Can I Write My Own Will and Have It Notarized, or Do I Need a Lawyer?

You can write your own will in California without a lawyer, but specific legal requirements must be met. Notarization isn’t necessary, but two witness signatures are required for typed wills to ensure validity.

By Douglas Wade, Attorney

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Table of Contents

1. Do you need a lawyer to draft a will in California?

2. What is the difference between a living trust and a will?

3. California rules for writing a will

4. California procedures for appointing an executor

5. The California process for revoking or amending a will

6. State of California Probate

7. Is California a state that recognizes communal property?

8. The intestacy process in California

9. The California inheritance and estate tax

10. The California Will Creation Process

Do you need a lawyer to draft a will in California?

If you have been thinking about creating a will, you may be wondering whether or not you will need the help of a lawyer. The answer to this question is no. You do not require a lawyer to draft a will, just as you can pretty much take any legal action on your own in this country (like representing yourself in a court of law). Now, there are some more complex legal matters where you may want the help of a lawyer (like defending yourself against a serious allegation). But there are some legal matters that are less complicated and which can technically be handled oneself. Wills are one of these things.

Be aware that a simple will is different than an estate plan or trust, which may require the expertise of a lawyer versed in tax law, will and trust law, and property transfers. It is all too common for someone to screw up their trust by fiddling with online software. Save yourself some trouble, and find a lawyer for these complex cases!

Now, if you are simply hoping to draft a basic will, you can do this on your own. Think about the following options.

1. California Statutory Will

You may have seen will services advertised online. These are fine to use, but you can always use the form that the state of California provides in the Probate Code. It is free to use and can simply be printed out and filled in.

With this type of will, it is important to know that it must be signed with two witnesses present. These witnesses must also sign it. This requirement goes for any will that is typed versus handwritten. A typed and unsigned will will not be accepted. Of course, there are exceptions, but an unwitnessed, unsigned will is going to make life difficult for the deceased’s heirs who will need to prove the will is legitimate. Save them the trouble — remember your two witnesses!

It is also important to know that California wills do not require notarization. Getting a notary does nothing to legitimize a will. All you require are those two witnesses to sign it. Again, do not waste your money on a notary, which will do nothing to validate the will.

2. Holographic (Handwritten) Will

Another choice is to write your own will by hand. Even in the absence of witnesses, a will written in the handwriting of the deceased qualifies as legitimate. So long as your handwriting is legible (really, make an effort to write clearly), this holographic will should have no trouble passing through probate. Even if it isn’t strictly essential, having two witnesses sign a holographic will is nevertheless a good idea.

According to California law, holographic wills are automatically considered legitimate just because the deceased’s handwriting appears on them.

So, in order to write a holographic will as a California resident, you should think about the following:

There is no need for eyewitnesses.
In a holographic will, anything goes—a piece of paper, an envelope, a napkin, even an IHOP receipt.
To make your Will, you can use almost anything. Clearly, you need to be as explicit as possible.
Therefore, take a sheet of paper and write “Will” across the top.
After that, declare this to be your final will and testament. The next step is to make a formal plan for the distribution of your estate.

Holographic wills have one major drawback, and that is that they aren’t always easy to understand. “My house passes to my kid and my wife may live there,” is one possible example of such a statement. While it could make perfect sense to the holographic will’s author, it creates issues from a legal standpoint. Is the home your son’s exclusive property? Is there a life estate for the wife? Does the son have to pay rent or does the wife? Does it matter how long she stays? Should she decide to go, what would be the consequences? This one line raises a number of real-world legal issues.

What is the difference between a living trust and a will?

Revocable living trusts are more popular than traditional wills among California residents. One commonality between wills and trusts is that they both provide you the power to direct the distribution of your possessions upon your death. Having said that, they do it in different fashions. And a trust can be more advantageous in California.

You can specify the beneficiaries of your estate in a legally binding document known as a will or last will and testament. After you die, the court oversees the distribution of your assets in accordance with your will during the probate process. In contrast, a trust is a formal document that allows you to transfer ownership of your assets to another entity.

The next step is to choose a trustee to oversee their administration in accordance with your wishes. Your assets are now “owned” by the trust, and your trustee is responsible for managing them. Properly transferring assets to a trust as part of an estate plan avoids the probate procedure upon your death.

Since probate may be a time-consuming and costly ordeal for California residents, it may be prudent to establish a trust instead, depending on your circumstances. To find out if a California trust is the best choice for you, read up on the process.

California rules for writing a will

To be legally binding in the Golden State, your will must meet these standards:

A minimum age of 18 is required.
You ought to be mentally and psychologically stable. Thus, it follows that you:
Recognize the significance of making a will.
Know what you own, how much you own, and your connections inside and out.
In your will, don’t do anything you wouldn’t normally do, and don’t have a mental illness that makes you hallucinate.
Your will must be freely and willingly made. Because of this, no one with authority over you, such as a family member or caretaker, may force you to sign a will against your will. The term for this is “undue influence.”
Your last will and testament must be physically present in the form of written text. A will can be “in writing” in a variety of ways, including handwritten notes or computer-generated documents. The state of California does not recognize electronic versions of wills, such as PDFs kept on personal computers, as legally binding documents. An oral will is also not legal.
A minimum of 2 competent, impartial witnesses must be present when you sign your will, and they must both sign simultaneously. A witness is considered “disinterested” if they stand to gain financially from your will. What this means is that the witnesses you choose should not be beneficiaries of your will.
You are limited to naming beneficiaries in your will to your personal property and, in the case of a married couple, your portion of the communal property. The following is a more detailed explanation of common property.

California procedures for appointing an executor

To carry out your desires as stated in your will and oversee the administration of your probate estate, you choose an executor. In collaboration with the probate court, they will settle your debts and divide your assets as per your will.

Specify in your will who you would like to serve as your executor; nonetheless, there are some qualifications need to fulfill this role.

Anyone wishing to serve as your executor must meet the following requirements set down by the California Probate Code:

Be at least eighteen years old
Mentally stable & competent to carry out their responsibilities as executor
The role of executor is not open to someone with a criminal record in several states. However, no such limitation exists in California.
California will also let you to name an executor whose residence is outside of the state. However, picking an executor who resides in California and is near to you makes the most sense from a practical standpoint. If your executor resides nearby, they will have an easier time handling the day-to-day operations of your estate, which might take weeks or months.

The California process for revoking or amending a will

You have the legal right to invalidate or revoke your will in the state of California up to the day you pass away. It is possible to invalidate your will in a few different ways:

Take it and destroy it. Toss it, burn it, rip it, or shred it.
Have someone else destroy it in front of you.

You could also create a brand-new will. If you have written more than one will, the most current one will take precedence. Avoid ambiguity by destroying any past wills and codicils and including wording saying that your new will revokes your former will.

Unless otherwise specified in your will, any bequests made to a domestic partner or spouse are null and void in the event that your marriage or domestic partnership ends after you have written your will. In addition, this will remove any authority you may have given your spouse or domestic partner to serve as your conservator, executor, or guardian.

You can also use se a codicil to revise your will. Instead of completely destroying your will, you might write a codicil to add or amend specific provisions. To update your current will, you can use a codicil, which is a legal document. An execution and witness are required for a codicil to be valid in the same way that a will is. To form a codicil in California, you need to be of sound mind and have two impartial witnesses sign it.

In most cases, estate lawyers would advise against drafting a codicil. Multiple papers can be a pain to manage, and adding codicils to a will could further obscure the testator’s intentions. It is usually wise to make a fresh will in these situations.

State of California Probate

After a person dies, their estate must go through the legal procedure known as probate. For the purposes of settling disputes, collecting outstanding debts, and distributing assets, a local court acts as administrator during the probate procedure.

The steps involved in the probate process are as follows:

If you have a will, someone (often a family member or executor) will file it. Your loved ones in California have thirty days after your death to submit a will.
Your will is upheld by the court.
To manage your estate, the court will choose an agent, or executor. The court will initially contact the individual you designated as executor in your will to inquire about their willingness to fulfill this role.
Your executor is responsible for gathering information about your assets and liabilities, as well as notifying your creditors and beneficiaries of your death.
Typically, the executor will use funds from your estate to settle any outstanding bills.
After you die, your executor is responsible for distributing your assets to the people you named in your will. Intestate laws of California govern the distribution of assets in the absence of a will.
Creditors can recover debts during probate, and prospective heirs can challenge wills in court. In California, the usual time limit for contesting a will is 120 days from the day probate is initiated.

Is California a state that recognizes communal property?

Yes, California does in fact have community property laws. In community property jurisdictions, the law holds that a married couple has equal ownership of any and all assets earned during the marriage. Community property laws, like as California, provide that the survivor of a marriage has an automatic right to half of the marital estate, regardless of what the decedent says in their will.

It is helpful to know the distinction between community property and personal property in order to fully understand California’s community property regulations.

1. Personal property

One spouse’s personal property is another’s marital property. Anything you own or owe that you obtained before to your marriage might be considered part of this.

Any bequests made to you while you are married

Prenuptial or postnuptial agreements that specifically name certain assets

The term “common property” does not apply to individual’s possessions. This gives you the freedom to bequeath it to anybody you choose in your will.

2. Community property

Under California law, your marital assets and any debts incurred during your marriage are considered communal property, with very few exceptions. Consider a car your husband bought with your name on the title or the salary you made while married as examples of marital assets. You and your spouse will each own half of the community property, and in most cases, your will will only be allowed to direct the distribution of your half of the property; your spouse will retain full ownership.

Regardless of whether one lives in a community property state or not, many individuals nevertheless opt to leave most of their fortune to their spouse. It is a good idea to see an estate attorney to go over your options and draw up a personalized estate plan if you wish to leave a large sum of money to someone other than your spouse.

The intestacy process in California

What happens to your possessions in the event that you pass away in California without a will? The following is the usual succession order as stated in the California Probate Code:

Your spouse will receive your whole fortune if you die without any parents, siblings, or children.

Your children will inherit your whole inheritance, often in equal parts, if you are not married and you have children. All of your descendants, whether biological or by adoption, are considered “children” under California law. Your stepchildren or foster children do not have the same legal rights as your biological children and will not inherit anything from your inheritance.

For married couples who have no children but live with their parents:

All of the joint assets and half of your individual assets will go to your spouse.
Half of your personal possessions will go to your parents.

For married couples with a single child:

All of the joint assets and half of your individual assets will go to your spouse.
Your one-fourth share of personal property will go to your child.

For married couples with many children:

All of the joint assets and one-third of your personal possessions will go to your spouse.
The other three quarters of your personal property will go to your children, who will get it in an equal distribution.
Any living grandparents, aunts, uncles, cousins, or other extended family members will receive a portion of your assets if you are single and do not have any children or direct relatives.

As a final option, the state of California will inherit your property if the court is unable to locate any living relatives by blood or marriage.

Intestate succession rules in California are notoriously convoluted. The website of the California State Legislature has further information about them.

All assets subject to California’s intestacy statutes must pass through the probate process. Your designated beneficiaries will get some assets directly rather than going through the probate process; these are known as non-probate assets. Some assets that do not go through probate include your 401(k) and life insurance coverage. Keep the beneficiary designations for these assets distinct and up-to-date.

The California inheritance and estate tax

After you die, your loved ones may be subject to either the estate tax or the inheritance tax, depending on which one applies. This is what some call “death taxes.”

1. Estate taxes in California

If you die in the United States, your wealth may be liable to federal and state inheritance taxes. But California isn’t one of the states that levies estate taxes. (Very few states really do.)

In 2023, the federal estate tax exemption for individuals is $12.92 million, and for married couples it is $25.84 million. If the value of your property is less than this threshold, then no federal estate tax will be due. Individuals will see a reduction in their exemption level to $5 million (inflation adjusted) after the Tax Cuts and Jobs Act of 2017 expires at the end of 2025, barring any changes to the existing tax systems. When making plans for your estate, keep this in mind.

2. Inheritance tax in California

People pay inheritance tax when they get property or funds from someone else’s estate. Neither the federal government nor the state of California collect inheritance tax.

The California Will Creation Process

Now is the perfect moment to create a last will and testament if you do not already have one; you may be surprised at how simple the procedure is. The process for drafting a will is as follows:

Determine the format you wish to use for your will. A will kit, an online will template, or legal representation are all options to consider when drafting a will. A living trust is another legal vehicle available to California residents.
Make a decision on who will receive your assets. A charitable bequest is another option to consider.
Assign legal guardians to any small children or pets you may have.
Decide who will be responsible for carrying out your wishes. The executor’s job is to help the probate court carry out your last desires.
Weigh the pros and cons of allowing autonomous management. Only a few states let people handle their own inheritance, and California is one of them. Generally speaking, courts do not micromanage independent administration. So, if an executor gets the green light and submits an inventory of assets to the court, they may handle the estate administration with little oversight from the court.
Two impartial witnesses are required under California law to witness the signing of a will.
Keep your will in a secure location.

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