Legal Wills in California

by Anaid Heyd
Make a list of your assets before writing a legal will.

Make a list of your assets before writing a legal will.

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Legal wills are a way to ensure that your loved ones receive your assets after you die. Although many individuals postpone writing a will, dying without a will could result in your loved ones not receiving any possessions--or worse, individuals you do not wish to inherit your property may be entitled to it. Such scenarios may be prevented by creating a will and making sure it meets California legal requirements.

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Age and Capacity

A person in California must be at least 18 years old and of sound mind to create a will. "Sound mind" is defined as having the capacity to reason, make decisions, understand their implications and be able to recollect property, friends and family. Those deemed mentally incapacitated by a court may not create a will.

Signatures

California law does not consider a typewritten legal will to be valid unless it contains the signatures of the testator (also known as the will owner) and two witnesses. The conservator is an optional participant who preserves the legal will for safekeeping. If the testator chooses to have a conservator, he must also sign the document. Signatures help prove the intent and importance of the document.

Witnesses

The witnesses who sign the will must be present at the time the testator signs the document, and they must understand that the document is the testator's last will. The will does not lose its validity if a witness has an interest in the testator's property, as long as two other disinterested witnesses sign the document. Otherwise, a court will presume that the testator wrote the will under menace, fraud, duress or undue influence by the interested witness. An interested witness is a person who is named in the will as a beneficiary, aside from being a witness. A disinterested witness is only involved in the will to attest to its validity; he does not receive anything after the testator's death.

Holographic Wills

Holographic wills are handwritten versions of a legal will. California law insists on only accepting typewritten wills, to avoid ambiguity and tampering, but will accept a holographic will under certain conditions. This type of will may be valid if it is proven by a court that the document's handwriting is that of the testator's.The will need not be witnessed; however, it must include the date it was written. Failure to have a date together with a confusion in the document or questionable mental capacity, may result in its invalidation. Altogether, handwritten wills risk being contested in court as they often create ambiguity, leave out important language or have an unintended result. However, they are useful as a last resort.

Property

A will may provide instructions to distribute separate property, but may not give away any assets that are community property. Community property is money earned during a marriage from work and wages, plus any assets bought with with such money. Half of the community property belongs to a surviving spouse. However, the testator may give away his half of community property and one-half of quasi-community property that he owns. Community property is distinguished from joint property. Joint property--such as "joint tenancy" bank accounts or deeds--automatically pass to the surviving joint owner and cannot be given away in a will. Some types of property are unaffected by a legal will, including life insurance, retirement plans, assets that are automatically transferred after death and living trusts. Such property is bound by contractual agreements and already have beneficiaries listed in their paperwork. Beneficiaries named in these contracts will receive these assets even if a legal will states otherwise.

Beneficiaries

A will can grant property to an individual, corporation, county, city, unincorporated association, state, the United States or a foreign country. However, marriage annulment or divorce will result in a former spouse being stricken from the will, even if she is written in the will, unless the will expressly states that the spouse is to receive property even if there is a divorce or annulment of the marriage. Spouses who are removed from the will, as a result of a divorce or annulment, will be removed from any disposition of property or special appointment as executor, trustee, conservator, or guardian.

Will Revocation

There are several ways to revoke a will. Wills generally can be revoked through a successful court suit by any individual claiming entitlement to the will. A will also can be revoked if it is superseded by a subsequent will that expressly states that it invalidates the previous will. A will can be revoked if there are too many inconsistencies in the document. While the testator is alive, she may revoke her own legal will by burning, destroying, obliterating, tearing or canceling it with the intent of revoking the document--or by directing someone else to do one of these things.