in court, and they may contain errors or unclear wishes. Learn more about the pitfalls of holographic wills, and alternative options you can use instead.

Statutory wills in California

A statutory will is a fill-in-the-blank will template provided by California law. It’s easy and free to use in a pinch, but you must use it exactly as written — you can’t make any changes to the template at all. You make your statutory will valid by dating and signing, and having two disinterested witnesses sign as well — just like with any California will. You can download a printable copy of the statutory will template from the California State Bar website.

A statutory will is an extremely basic will form that can’t be tailored to your specific situation. They’re likely most useful for California residents who need a will immediately, or who have small estates and simple wishes. If you’re interested in an alternative, you can use FreeWill to create your free, customized California will in less than 20 minutes.

California will executor requirements

Your executor is the person responsible for managing your probate estate and carrying out the wishes described in your will. They will work with the probate court to pay your debts and distribute your assets to the beneficiaries of your will.

You can use your will to name the person you want to be your executor, but there are requirements for who can serve.

According to the California Probate Code, for a person to be eligible to be your executor, they must be:

• At least 18 years old
• Of sound mind, and capable of performing their duties as executor

In many states, people who have been convicted of a felony aren’t allowed to serve as executor. In California, though, there’s no such restriction.

In California, you’re also allowed to choose an executor that lives out-of-state. But for practical reasons, it makes the most sense to choose an executor that lives in California, and close to you. Your executor may have to spend weeks or even months managing the day-to-day tasks of your estate, and that process is easier if they live close by.

Revoking or changing your will in California

Revoking your will

In California, you can generally revoke, or nullify, your will at any time before you die. There are a few ways you can nullify your will:

• Intentionally destroy it. You can burn it, tear it, shred it, or throw it away.
• Ask someone to destroy it for you in your presence.
• Create a new one. Generally, a more recent will overrides any previous wills you’ve written. Be sure to include language stating explicitly that your new will revokes your prior will, and destroy all previous wills and codicils to avoid confusion.

If your marriage or domestic partnership ends after you write your will, any gift you assigned to your partner is automatically revoked unless your will specifically says otherwise. If you originally granted your spouse or domestic partner the power to act as your executor, guardian, or conservator, this authority will be revoked, as well.

Change your will with a codicil

If you’d like to make a few changes to your will, rather than revoking it in its entirety, you may consider writing a codicil. A codicil is a legal document that revises your existing will. To be legally effective, codicils must be executed and witnessed just like a will. In California, this means you must be of sound mind to make a codicil, and it must be signed by you and two disinterested witnesses.

Estate attorneys generally don’t recommend creating a codicil. It can be difficult to keep track of multiple documents, and codicils could make it more difficult to determine the will-maker’s wishes. In most cases, it’s often safer to create a new will.

Probate in California

Probate is the legal process of distributing a person’s estate after they die. During probate, a local court oversees the process to resolve any questions and disputes, make sure your debts are paid, and ensure that your property is passed on to the right people or organizations.

Here’s a high-level overview of what happens during the probate process:

1. Someone, usually your executor or a family member, files your will (if you had one). In California, they have 30 days from your date of death to file your will.
2. The court validates your will.
3. The court appoints a representative, or executor, to oversee your estate. If you named an executor in your will, the court will approach this person first to ask them if they want to serve.
4. Your executor identifies your assets and debts, and contacts your beneficiaries and creditors to notify them of your passing.
5. Your executor pays any of your debts, usually with money from your estate.
6. Your executor distributes assets to your beneficiaries, according to the wishes outlined in your will. If you didn’t have a will, your assets are distributed based on California’s intestate laws.

During probate, creditors can collect debts and potential heirs can contest any wills brought before the court. If you want to contest a will in California, you typically have 120 days from the date the probate is opened to do so.

Is California a community property state?

Yes, California is a community property state. Community property states consider almost all assets acquired by either spouse during their marriage to belong to both spouses equally. In community property states like California, the surviving spouse is entitled to at least half of any community property, even if the deceased spouse wrote something different in their will.

To better understand California community property laws, it helps to understand the difference between personal and community property.

Personal property

Personal property is property that belongs to only one spouse. This can include:

• Any assets or debts you acquire before your marriage
• Any inheritance you receive during your marriage
• Any assets specified as such in a prenuptial or postnuptial agreement

Personal property isn’t considered community property. This means you can use your will to leave it to anyone you want.

Community property

With few exceptions, any assets and debts that either you or your spouse acquire during your marriage are community property under California law. For example, this could be a vehicle your spouse purchased that has their name on the title, or the money you earned in your career during the years you were married. Each of you will have a one-half interest in each item of community property, and you will generally only be able to use your will to control who receives your one-half interest in that property — the other one-half interest remains the property of your spouse.

Many people choose to leave the majority of their estate to their spouse, regardless of whether they live in a community property state. If you want to leave a significant portion of your estate to someone other than your spouse for any reason, you should consider working with an estate attorney to discuss your situation and create an estate plan to meet your needs.

California intestate succession

If you die without a will in California, who inherits what you leave behind? Here’s the typical order of succession, according to the California Probate Code:

• If you’re married without children, parents, or siblings, your spouse will inherit your entire estate.
• If you’re not married and have children, your children will inherit your entire estate (usually in equal shares). Under California law, your “children” are defined as your blood or adopted descendants. Foster children or stepchildren aren’t legally considered your children and aren’t entitled to part of your estate.
• If you’re married without children, and with parents:
  • Your spouse inherits all community property and ½ of your personal property
  • Your parents inherit the remaining ½ of your personal property
• If you’re married and have only one child:
  • Your spouse inherits all community property and ½ of your personal property
  • Your child inherits your remaining ½ of personal property
• If you’re married and have two or more children:
  • Your spouse inherits all community property and ⅓ of your personal property
  • Your children inherit the remaining ⅔ of your personal property (divided equally among them)
• If you’re not married and have no children or immediate family, your estate will be divided among any living extended family, including grandparents, aunts, uncles, and cousins.
• If the court can’t find any living relatives by blood or marriage, the state of California will inherit your property as a last resort.

California’s laws about intestate succession can be complicated. You can learn more about them on the California State Legislature website.

California’s intestacy laws only apply to assets that go through probate. There are certain assets, called non-probate assets, that skip probate and are transferred directly to your named beneficiaries instead. Your 401(k) account and life insurance policy are two examples of non-probate assets. It’s important to name separate beneficiaries for these assets, and keep those designations updated. Learn more about designating beneficiaries for non-probate assets.

Estate and inheritance tax in California

There are two types of taxes that could affect your estate and your heirs after you pass away: estate tax and inheritance tax. Some people refer to these as “death taxes.”

California estate tax

In the US, your estate could potentially be subject to estate taxes at both the state level and the federal level. However, like most states, California doesn’t collect any estate taxes. (Only a few states do.)

For federal estate tax, the 2023 US federal estate tax exemption is $12.92 million for individuals and $25.84 million for married couples. This means your estate won’t owe any federal estate tax if your property is valued below this amount. If there’s no change in the current tax laws, the exemption threshold will drop to $5 million (adjusted for inflation) for individuals once the 2017 Tax Cuts and Jobs Act expires at the end of 2025. Take this into consideration when planning your estate.

California inheritance tax

Inheritance tax is a tax someone has to pay when they inherit property or assets from an estate. California doesn’t collect inheritance tax, and neither does the US federal government.

How to make a will in California

If you don’t have a last will and testament, now is a great time to make one — and the process might be easier than you think. Here are the steps to write a will:

1. Decide how you’re going to write your will.  Depending on your situation, you might choose to buy a will kit, use an online will template, or hire a lawyer. In California, you also have the option to create a living trust.
2. Choose beneficiaries for all your assets. If you want, you can also donate to a charity in your will.
3. Choose guardians for your minor children or pets, if you have them.
4. Choose your will executor. This person will work with the probate court to carry out the wishes in your will.
5. Consider authorizing independent administration. California is one of the few states that permits independent administration of estates. Independent administration is largely free of court supervision. This means that once an executor is approved and files an inventory of the estate’s assets with the court, they can administer the estate with minimal court involvement.
6. Sign and witness your will according to California law (that’s two disinterested witnesses).
7. Store your will somewhere safe.

If you use FreeWill’s free online will-making software to write your will, our questionnaire takes you through each step of the process. After you’ve finished, it provides you with a document reflecting your wishes, along with instructions for how to sign and witness it to make it valid in California. Everyone’s situation is unique, so if you have any questions or concerns about your will, consider meeting with an estate attorney.