California is home to some of America’s most stunning sites, like Joshua Tree National Park, the Golden Gate Bridge, redwood forests, and the state’s many cliff-lined beaches. California is also America’s most populous state, boasting 39 million people. If California was an independent nation, it would have the world’s fifth-largest economy. When it comes to making a Will, California offers some unique benefits to people who want to avoid the probate process. Creating a Last Will and Testament is a crucial step in ensuring your assets and final wishes are carried out after you're gone. Making a DIY Will can be a viable option for those with straightforward estates living in California. In this blog post, we'll provide a step-by-step guide on how to make a DIY will in California, highlighting important considerations along the way.
What Are California’s Will Requirements?
Before you begin drafting your DIY Will, it's essential to familiarize yourself with California's specific legal requirements.
Signature and Witnesses: In California, a valid Will must be in writing, signed by the testator (the person making the Will), and witnessed by two competent individuals who are not beneficiaries of the Will. In other words, your witnesses can’t be people who will financially gain from your Will.
Testamentary Capacity: You must be of sound mind and memory to make a valid legal Will. This means you know that you are making a legal document that will distribute your property and that you know what Wills do. It means you don’t have a disease or disorder that causes you to make decisions that you would not normally make, or have a disease or disorder that causes hallucinations. You must also make your Will voluntarily (of your own volition) and freely (without someone else influencing you).
In Writing: California requires that your Will to be in writing, either written by hand or else typed and then printed. You’ll need an original printed copy because a digital copy alone won’t be valid under California law. The state doesn’t recognize oral wills.
California Wills Can Be Holographic
California recognizes the validity of handwritten Wills, which are called “holographic” Wills. However, to be valid, you have to follow California's laws by ensuring it is entirely in your own handwriting and bearing your signature and the date you wrote the Will. Although a holographic Will doesn’t need notarized nor does it need witnesses, if you go this route, these steps can help make sure a court accepts your Will.
How Small Estates Avoid California Probate
In California, the small estate probate limit refers to the threshold under which a simplified probate process, known as "small estate administration," may be used instead of a formal probate process. The small estate probate limit in California is determined by the total gross value of the decedent's estate. For the current year, refer to California probate code §§890, 13000. As of 2023, you can take advantage of the small estate limit if the total value of all real and personal property is not more than $184,500. To calculate the value of your property, you add the value of the real and personal property plus retirement or life insurance benefits that are paid to the estate. However, the value is only calculated as of the date of the decedent’s death.
What Property Passes by Will in California?
In California, property that is subject to probate (and thus can be passed through a Will) includes real estate, personal property, bank accounts, investment accounts, vehicles, art, antiques, jewelry, and intellectual property. Although life insurance proceeds are typically given directly to the named beneficiary, they will pass through Will if you don’t name a beneficiary in the documents.
Assets Not Subject to California Probate
Some assets are not subject to California probate (and therefore are not included in your Will.)
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The most common assets that are exempt from probate include real estate owned in joint tenancy and insurance policies with a named beneficiary.
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Trusts are generally exempt from probate, as long as the trust is fully funded. If you don’t fund the trust before you pass away, then your entire estate will go through probate.
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Retirement accounts can be exempt from probate if you have designated a beneficiary on the account. This includes IRAs, 401ks and some other investment accounts.
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Payable-on-Death accounts, also known as POD accounts, are exempt from probate because when you open a POD account, you name at least one beneficiary on the account.
What Assets Are Owned in Joint Tenancy in California?
Joint tenancy refers to property or assets that are held jointly by two or more individuals with the right of survivorship. Joint tenancy is a form of co-ownership where each owner has an equal and undivided interest in the property. When one owner passes away, their share automatically transfers to the surviving owner without the need for probate. Joint tenancy can include real estate, investment accounts, investment accounts, bank accounts, and vehicles. The general rule is that if two people own the asset - like a car or joint bank account - then you own it through joint tenancy.
How to Write a DIY Will in California
Step 1: Identify Your Assets and Beneficiaries
Start by compiling a list of your assets, including real estate, bank accounts, investments, personal property, and any other valuable possessions. Consider who you want to inherit these assets and designate beneficiaries accordingly. It's crucial to be clear and specific to avoid confusion or potential disputes.
Step 2: Appoint an Executor
Choose a trusted individual to serve as the executor of your will. This person will be responsible for administering your estate and ensuring your wishes are carried out. Discuss this role with the person you have in mind to confirm their willingness to accept the responsibility.
Step 3: Nominate a Guardian (if applicable)
If you have minor children, it's important to designate a guardian who will assume their care in the event of your passing. Ensure you have a detailed conversation with the potential guardian to confirm their willingness and ability to take on this role.
Step 4: Write the Will
Using clear and concise language, draft the main body of your Will. Include your personal details, such as your full name, address, and date of birth. Clearly state that this document is your Last Will and Testament, revoking any previous Wills or codicils. Be explicit in outlining how you want your assets to be distributed and name your chosen beneficiaries. If you have specific requests or conditions, such as charitable donations or conditional bequests, include them as well. The most efficient way to accomplish this task is with an online Will service like FastWill.
Step 5: Include Residual Clause and Alternate Beneficiaries
It's crucial to include a residual clause in your DIY Will to address any remaining assets not explicitly mentioned. This clause will ensure that any assets not specifically bequeathed are distributed according to your wishes. Additionally, consider naming alternate beneficiaries in case your primary beneficiaries predecease you.
Step 6: Sign and Witness the Will
To make your California Will legally valid, sign it in the presence of two competent witnesses who are not named as beneficiaries in your will. Ensure all parties sign in each other's presence, and that they understand they are witnessing the signing of a Will.
Step 7: Store and Share Your Will
Safely store your DIY Will in a secure location, such as a safe or with an attorney. Inform your executor about the location of your Will, and provide them with any necessary instructions to access it when the time comes.
Make a DIY Will in California with FastWill’s Help
Creating a DIY Will in California is a cost-effective way to ensure your final wishes are respected. Remember to review and update your Will periodically to reflect any changes in your circumstances. By taking these steps, you can have peace of mind knowing you've made provisions for your loved ones and your assets.
