A will is a document by which a person directs his or her estate to be distributed upon death. Black's Law Dictionary (8th ed. 2004). Your estate is basically everything you own.
For example, your will could direct your property to go to your: trust, wife, kids, parents nieces, nephews, aunts, uncles, grandmother, grandfather, cousins or your favorite charity.
2. Who can write a will? (Top)
A person 18 years of age or older who is of sound mind may make a will. California Probate Code §6100.
The requirement of possessing a sound mind does not require much proof. Usually, if the will writer has no mental problems, there is no problem.
3. What type of wills does California recognize? (Top)
California recognizes four types of wills:
(1) A witnessed will. California Probate Code §6110
(2) Holographic (handwritten) will. California Probate Code §6111
(3) A statutory fill-in the blank will. California Probate Code §66200-6243
(4) A will drafted in compliance with the Uniform International Wills Act. California Probate Code §6380-6390
4. What is the most common will and what are its requirements? (Top)
A witnessed will is the most common and requires the following:
(1) A written document
(2) Signed by the testator and
(3) At least two witnesses, who can also personally attest to the testator’s signature. California Probate Code §6110
5. What type of property can be included in a will? (Top)
Similar to a trust in this regard, a will can dispose of numerous assets: real and personal property, securities, bank accounts, mutual funds, decedent retirement accounts, businesses and pets.
6. What type of property is not included in a will? (Top)
(1) Joint Tenancy Property. California Civil Code §683
(2) Community Property with Right of Survivorship. California Civil Code §682.1
(3) Payable on death accounts (Bank accounts, life insurance, annuities and retirement plans). California Probate Code §5302
(4) Totten Trusts. California Probate Code §80-82
(5) Transfer on Death Securities. California Probate Code §5501-5512
7. What happens if I die without a will or trust? (Top)
If a person dies without creating a will or trust and has probate-eligible property in their estate, they die intestate (without a will) and the California laws of intestate succession will determine who will inherit the person’s estate. California Probate Code §6400-6402. These laws spell out an order of priority detailing who will inherit your estate.
In most cases, the surviving spouse, if one, will inherit the bulk of the estate. California Probate Code §6401-6402. Please click on the “Probate” link for more information about probate.
8. What are some common misconceptions about a will? (Top)
Fiction: An entire marital asset can be disposed of by one spouse’s will.
Fact: Each spouse or partner owns a ˝ community property interest in just about every marital asset subject to a few exceptions. California Family Code §§751, 760. If the decedent spouse tries to dispose of an entire marital asset in a will, the entire family home to Cousin Bob for example, the surviving spouse may assert his or her ˝ community property interest in the asset. California Probate Code §100.
Fiction: A valid California will is not subject to probate.
Fact: All wills must be probated except for certain estates that are under $100,000. California Probate Code §§13100-13116, 13150-13158, 13200-13210.
I can videotape my will or orally explain it to somebody instead of writing one.
The California Probate Code does not have a law that authorizes either such method.
9. What are some key difference between a will and a trust? (Top)
A will must be probated whereas a trust is exempt from probate.
A will only becomes effective upon the testator’s death, whereas a trust can become effective during the settlor’s lifetime and often does.
A will does not require the transfer of assets, whereas a trust requires that assets be transferred into the trust.
A will is more economical to produce than a trust because a will is typically 5-10 pages in length whereas a trust can range from 15 to 200 pages or more in length.
Yes and no, inevitably anybody who is reading this will pass away someday. Consequently, your probate-eligible assets will be distributed to somebody else since “you cannot take it with you.” Thus, you will be the subject of an estate plan eventually. The choice then is whether you want to direct the distribution of your assets to your beneficiaries via a will or have the California laws of intestate succession govern who will inherit your assets.
11. I have more wills questions how can they be answered? (Top)
Please call my office at (408) 866-8382 or email me at