How to Write a Will and Assign a Legal Guardian in California

by David Carnes

    California wills are governed by the California Probate Code. California law imposes restrictions on the format of a valid will, and a probate court will discard it if these requirements are not met. Although you may nominate a guardian for your minor children, the probate court may refuse to appoint your nominee if it determines that the appointment would not be in the best interests of the child.

    Format

    Three types of wills are possible under California law -- a holographic will, a statutory will and a typewritten will. A holographic will is handwritten and must be prepared completely in your own handwriting. Since holographic wills do not have to be witnessed or notarized, they are frequently contested in probate court. A statutory will is a "fill in the blanks" template that can be downloaded from the website of the State Bar of California. Statutory wills are appropriate for small estates unless you intend to include complex provisions. Alternatively, you can prepare an individualized typewritten will. Although it is possible to prepare such a will yourself, it is best to hire a lawyer to ensure that it conforms to the California probate code.

    Content

    Your will should name an executor to manage your estate after you die. If you don't name an executor, a California Probate Court will name one for you. You must name all beneficiaries and specify what property they are to receive. You may only bequeath property that you own. California is a community property state, meaning that if you die before your spouse or registered domestic partner dies, half of the property obtained by either of you during the marriage belongs to her and you cannot dispose of it in your will. Other types of property, such as life insurance policies, are not subject to the terms of your will.

    Naming a Guardian

    California recognizes two types of guardianships -- guardianship of the person and guardianship of the estate. A guardian of the person takes physical custody of your children and provides for their day-to-day needs such as food and shelter, while a guardian of the estate administers any significant amount of property owned by your children -- such as money inherited under your will. If you use the California statutory will, you may name a guardian of the person and two alternates in Paragraph 6, and a guardian of the estate and two alternates in Paragraph 7. Appoint a guardian who is financially stable and young enough to raise your child, to maximize the likelihood that the court will appoint your nominee. If you don't appoint a guardian in your will, any interested party -- such as a relative or a social services agency -- may file a guardianship petition with the Superior Court sitting in the child's county of residence.

    Execution

    You must sign your will in the presence of two or more witnesses who are at least 18 years old and not heirs under your will. Each of your witnesses must sign the will in the presence of each other. Notarization is not required. Nevertheless, your witnesses should prepare a "self-proving affidavit" -- a statement that they witnessed the signing of your will, that you appeared to be mentally competent and that you appeared to understand its contents. They should then have the affidavit notarized. A self-proving affidavit will allow your witnesses to avoid testifying in probate court.

    About the Author

    David Carnes has been a full-time writer since 1998 and has published two full-length novels. He spends much of his time in various Asian countries and is fluent in Mandarin Chinese. He earned a Juris Doctorate from the University of Kentucky College of Law.