Wills

Several states including California provide for Statutory Wills which are easily created without a lawyer, meets many people’s needs, & have lower standards for admission to probate with respect to witnesses / notarization.

A copy of the California Statutory Will is found at the bottom of this page or at the California state bar website.

Whether using a statutory will or not, there are important requirements for admitting a Will to probate concerning the need for witnesses (unless entirely handwritten) & the myth that a notary is necessary or sufficient.

Basic Requirements of Wills

Validity — General requirements of a Will:

  • Testator is over 18 years old and of “sound mind.”
  • Will is writing
  • and signed by the creator (Testator)
  • The testator’s signature witnessed by two competent witnesses (the Gold Standard but not necessarily required), who ideally are not be beneficiaries. Prob. Code § 6112.
  • A handwritten will signed by Testator is valid as a holographic will & does not require witnesses. Prob. Code § 6111.
  • A statutory will is a form created under statute, which is completed in handwriting by Testator & with two witnesses to the signature. Prob. Code §§ 6221, 6222, 6240.
  • Cal. Prob. Code §§ 6100, 6110.

Soundness of Mind means that when the Will was created the Testator:

  • understood the nature of the testamentary act;
  • understood & could recall the nature & situation of their property;
  • remembered & understood their relations with their living descendants, spouse, parents & beneficiaries; &
  • delusions, hallucinations, or other mental health disorders did not cause the Testator to devise their property as they did. Prob. Code § 6100.5.

Changing or Revoking

A Testator can revoke a will by destroying it with intention to revoke or by creating a new will that revokes it. Prob. Code § 6120.
A Testator can amend a will by codicil, executed with the same formalities as a will. Prob. Code §§ 88, 6110.

Administration of an Estate pursuant to a Will, especially in California, is more complicated than of a Trust, because it is supervised by the Probate Court. The court must admit Testator’s will to probate & appoint a personal representative who distributes the Estate assets to the beneficiaries per the terms of the Will. Prob. Code §§ 7000 – 7001. Costs include probate filing fees, statutory attorneys fees & commissions/fees for the personal representative, & tax advisor fees.

The Will Signature

There are different ways to meet the signature requirement of a Will. Three types of Wills are:

  • statutory
  • holographic
  • non-statutory, non-holographic.

California Probate Code section 6240 provides a form of Statutory Will. The testator must sign it. It cannot be signed on Testator’s behalf. Prob. Code §§ 6221, 6226(c). Unlike other wills, a statutory will need not be attested to by any subscribing witnesses. Prob. Code § 6111(a).

Holographic Wills are written entirely by Testator’s hand and signed by Testator. It cannot be signed by another on Testator’s behalf. Prob. Code § 6111.

Non-statutory, Non-holographic Wills must be signed by either:
• Testator; or
• Another, at the testator’s direction and in Testator’s name & presence; or
• A Conservator under a court’s order to make a will. Prob. Code § 6110(b).

Non-statutory, Non-holographic Wills are fraught with greater problems of authenticity & are more susceptible to challenge. To allay such problems, if the Will can be signed by the Testator at all, it should be, even if Testator’s signature is shaky or Testator can only make a mark.

Non-statutory, Non-holographic Wills generally must be attested to during Testator’s lifetime by at least two competent witnesses who may need to testify to the Probate Court that they were present at the same time & observed the Testator sign the will or acknowledge their signature & that the Testator signified their understanding that the signed instrument was their Will. Prob. Code § 6112.

Witnesses & Notaries

Although a Will in California need not be notarized, most wills in California are created to be self-proving by attaching a valid and sufficient attestation clause, and this does require a notary.

If a Will is not self-proving, the proponent of the Will must file proof of a subscribing witness to the Probate Court. Prob. Code § 8220.

If a witness to a Will is also a beneficiary, then they are an interested witness. This does not make the Will invalid in itself. Nonetheless, without at least two other disinterested witnesses, the disposition to the interested witness is presumed to be the result of duress, menace, fraud, or undue influence. Prob. Code § 6112.

Hence, best practices are to utilize a notary and an attestation clause so that the will may be self proving and to utilize independent (disinterested witnesses without family or personal connection and who are not beneficiaries). Witnesses should be competent — and may be need to be contacted many years later for probate if execution of the will execution is challenged.

Considering Statutory Wills

The following is the California Statutory Will form:

QUESTIONS AND ANSWERS ABOUT THIS CALIFORNIA STATUTORY WILL

The following information, in question and answer form, is not a part of the California Statutory Will.  It is designed to help you understand about Wills and to decide if this Will meets your needs.  This Will is in a simple form.  The complete text of each paragraph of this Will is printed at the end of the Will.

1. What happens if I die without a Will?  If you die without a Will, what you own (your “assets”) in your name alone will be divided among your spouse, domestic partner, children, or other relatives according to state law.  The court will appoint a relative to collect and distribute your assets.

2. What can a Will do for me?  In a Will you may designate who will receive your assets at your death.  You may designate someone (called an “executor”) to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify.  You may nominate someone (called a “guardian”) to raise your children who are under age 18.  You may designate someone (called a “custodian”) to manage assets for your children until they reach any age from 18 to 25.

3. Does a Will avoid probate?  No.  With or without a Will, assets in your name alone usually go through the court probate process.  The court’s first job is to determine if your Will is valid.

4. What is community property?  Can I give away my share in my Will? If you are married or in a domestic partnership and you or your spouse earned money during your marriage or domestic partnership from work and wages, that money (and the assets bought with it) is community property.  Your Will can only give away your one-half of community property.  Your Will cannot give away your spouse’s one-half of community property.

5. Does my Will give away all of my assets?  Do all assets go through probate? No.  Money in a joint tenancy bank account automatically belongs to the other named owner without probate.  If your spouse, domestic partner, or child is on the deed to your house as a joint tenant, the house automatically passes to him or her.  Life insurance and retirement plan benefits may pass directly to the named beneficiary.  A Will does not necessarily control how these types of “nonprobate” assets pass at your death.

6. Are there different kinds of Wills?  Yes.  There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills.  All are valid if done precisely as the law requires.  You should see a lawyer if you do not want to use this Statutory Will or if you do not understand this form.

7. Who may use this Will?  This Will is based on California law.  It is designed only for California residents.  You may use this form if you are single, married, a member of a domestic partnership, or divorced.  You must be age 18 or older and of sound mind.

8. Are there any reasons why I should NOT use this Statutory Will?  Yes.  This is a simple Will.  It is not designed to reduce death taxes or other taxes.  Talk to a lawyer to do tax planning, especially if (i) your assets will be worth more than $600,000 or the current amount excluded from estate tax under federal law at your death, (ii) you own business-related assets, (iii) you want to create a trust fund for your children’s education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse, domestic partner, or descendants, or (vi) you have valuable interests in pension or profit-sharing plans.  You should talk to a lawyer who knows about estate planning if this Will does not meet your needs.  This Will treats most adopted children like natural children.  You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.

9. May I add or cross out any words on this Will?  No.  If you do, the Will may be invalid or the court may ignore the crossed out or added words.  You may only fill in the blanks.  You may amend this Will by a separate document (called a codicil).  Talk to a lawyer if you want to do something with your assets which is not allowed in this form.

10. May I change my Will?  Yes.  A Will is not effective until you die.  You may make and sign a new Will.  You may change your Will at any time, but only by an amendment (called a codicil).  You can give away or sell your assets before your death.  Your Will only acts on what you own at death.

11. Where should I keep my Will?  After you and the witnesses sign the Will, keep your Will in your safe deposit box or other safe place.  You should tell trusted family members where your Will is kept.

12. When should I change my Will?  You should make and sign a new Will if you marry, divorce, or terminate your domestic partnership after you sign this Will.  Divorce, annulment, or termination of a domestic partnership automatically cancels all property stated to pass to a former spouse or domestic partner under this Will, and revokes the designation of a former spouse or domestic partner as executor, custodian, or guardian.  You should sign a new Will when you have more children, or if your spouse or a child dies, or a domestic partner dies or marries.  You may want to change your Will if there is a large change in the value of your assets.  You may also want to change your Will if you enter a domestic partnership or your domestic partnership has been terminated after you sign this Will.

13. What can I do if I do not understand something in this Will?  If there is anything in this Will you do not understand, ask a lawyer to explain it to you.

14. What is an executor?  An “executor” is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs.  It may be a person or it may be a qualified bank or trust company.

15. Should I require a bond?  You may require that an executor post a “bond.” A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor.  The cost of the bond is paid from the estate’s assets.

16. What is a guardian?  Do I need to designate one? If you have children under age 18, you should designate a guardian of their “persons” to raise them.

17. What is a custodian?  Do I need to designate one?  A “custodian” is a person you may designate to manage assets for someone (including a child) who is under the age of 25 and who receives assets under your Will.  The custodian manages the assets and pays as much as the custodian determines is proper for health, support, maintenance, and education.  The custodian delivers what is left to the person when the person reaches the age you choose (from 18 to 25).  No bond is required of a custodian.

18. Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian?  Probably yes.  Some people and banks and trust companies may not consent to serve or may not be qualified to act.

19. What happens if I make a gift in this Will to someone and that person dies before I do?  A person must survive you by 120 hours to take a gift under this Will.  If that person does not, then the gift fails and goes with the rest of your assets.  If the person who does not survive you is a relative of yours or your spouse, then certain assets may go to the relative’s descendants.

20. What is a trust?  There are many kinds of trusts, including trusts created by Wills (called “testamentary trusts”) and trusts created during your lifetime (called “revocable living trusts”).  Both kinds of trusts are long-term arrangements in which a manager (called a “trustee”) invests and manages assets for someone (called a “beneficiary”) on the terms you specify.  Trusts are too complicated to be used in this Statutory Will.  You should see a lawyer if you want to create a trust.

21. What is a domestic partner?  You have a domestic partner if you have met certain legal requirements and filed a form entitled “Declaration of Domestic Partnership” with the Secretary of State.  Notwithstanding Section 299.6 of the Family Code , if you have not filed a Declaration of Domestic Partnership with the Secretary of State, you do not meet the required definition and should not use the section of the Statutory Will form that refers to domestic partners even if you have registered your domestic partnership with another governmental entity.  If you are unsure if you have a domestic partner or if your domestic partnership meets the required definition, please contact the Secretary of State’s office.

INSTRUCTIONS

1. READ THE WILL.  Read the whole Will first.  If you do not understand something, ask a lawyer to explain it to you.

2. FILL IN THE BLANKS.  Fill in the blanks.  Follow the instructions in the form carefully.  Do not add any words to the Will (except for filling in blanks) or cross out any words.

3. DATE AND SIGN THE WILL AND HAVE TWO WITNESSES SIGN IT.  Date and sign the Will and have two witnesses sign it.  You and the witnesses should read and follow the Notice to Witnesses found at the end of this Will.

*You do not need to have this document notarized.  Notarization will not fulfill the witness requirement.

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Select Sections of California’s Probate Code regarding Wills

Probate Code § 6110

(a) Except as provided in this part, a will shall be in writing & satisfy the requirements of this section.

(b) The will shall be signed by one of the following:

(1) By the testator.

(2) In the testator’s name by some other person in the testator’s presence & by the testator’s direction.

(3) By a conservator pursuant to a court order to make a will under Section 2580 .

(c)(1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will & (B) understand that the instrument they sign is the testator’s will.

(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear & convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

Probate Code § 6111

(a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature & the material provisions are in the handwriting of the testator.

(b) If a holographic will does not contain a statement as to the date of its execution &:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

(c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.

Probate Code § 6112

(a) Any person generally competent to be a witness may act as a witness to a will.

(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.

(c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence.  This presumption is a presumption affecting the burden of proof.  This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.

(d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established.  Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence.

Probate Code § 6120

A will or any part thereof is revoked by any of the following:

(a) A subsequent will which revokes the prior will or part expressly or by inconsistency.

(b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator’s presence and by the testator’s direction.

Probate Code § 6221

A California statutory will shall be executed only as follows:

(a) The testator shall complete the appropriate blanks & shall sign the will.

(b) Each witness shall observe the testator’s signing & each witness shall sign his or her name in the presence of the testator.

Probate Code § 6226

(a) A California statutory will may be revoked & may be amended by codicil in the same manner as other wills.

(b) Any additions to or deletions from the California statutory will on the face of the California statutory will form, other than in accordance with the instructions, shall be given effect only where clear & convincing evidence shows that they would effectuate the clear intent of the testator.  In the absence of such a showing, the court either may determine that the addition or deletion is ineffective & shall be disregarded, or may determine that all or a portion of the California statutory will is invalid, whichever is more likely to be consistent with the intent of the testator.

(c) Notwithstanding Section 6110 , a document executed on a California statutory will form is valid as a will if all of the following requirements are shown to be satisfied by clear & convincing evidence:

(1) The form is signed by the testator.

(2) The court is satisfied that the testator knew and approved of the contents of the will & intended it to have testamentary effect.

(3) The testamentary intent of the maker as reflected in the document is clear.