How to Write Your Own Will in California

The following is a list of requirements in order to make sure a will is valid in California. Please note that these requirements are not for a “holographic” will, which is a specific type of will that is seldom used in a modern day estate plan as it is ripe for fraud and future complications. In order for a will to be valid in California, it must comply with the following requirements:

1. You must be at least 18 years old to draft your own will.

2. The will must be written (either handwritten or typed on a computer and printed).

3. You must be of sound mind (mentally competent). The Probate Code does not define what mentally competent means, but it does state that an individual is not mentally competent to make a will if they lack mental capacity to understand the nature of a will, if the individual suffers from mental disorders, or the individual is unable to remember or understand their relations to living relatives/family. For more detailed information on “sound mind”, please refer to Probate Code Section 6100.5

4. A will can dispose of property located anywhere in the world, not only within the United States or your respective state. 

5. A will cannot be formed under duress, menace, fraud, or undue influence. Meaning the drafter must not be pressured by a family member or other interested party when writing and signing the will.

6. The will must be signed by the drafter. The will may be signed on the drafter’s behalf if the drafter is unable to physically sign, and the drafter instructs the individual to sign on his or her behalf in the drafter’s presence. 

7. The will should be dated on the date of signature. 

8. The signature of a will should be witnessed by two non-interested parties. Meaning the two people witnessing the signing should be friends or people that know you, and they should watch you sign the will while all 3 of you are in the room. The witnesses should then sign and date the will themselves as “witnesses”. The witnesses may must be non-interested parties, meaning they cannot be your family members or any people that have or can potentially have an interest in your will or estate. Neighbors are usually good “witnesses” to use. 

9. A will does not need to be notarized. 

10. Include language as to how you want your assets to be distributed upon your passing. 

11. State who you want to be your Will’s Executor. An Executor is the person listed in a will who is responsible for carrying out the actions of the will and for properly handling a probate procedure and distributing property. Make sure this is an individual you trust, can handle finances responsibly, and lives within close vicinity. 

12. If you have minor children, state who is to be nominated Guardian should you pass before your children reach the age of maturity (18 in California). A Guardian is responsible for handling the financial and logistical needs of a minor child. 

13. State that a bond is waived for ay executor who serves under your will. A bond is a surety that is required by law (unless waived) when a probate proceeding is commences. This is a costly procedure that can easily be avoided with a simple waiver in a will. 

14. If there are parties that you wish to disinherit, specifically name them (such as a natural son who you wish to receive nothing). State in the will that the individual is your son, and you wish for them to receive nothing. Not having such provision gives rise to the assumption that you simply forgot to mention them in the will, which can lead to future problems. However an affirmative omission makes clear the drafter’s intent. 

(Validity of a will is governed by California Probate Section 6100 seq., 6110 seq., and 8220 seq.)

 

PLEASE NOTE: Simply drafting a will does NOT AVOID PROBATE. I highly recommend against drafting your own will without the assistance of a qualified attorney. Further, simply drafting a will is NOT a proper substitute for a modern day estate plan. This disclaimer is not merely to get me and other estate planning attorneys more money by having an individual pay us to draft a will – It is simply a strong advisement that proceeding with a self-drafted will and nothing else can lead to costly complications in the future. If I or other estate planning attorneys were only seeking financial gain, it would make more sense to advise clients to have no proper estate planning whatsoever as attorney’s fees in a probate proceeding FAR supersede the cost of drafting a proper estate plan that avoid probate. Please also remember that a typical probate takes roughly 1 year to complete, where a well drafted estate plan would take about 1 week for assets to pass from the decedent to the rightful heirs.

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