Making a Valid Will in California

Creating a valid will in California ensures your property is distributed according to your wishes after you pass away. However, not all wills are legally enforceable. There are various requirements for creating a will to make it legal. Failing to meet these requirements could result in the probate court declaring it invalid.

Making a valid will will provide peace of mind and help avoid potential disputes between your beneficiaries. This article will discuss what happens if you die without a will, some requirements for making a will valid in California, and how to change it to ensure its validity.

What Does Dying Intestate Mean?

Dying intestate refers to dying without a legal will. When you die intestate, your assets will be distributed by the probate court based on the intestacy laws of the state of California. When this happens, the people you wish to receive your property may not be the ones who receive it.

For example, let’s say you are married and have children, but you have a close friend that you want to inherit some of your property upon your death. Without a will, your spouse and children would inherit your estate, and your friend wouldn’t receive anything.

Requirements for a Valid Will in California

A will, also known as a last will and testament, is a legal document outlining how you want your assets distributed upon death. CA Prob Code § 6100 – 6105 discusses the general provisions necessary to make a will valid in California. Let’s take a look at some of the requirements. 

The Will Must be in Writing

Oral wills are not valid in California. To be legally valid, the will must be in writing. The person making the will (the testator) can enlist the help of someone else to write the will, but it must be typed or hand-written.

A holographic will is a will that the testator hand writes, then signs and dates. A holographic will may be legally valid in California. They do not need to be notarized but must have the testator’s signature.

A holographic will can be helpful during an emergency but is more likely to be challenged in court. Working with an experienced estate planning attorney to create a will witnessed by two people is the best way to ensure your will is legally valid and less likely to be challenged.

The Will Must be Signed and Dated by the Testator

After the will is written, the testator must sign and date the will. They must be at least 18 years old and of sound mind when they sign the will.

Being of sound mind means that the testator has the capacity to think, reason, and understand the will. If the testator is not of sound mind, the will can be challenged during the probate process. Someone with a diminished mental capacity can sign a legally valid will, but they cannot be unable to reason and understand.

Witnesses Must Sign the Will

Per California probate law, at least two witnesses must sign a will. They must be present when the testator signs the will, and they must sign an affidavit acknowledging the testator’s mental capacity when they sign the will.

The ideal witnesses don’t have a financial stake in the will. This makes them “disinterested” and ensures their testimony is unbiased. Using a beneficiary as a witness makes them an “interested” witness, which can invalidate their gift due to a presumption of undue influence (CA Prob Code § 6112(b)). The exception is when there are three witnesses; one is interested, and the other two are disinterested.

The Will Must Identify Beneficiaries

Because the will instructs probate court on how to distribute your assets after you pass away, you must specifically identify what property you would like which people to receive. You can choose individuals or organizations as beneficiaries of your will.

Precise language is essential when declaring which assets should go to which beneficiary. If assets are not assigned to a beneficiary, they will be divided according to the intestacy laws. 

Clarity is Essential

Many wills have been challenged due to unclear language used in the document, which can lead to different interpretations. Working with an experienced estate planning attorney can ensure that the precise language is used to ensure the probate court fully understands your intentions regarding the distribution of your property.

Changing a Will in California

It can often be many years after a will is made before the testator passes away. As time goes by, circumstances may change, such as children being born or marriages and divorces. If you’ve left your property to your spouse and then got a divorce, you’ll want to update your will.

If you have minor changes, a codicil changes, adds, or removes provisions from a will. If there are substantial changes you need to make in your will, you can create an entirely new will.

Let Thompson Law Help You Draft a Legally Valid Will

Creating a valid will in California is straightforward, but careful attention to detail is required to ensure your wishes are honored. By understanding the legal requirements and regularly updating your will, you can provide clear instructions on how you’d like your assets distributed and ensure your loved ones are cared for. Seeking professional legal advice is always wise to ensure your will is valid and comprehensive.

At Thompson Law, our estate planning attorneys help protect and distribute your assets according to your wishes. We can help you draft a legally sound will and implement it with a living trust to assist your loved ones when determining your final affairs.

Contact us today for a consultation.