How to Make a Legal Will in California: Step-By-Step

A majority of adults in America don't have a will. A will is a legal document that spells out your wishes for your property after you die.

Jump ahead to these sections:

• Should You Use a Living Trust or a Last Will and Testament in California?
• What Types of Wills Can You Use in California?
• What Are the Requirements for a Will to Be Valid in California?
• How Much Does It Cost to Make a Will in California?
• Should You Use an Online Will or Estate Planning Attorney in California?
• Steps for Creating a Will in California Without a Lawyer
• Steps for Creating a Will in California With a Lawyer
• How to Make Your Will Legal in California
• How to Update an Existing Will or Write a Codicil in California
• How to Revoke a Will in California
• Frequently Asked Questions: Making a Will in California

The reasons that a person chooses not to make a will vary. Some people simply don’t like to think about death. Other people may simply not know how to make a will. 

If you are in the latter group then this article is for you. Especially, if you are one of the nearly 40 million people who live in California. Here, we will go over how to make a legal will in California. 

Should You Use a Living Trust or a Last Will and Testament in California?

There are many tools at your disposal for end-of-life planning. Those tools include a last will and testament as well as a living trust. These tools offer different benefits. Whether you should use one or the other is a personal choice that depends on your unique circumstances. The best way to know whether you should use a living trust or a last will and testament is to understand the differences between the two.

What is a last will and testament?

A last will and testament is a form of estate planning that allows you to say how you want your property distributed after you die. Most wills have to go through a process called probate. Probate is the court supervised process of administering an estate after a person dies. Administering an estate includes gathering and distributing property, paying debts and taxes, and ensuring proper notice is given to the appropriate parties. 

Depending on the complexities of the estate, probate can take months or years. When a will goes through probate it becomes part of public record. This means that anybody can view the contents of the will. 

What is a living trust?

A living trust is also a form of estate planning. A living trust allows you to control your assets while living, but also make a plan for when you pass. 

A living trust may offer benefits when compared with a will. A living trust does not have to go through probate, which means that the contents of the trust remain private. Additionally, avoiding probate means that your loved ones do not have to wait for the lengthy probate process to complete to have the property distributed. A living trust may also provide tax benefits when compared to a will. 

Keep in mind that you do not have to choose one or the other. A living trust and a last will and testament can be used in conjunction with each other. Oftentimes, a will is still necessary even if a person has a living trust. This is because a living trust can rarely dispose of all of a person’s property. 

If you have questions about which is best for your estate, then you should speak to an estate planning attorney. An estate planning attorney can answer your questions and help you choose the best tools for your end-of-life planning. 

What Types of Wills Can You Use in California?

Different states allow you to use different types of wills. In California, you can use the following types of wills. 

• Written Will: Any legal document that meets the statutory requirements of a will under California law. A written will is typically typewritten using either an online will service or an attorney.
• Handwritten Will: A handwritten will, also called a holographic will, is permitted in California as long as “the signature and the material provisions are in the handwriting of the testator.” The testator is the person making the will. 
• Statutory Will: A statutory will is a will created by statute. In California, you fill in the blanks on the statutory form to complete your will.
• Out-of-State Will: An out-of-state will can be used in California if any of the following three conditions are met: it complies with California law, it complies with the law in the place it was created, and it complies with the law at the time of death. 
• Living Will: California was the first state to enact a law defining living will. Unlike the other types of wills discussed above (and throughout this article) a living will does not address your property. Instead, a living will is used to make your wishes known about your medical treatment. 

What Are the Requirements for a Will to Be Valid in California?

A will must meet certain requirements to be valid in California. These requirements may differ slightly depending on the type of will. In California, the testator must be 18 years of age or older and of sound mind. A valid will must not be procured by duress, menace, fraud, or undue influence.

The will must be in writing. It must be signed by either of the following: 

• The testator
• In the testator’s name by someone in the testator’s presence and by the testator’s direction
• By a conservator pursuant to a court order to make a will

Except for a holographic will, the will must also be signed by two witnesses, each of whom are present at the same time and witness the signing of the will. Different wills have different requirements to ensure their validity. For example, the material terms of a holographic will must be in the handwriting of the testator. 

Additionally, if you are using the statutory will, you cannot add or cross out any words on the will form. If you do, the will may be invalid or the altered portions may be ignored by the court. If you have questions about the validity of a will, you should contact an estate planning attorney licensed in California. The attorney can answer your questions and draft the will for you. 

How Much Does It Cost to Make a Will in California?

The cost of a will can vary dramatically from person to person. It will depend on many factors, most importantly how you choose to draft your will. If you draft your will on your own then it will be free less the cost of writing supplies and time. If you draft your will using an online will maker, the cost of the program can vary from free to a couple hundred dollars. These options can be used for simple estate planning.

The cost to make a will increases if you hire an estate planning attorney. Keep in mind that the cost to make a will can vary dramatically among estate planning attorneys. The cost varies depending on the complexity of your estate and how the attorney charges for their services.

Some attorneys charge a flat rate for a simple will while others charge by the hour. If your estate is complex and the attorney is charging by the hour, you may find you are paying significantly more than someone who paid a flat rate for a simple will. Before hiring an attorney, it is your responsibility to understand how you will be charged. 

Should You Use an Online Will or Estate Planning Attorney in California?

Your choice between using an online will maker or an estate planning attorney in California is entirely up to your discretion. Generally, simple estates can use an online will maker and more complicated estates require an attorney. 

How do you know if your estate is simple or complex? You can consider the following factors: 

• Your age
• Your health
• The age and needs of your children (if any)
• The age and needs of your spouse (if any)
• The value of your estate
• Any business interests

If you are young and healthy, without a spouse or children, have assets under a million dollars, and have no business interests, then your estate is most likely simple.

Conversely, if any of the following are true, then you may benefit from the assistance of an estate planning attorney: 

• You are older than 55 years of age
• You have health issues
• You have minor children
• You have children and/or a spouse with special needs
• Your estate is worth millions of dollars
• You have business interests

Once you decide whether you are going to create a will on your own or with a lawyer, the next step is to create the will, which is discussed in following sections. 

Steps for Creating a Will in California Without a Lawyer

The steps for creating a will in California without a lawyer will differ depending on the type of will you are creating. Below the different steps for the different types of wills are provided.

The first and second step for any type of will is always the same. First, you need to give your will some thought. Spend some time thinking about your property and how you want it distributed. You also need to think about whether you want to name an executor (the person in charge of administering your estate) or a guardian for your minor children.

Once you have given your will some thought, you need to gather information. You need to know what property you own and how you own it. You also need to know the full names of anyone you are referring to in your will. Once you have completed these steps, you can begin creating your will.

Steps for creating a statutory will in California without a lawyer

1. Print or find an online version of the California statutory will
2. Read the statutory will
3. Fill in the blanks
4. Date and sign the will
5. Have two witnesses sign the will

Steps for creating a handwritten will in California without a lawyer

1. Draft the will: Once you have all of the necessary information, the next step is writing the will. You must handwrite the material provisions of the will. 
2. Date and sign the will: You will need to date and sign the will once you have it completed.
3. Have two witnesses sign the will: This is not necessary but can still be done if the will is a holographic (handwritten) will.

Steps for creating an online will in California without a lawyer

1. Select an online will maker: There are a lot of options when you are selecting an online will maker. Your considerations for a program should be based on your needs and budget.
2. Follow the directions of the online will maker: The online will maker should guide you through the drafting process.
3. Date and sign the will: You need to date and sign the will once you have it printed.
4. Have two witnesses sign the will: Finally, your will is not legal until it’s signed.

If you have any questions about creating a will, you should contact an estate planning lawyer. The lawyer can answer your questions and assist you with the will drafting process. 

Steps for Creating a Will in California With a Lawyer

When you hire a lawyer to draft your will, you still need to give your will some thought and gather information. Once you have done that, you should complete the following steps. 

Find a lawyer

If you are going to create a will with a lawyer, then you need to find a lawyer. Your lawyer must be licensed to practice law in California. Your lawyer should also have experience planning estates and drafting wills.

How you find a lawyer is entirely up to you. You may ask friends and family for referrals. You can also check the State Bar of California website. It can point you in the right direction when you need to find legal help.

Meet with your lawyer and follow their instructions

Once you have found a lawyer you should have an initial meeting with them where you go over your wants and concerns. Your lawyer should give you instructions on next steps. This may include a checklist of tasks that you need to complete. It may also include other estate planning options.

Your lawyer will give you legal advice and draft your will for you. Keep in mind that while your lawyer can provide advice, you are ultimately in charge of all of the decisions involving your will. 

Sign and witness the will

Once your will is finalized, you need to sign and witness the will. This step is often completed in the lawyer’s office.  

How to Make Your Will Legal in California

We have already discussed the requirements to legalize your will in California. As discussed above, your will must be in writing and signed and, unless it is a holographic will, it must also be signed by two witnesses. You can have it notarized, but it is not required. 

How to Update an Existing Will or Write a Codicil in California

As your life changes, so should your existing will. Notably, when any of the following changes occur in your life you should update your will:

• Financial circumstances
• Birth
• Death
• Marriage
• Divorce

One option for updating your will is revocation which will be discussed in the next section. A will can also be updated or amended by a codicil.

A codicil follows the same steps for a will as discussed above

When you are drafting a codicil, you utilize many of the same steps as you used when you were drafting your will. You should give the modifications the same thought and consideration you gave your original will. 

If you used a lawyer to draft your will then you most likely want a lawyer to draft your codicil. A codicil must be executed with the same formalities as a will. This means that it needs to be signed and witnessed just like a will. 

How to Revoke a Will in California

In California, it is also possible to revoke a will. You can revoke a will by the following methods. 

Revoke by subsequent will

In California, you can revoke a will or any part thereof by creating a new will. This is the easiest and most effective option.

Revoke by act

You can also revoke a will or any part thereof by your actions. When you revoke a will by action, you must have the intent and purpose of revoking the will. In California, you can revoke a will by doing any of the following: 

• Burning the will
• Tearing the will
• Canceling the will
• Obliterating the will
• Destroying the will

Revoke by divorce, annulment, or termination of domestic partnership

If you divorce, your marriage is annulled, or your domestic partnership is terminated, then that will most likely revoke any part of your will that applies to your former partner. 

In California, the divorce, annulment, or termination revokes all of the following: 

• Any disposition or appointment of property made by the will to the former spouse or domestic partner.
• Any provision of the will conferring a general or special power of appointment on the former spouse or domestic partner.
• Any provision of the will nominating the former spouse or domestic partner as executor, trustee, conservator, or guardian.

If you have questions about revoking a will, you should consult an estate planning attorney. The attorney can answer your questions and assist you with your revocation if necessary.

Frequently Asked Questions: Making a Will in California

You are encouraged to ask questions throughout the will making process. Here, we answer frequently asked questions about making a will in California.

Do you need to notarize a will in California?

No, you do not need to notarize a will in California. However, it’s recommended. 

Are holographic wills (handwritten wills) legal in California?

Yes, as discussed throughout this article, holographic wills are legal in California.

What happens to your will after you die in California?

What happens to your will after you die in California will depend on what you do with your will while you are alive. Once you have executed your will, you should put it in a safe place. You should also let the executor or a trusted family member know where they can locate your will after you die.

Once you die, the trusted family member or executor will locate the will and file it with the probate court. The court then gives the executor permission to take over responsibility for your estate. These responsibilities include taking charge of your property, paying any creditors and taxes, distributing property according to your will, and filing all necessary paperwork with the court. 

There Is No Time Like the Present

There is no time like the present when it comes to writing a will. Now that you know how wills work and understand your options, you can take the next steps towards drafting your will.