Wills

A last will and testament is a legal document by which you (the testator) spell out your wishes as to how your property will be distributed when you die. It also names an executor to manage your estate, distribute your assets according to the terms of your will, and make sure your wishes are carried out.

Frequently Asked Questions About Wills

What is the difference between a will and a living trust? A will is a legal document that distributes your assets after death, but it must go through probate court. A living trust holds your assets during your lifetime and allows them to be distributed without probate, saving time and money. Wills become public record through probate, while trusts remain private.

Do I need a will if I have a living trust? Yes. Even with a living trust, you need a “pour-over” will to transfer any assets not properly funded into the trust and to nominate guardians for minor children. The will acts as a safety net for your estate plan.

How do I ensure my will is valid in California? A valid California will must be in writing, signed by you, and witnessed by two disinterested parties who sign in your presence. Alternatively, a holographic will must be entirely in your handwriting and signed by you, though this option is less recommended.

Can I write my own will in California? While California allows handwritten (holographic) wills, this approach carries significant risks. Self-written wills are more likely to be challenged, may not account for all assets, and often lack important provisions. An attorney-drafted will ensures proper execution and comprehensive coverage.

What should I do with my last will after I sign it? After you sign your last will, you should keep it in a safe, easily accessible place. Be sure that the person you have appointed as your executor knows exactly where you stored your last will. You do not have to file it with the court or place it in the public record.

Can I change or revoke my will after I make it? You can revoke a last will at any time before death by making a new last will that states that all prior last wills are no longer valid. To revoke a last will without making a new one, all you have to do is intentionally tear it up, deface it, burn it, or destroy it. One way to make changes to a last will, without revoking it entirely, is to make a codicil, which is an amendment to a last will. However, a codicil must be signed and witnessed just like a last will, so it may be easier to make an entirely new last will. Be sure not to make changes to your last will after it has been witnessed and signed.

Do I have to file my last will with a court or in public records? You do not have to file your last will with a court or other governmental authority after you sign it. After your death, however, your last will must be filed with the court. It will then become public.

Is my out-of-state last will valid if I move? If a last will was validly made while you were living in California, it is probably valid in your new state. However, if your last will was not “self-proved” (meaning that the will includes a sworn statement from the witnesses who watched you sign your will), it may not be accepted by certain courts. In California, a last will may be self-proved. If you move to another state that also allows self-proving wills, it would be unnecessary to locate witnesses to your California will before beginning the probate process. Because of the expense involved in finding your witnesses, it is probably best to rewrite your last will after moving to another state.

What happens if I die without a will in California? If you die intestate (without a will), your assets will be distributed according to California’s intestacy laws, not your personal wishes. Your estate will likely go through probate, and the court will appoint administrators and guardians, which may not be the people you would have chosen.

What happens to my debts after I die? The general rule is that all debts must be paid before any assets are distributed. Your outstanding credit card balances, for instance, are generally paid before any money or gifts are distributed to your heirs. An exception to this general rule is made for “secured debts,” that is, debts that allow the lender to take possession of a specific piece of property if the debt is not repaid. In general, people cannot inherit another person’s debts. If there is not enough cash in the estate to pay debts, all property of the estate will be sold to pay the debts, and no one will inherit anything.

Can I use my will to name a guardian to care for my young children and manage their property? Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult — called a “guardian of the person” — must step in. The guardian will be responsible for raising your children until they become legal adults. You and the child’s other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person. You can choose that same guardian to manage the property that you leave to your minor children, or you can name a different “guardian of the estate” to manage that property.

Must I leave something to my spouse and children? Can I disinherit someone? You can leave anyone out of your last will, subject to certain limitations. Many laws have been enacted to protect spouses and minor children. In community property states like California, your spouse automatically owns half of all the property and earnings acquired by either of you during your marriage. You can leave your half of the community property and your separate property to anyone you choose. Generally, it’s perfectly legal to disinherit a child. If you wish to disinherit one of your children or to give one child less than another, you should clearly state that intention in your last will.

Can someone challenge my will after I die? Very few wills are ever challenged in court. When they are, it’s usually by a close relative who feels somehow cheated out of a share of the deceased person’s property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw – i.e. the signature was forged, you weren’t of sound mind when you made the will, or you were unduly influenced by someone.