Will Requirements & Purpose

In California, the requirements of a will are quite simple.  Its purpose is, simply put, to identify the persons or entities that will receive your property when you pass away.

To create a valid will, you must (1) be at least 18 years old, (2) be of sound mind (be able to reason and make sound decisions), and (3) properly sign the document.

The creator of the will is called the “testator”.  The will can be signed by the testator, or another person if s/he is personally present with the testator and is instructed to sign the testator’s name.  It can also be signed by a conservator if a court order is first obtained.

The will must also be properly witnessed.  This means that two people must acknowledge that they saw the testator sign the will (or that the testator acknowledged that they have already signed), and that they are witnessing the will.  Additionally, they must sign in the presence of the testator, and they must state that they believe the testator is of sound mind.

A will can also be valid if all material terms are written in the testator’s own handwriting and signed by the testator.  This is known as a “holographic” will.  It can create problems when not done properly, but these types of wills are recognized by the California courts.

Your will must nominate an executor – someone who will have the responsibility to marshall your assets, pay all bills, and distribute your property as your will instructed.  If you did not nominate such a person, then the court will appoint someone.

As stated, the primary purpose of a will is to identify how your property will be distributed when you die.  But there are other uses as well.  Your will can nominate a person to be responsible for the care of your minor children.  Of course, this is only your nomination.  A formal guardianship proceeding would be required, and the person(s) you nominate would have to accept the responsibility.  But your nomination would carry great weight with the court when appointing such a person.

The assets of your estate that can be distributed by you may not include all property that you have an interest in.  For example, assets that are held in “joint tenancy” carry the “right of survivorship”.  This means that the other joint tenant, who survives you, will automatically receive your one-half interest – regardless of whether your will states otherwise. 

Such joint tenancy interests can include, for example, a house or bank accounts.  If your home is owned by you and your spouse as joint tenants, then you spouse automatically receives full title upon your passing.  If one of your bank accounts is owned jointly by you and your brother, then your brother automatically receives the entire account balance upon your death.

Likewise, a life insurance policy will pay the death benefit to the named beneficiary – regardless of whether your will states otherwise.  The same is true of IRAs or other accounts in which you have named a beneficiary.

Moreover, assets that are owned by your revocable (living) trust will be distributed according to the terms of that trust, and not by the terms of your will.

Remember:  If you own real property (separately) and have only a will, then your estate must go through the “probate process”.  Even though your will may name, for example, your son as your beneficiary, the legal title to the deed still has your name on it.  No one has the authority to transfer title to your son, except the court. 

Nearly every person would benefit by at least having a will prepared as a part of their estate plan.  This simple document will leave your last instructions and will serve to carry out your testamentary wishes.