California Wills, Trust, and Probate

You should contact a California probate lawyer to help you draft an estate plan that will protect your family and assets after your death. Mapping out a plan for your incapacity or your death is a stressful and poignant process no matter how many assets or family responsibilities you have; an attorney can put together the crucial documents of your estate plan, such as a healthcare surrogate designation, a will, a trust, a living will, an advanced care directive, or a durable power of attorney, and in so doing ease your concerns.

Remember that it is important to routinely update your probate documents, especially when significant events occur in your life (i.e., divorce, childbirth, marriage, retirement).

California Will

California requires that you word your will precisely in accordance with California law. If you do not correctly word your will, you run the risk that it will be considered invalid or that the court will not allocate your assets properly. In California, to execute a proper will, you must have:

1. Witnesses: You must have at least two disinterested (cannot be beneficiaries under the will) witnesses sign the will at the same time as the testator. The testator must be aware that he is signing his last will and testament. You may also execute a self-proving will in California by having both witnesses and the testator sign an affidavit stating that they are disinterested, and witnessed the signing of the will.
2. Notarization: Notarization of a will is not required in California
3. Holograph: California allows holographic (handwritten) wills. The terms of the will must be in the testator’s own handwriting, and he must sign the will. You do not have to include a date on the will, but it is strongly advised that you do so.

For the probate administration process, you may need to locate the witnesses to the will and request that they appear before the court in the testator’s county before the probate court will accept your will for probate. If the testator does not die for years after the will was signed, it may be difficult to track down the witnesses to the will. Seek counsel from a California attorney who specializes in probate law to ensure that you comply with California probate law requirements.

Changing a Will in California

You have two choices in California if you want to change your will:

1. Revoke prior wills and codicils, and the new will you write will control. You can revoke your will by completely destroying your first will.
2. Execute a codicil or amendment. A codicil or amendment is an addition to the will.

After you amend your will or revoke part of your will, you must make sure that the new document complies with California probate law (i.e., proper number of witnesses, correct word choice). If you intend to revoke or amend your will, be sure to consult with a California lawyer to make sure that you have properly complied with the law.

California Trust

Establishing a trust in California to distribute the assets in your estate allows you to save on estate taxes and avoid probate. The trust model also offers flexibility and confidentiality. There are several kinds of trusts: educational trusts, revocable inter vivos trusts (living wills), charitable trusts, and life insurance trusts. Trusts can be either revocable or irrevocable. Because trusts can be complex to set up, you should contact a California estate planning lawyer to help you set up the kind of trust that is right for you.

California Probate

After California residents die, their property passes according to the terms of their wills. In the event that a resident does not leave a will, or that certain property is not disposed of in the will, the property will pass by “intestate succession” which means that California law will determine who gets what property based on his relationship to deceased.

Any person in California interested in a will or in property passing by intestate succession may petition the court to decide who the beneficiaries are and how many/which assets each beneficiary receives.

California law provides that if your estate is worth less than $100,000 and 40 days have passed since the testator’s death, beneficiaries may demand that any debts owed to the deceased be paid through a Small Estate Affidavit. This enables beneficiaries to obtain the payments without having to endure probate process.

People that may hold interests by intestate succession in California may be (non-exclusive):

1. Spouses
2. Descendants – children, grandchildren
3. Parents
4. Brothers and Sisters
5. Grandparents
6. Cousins
7. Half Bloods
8. After-born heirs
9. Adopted Persons, persons born out of wedlock
10. If you have no surviving relatives that may inherit, your estate will go to the state of California.

Some property may not pass by probate:

• Contract assets - assets allocated to a specific person. Examples include life insurance policies, inter vivos trusts (living trusts), and
• Jointly held property - property held by both the deceased and another party that transfers upon the deceased’s death to the other party.
• Non-probate assets - the beneficiary of the property is stated in the will or trust.

Talk to a California attorney qualified to handle probate cases if you are worried that the provisions in your will may be challenged after your death.

California Statutes

California Statutes, Estates and Trusts

1. Probate Code: Wills Preliminary Provisions
   • California Probate Code, Division 1, Part 1 §§ 1-13.
2. Probate Code: Intestate Succession
   • California Probate Code, Part 6, Chp.1 §§ 240-241.
3. Probate Code: General Provisions
   • California Probate Code, Division 2, §§ 100-120.
4. Probate Code: Administration of Estates
   • California Probate Code, Division 7, Part 1, Chps. 1-4, §§ 7000-7666.
5. California Trust Code
   • California Trust Code, Division 9, Part 1, §§ 15000-15004.