California Wills and Last Testaments

Last updated: August 2026

A will directs who receives your property, names a guardian for your minor children, and appoints the person who will administer your estate. What it does not do is avoid probate — a will is the instrument that takes an estate through court, not around it. That distinction decides whether a will is the whole plan or one part of it, and for most California homeowners the answer is the second. Bay Legal, P.C. drafts wills as standalone documents and as part of trust-based estate plans.

Definition: A will is a signed, witnessed document directing how a person’s property is distributed after death and naming a guardian for any minor children.

What does a will actually do?

Four things, and only the fourth is optional:

• Directs distribution. Who inherits what, in your words rather than the state’s default order.
• Nominates a guardian. For minor children. A court is not strictly bound by the nomination but gives it substantial weight, and this is the single most common reason parents finally complete a plan.
• Appoints an executor. Called a personal representative in California. Without a nomination the court appoints someone under a statutory priority order.
• Catches what the trust missed. Where a plan is trust-based, the will is written as a pour-over will directing anything left outside the trust into it.

What a will does not do is keep the estate out of court. Assets passing under a will go through probate, with statutory fees calculated on the gross estate under Probate Code section 10810. A will can make probate cleaner and less contentious. It cannot avoid it.

How is a will validly executed in California?

Under Probate Code section 6110, a formal will must be in writing, signed by you or by another at your direction and in your presence, and witnessed by at least two people who are present at the same time, who understand the document is your will, and who sign during your lifetime. You must be at least 18 and of sound mind, and the document must be executed free of fraud, duress, or undue influence.

Two points beyond the checklist. A witness who is also a beneficiary raises a presumption that the gift to them was procured by duress, menace, fraud, or undue influence — which is why a disinterested witness is the safer practice even though an interested witness does not invalidate the will. And California recognises a limited harmless error route: a will not executed with the required formalities may still be admitted if the proponent establishes by clear and convincing evidence that the testator intended it to be their will. That is a repair mechanism argued after death, not a plan.

Does California recognise handwritten wills?

Yes, and this is one of the more useful things to know about California law. Under Probate Code section 6111, a holographic will is valid if the signature and the material provisions are in the testator’s own handwriting. No witnesses are required. It does not need to be dated, though an undated holographic will can create problems where its terms conflict with another will and the order cannot be established.

Valid is not the same as advisable. Holographic wills are disproportionately represented in probate litigation, because handwriting must be proved, ambiguous phrasing has no drafter to explain it, and capacity is easier to attack where no witnesses were present. They serve a real purpose as an emergency measure — someone facing surgery with no plan in place is better off with a holographic will than with nothing. As a permanent arrangement they are a false economy.

California also offers a fill-in-the-blank statutory will at Probate Code section 6240. It is free, valid, and adequate for a simple estate with a conventional family. It cannot be customised, it does not create a trust, and it does nothing about probate.

Will or trust — which do you need?

The deciding factor for most California families is whether they own real property. Because probate fees are calculated on gross value rather than equity, a single mortgaged home can generate substantial statutory fees, which is why trust-based plans dominate here even for families of modest means.

What happens if you die without a will?

California supplies one. Probate Code section 6400 and following sets out intestate succession — a fixed order of relatives, applied regardless of your relationships with them. An unmarried partner takes nothing. Stepchildren you raised generally take nothing. Estranged relatives may take a great deal. Community property and separate property are treated differently, so a surviving spouse’s share depends on how assets were characterised during the marriage.

A judge also decides who raises your minor children, working from the evidence in front of them rather than from your intentions. And the estate still goes through probate, with the same statutory fee schedule that would have applied with a will — the absence of a will adds delay and dispute without saving anything.

Can someone challenge your will?

Yes. The usual grounds are lack of testamentary capacity, undue influence, fraud, forgery, improper execution, or the existence of a later will. Contests are brought in the probate department of the Superior Court in the county where the estate is administered.

A no-contest clause is the standard deterrent — a provision disinheriting anyone who challenges the will. California enforces them narrowly. Under Probate Code section 21310 and following, a no-contest clause is enforceable only against specified types of contest, and a direct contest brought with probable cause is not penalised. The clause raises the stakes for a speculative challenge; it does not bar a well-founded one.

Two provisions also protect people the will overlooked. An omitted spouse who married the testator after the will was executed may take a statutory share under Probate Code section 21610, and an omitted child born or adopted after execution may do so under Probate Code section 21620. Both are avoidable by updating the will after a marriage or a birth, which is the practical lesson.

What are the risks of a do-it-yourself will?

Online forms produce documents. Whether the document works is a different question, and the failure only becomes visible when you are no longer available to explain what you meant. The recurring problems are ambiguity about who counts as a child in a blended family, no residuary clause so some assets pass by intestacy anyway, property described too vaguely to identify, no executor named, and execution formalities missed.

If you use a form despite this, five things reduce the risk: define your family explicitly, name an executor and an alternate, describe specific gifts precisely enough to identify both the person and the property, include a residuary clause covering everything not otherwise mentioned, and have the execution witnessed properly by two disinterested adults present at the same time. Then have a lawyer read it, which costs a fraction of drafting from scratch.

Who prepares wills at Bay Legal?

Sivendra Ganesh Maraj leads estate planning and probate. Rachael Berg handles trust and estate matters and probate litigation. A will is normally prepared with the rest of a plan — a living trust where the family owns real property, a durable power of attorney, and an advance health care directive — because the documents have to be consistent with one another and with your beneficiary designations.

One duty worth knowing in advance: whoever holds the original will after your death must deliver it to the clerk of the Superior Court within 30 days under Probate Code section 8200, and send a copy to the named executor. Tell whoever will hold it where it is.

Bay Legal, P.C. serves clients statewide from offices in Palo Alto and Los Angeles, including families across San Francisco and the wider Bay Area.

Frequently Asked Questions

What makes a will valid in California?

Under Probate Code section 6110 a formal will must be in writing, signed by you or at your direction in your presence, and witnessed by at least two people present at the same time who understand it is your will. You must be 18 or older and of sound mind, and the will must be free of fraud, duress, or undue influence.

Does a will avoid probate?

No. A will is the document that takes an estate through probate, not around it. Assets passing under a will are subject to court administration and to statutory fees calculated on the gross estate under Probate Code section 10810. Avoiding probate generally requires a funded living trust, beneficiary designations, or qualifying for a small estate procedure.

Is a handwritten will valid in California?

Yes. Probate Code section 6111 recognises a holographic will where the signature and material provisions are in the testator’s own handwriting, with no witnesses required. It is valid but risky: handwriting must be proved, ambiguity has no drafter to resolve it, and such wills are heavily over-represented in probate litigation.

Who should I name as executor?

Someone organised, trustworthy, and willing to serve. The role involves inventorying assets, paying debts and taxes, and distributing the estate under court supervision. Name at least one alternate. If you name nobody, the court appoints someone under a statutory priority order, which may not be who you would have chosen.

Can I disinherit a family member?

Generally yes, apart from a surviving spouse’s community property rights. Say so explicitly rather than staying silent, since omission can look like oversight and trigger the omitted spouse or omitted child provisions in Probate Code sections 21610 and 21620. A no-contest clause can deter a challenge but will not penalise a direct contest brought with probable cause.

How often should a will be updated?

After any significant change — marriage, divorce, birth or adoption, a death among your beneficiaries or your executor, a substantial change in assets, or a move to another state. Marriage or the birth of a child after execution can give that person a statutory share regardless of what the will says, so updating is the cleanest fix.

Related Questions

What is a pour-over will?

A will used alongside a living trust, directing that anything still owned outside the trust at death be transferred into it. It is a safety net rather than a substitute for funding the trust, because those assets pass through probate first.

Can a will name a guardian for my pets?

You can direct who receives them and leave funds for their care, though a gift to an animal is not enforceable directly. A pet trust is the more reliable route where the arrangement needs to be binding.

What is the residuary clause and why does it matter?

The provision covering everything not specifically given away. Without one, any asset the will does not mention passes by intestate succession — which is exactly what the will was written to avoid.

Do I need to file my will with a court while I am alive?

No. California does not require registration during your lifetime. After death, whoever holds the original must deliver it to the Superior Court clerk within 30 days under Probate Code section 8200.

Does a will cover my retirement accounts and life insurance?

No. Those pass by beneficiary designation directly to the person named, overriding the will entirely. Reviewing designations is part of making a plan work, and an outdated one naming a former spouse will be honoured.

Talk to a California will attorney

Whether a will is the whole plan or one document inside a trust-based plan depends mostly on what you own and who depends on you. To prepare or review a will with a Bay Legal attorney, call the office nearest you or email intake.

Bay Legal, P.C. — serving California statewide

Northern California office

667 Lytton Ave Ste 3, Palo Alto, CA 94301

(650) 668-8000

Southern California office

3211 Cahuenga Blvd W Ste 212, Los Angeles, CA 90068

(213) 668-8000

Intake: intake@baylegal.com

Fax: (650) 963-0041

Website: https://baylegal.com

This page is general information about California law and does not constitute legal advice or create an attorney-client relationship. For advice on your specific situation, contact a licensed California attorney.