A will is the document most people picture when they think about estate planning, and in California it is both essential and — on its own — insufficient. A California will directs who receives your property, names the person who will administer your estate, and nominates a guardian for your minor children. What it does not do is keep your family out of probate. Every asset that passes under a will passes through the California probate court, with the statutory fee schedule and the public court file that come with it.
Understanding what a California will can and cannot accomplish is the starting point for deciding whether you need a will alone, a will paired with a revocable living trust, or something in between. The Holmes Law drafts California wills, pour-over wills, and the full estate planning package, and handles probate when a will has to be administered.
What a California Will Does
A properly drafted California will accomplishes several distinct things, and it is worth separating them because different families care about different ones.
- Directs distribution. It states who receives your property and in what shares, overriding California’s intestate succession rules.
- Names an executor. The person you nominate is the one the court will ordinarily appoint to administer the estate, and the will can waive the bond that would otherwise be required.
- Nominates a guardian for minor children. This is the single function no other document performs. A trust cannot nominate a guardian. Parents of young children need a will even if everything else they own is in a trust.
- Grants administrative powers. A well-drafted will gives the executor authority under the Independent Administration of Estates Act, reducing the number of court approvals required during probate.
- Handles the remainder. Where there is a trust, the will functions as a pour-over document, catching anything that was never retitled.
California Will Execution Requirements
California Probate Code section 6110 sets out the formalities for a witnessed will. The will must be:
- In writing.
- Signed by the testator, or by someone else in the testator’s name in the testator’s presence and at the testator’s direction, or by a conservator under a court order.
- Witnessed by at least two people, each of whom was present at the same time and witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will.
The witnesses must understand that the document they are signing is intended to be the testator’s will. California also provides a limited safety valve: under section 6110(c)(2), a document that was not properly witnessed 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 demanding standard and an expensive way to find out whether a will works. It is not a substitute for signing correctly.
An interested witness — someone who receives a gift under the will — does not invalidate the will, but it creates a presumption that the gift was procured by duress, menace, fraud, or undue influence. Rebutting that presumption is a fight nobody wants. Use disinterested witnesses.
Proving the Will After Death
California does not use the self-proving affidavit familiar in Uniform Probate Code states. Instead, California wills include an attestation clause signed by the witnesses under penalty of perjury, and when the will is offered for probate the court ordinarily requires a Proof of Subscribing Witness. A well-drafted attestation clause and accurate witness contact information make this routine. A homemade will with witnesses nobody can locate makes it a problem.
Holographic Wills in California
California is one of the states that recognizes handwritten wills. Under Probate Code section 6111, a holographic will is valid — with no witnesses at all — if the signature and the material provisions are in the testator’s own handwriting. The document need not be dated, though an undated holographic will creates problems if there is another will or if capacity is questioned.
Holographic wills are valid and they are consistently the source of litigation. Handwriting must be proved. Ambiguous phrasing has to be construed by a judge. A store-bought fill-in-the-blank form completed by hand raises the question of whether the printed words or the handwritten words supply the material provisions. And holographic wills almost never contain the administrative provisions — bond waiver, independent administration authority, contingent beneficiaries, trust terms for minors — that make an estate manageable. A holographic will is far better than nothing in an emergency and far worse than a properly drafted will in every other circumstance.
The California Statutory Will
Probate Code section 6240 sets out a fill-in-the-blank California Statutory Will. It is genuinely valid, it is free, and for a very simple situation — a modest estate, an outright gift to a spouse or children, no real estate complications — it is better than dying intestate.
Its limits are structural. The statutory will offers a fixed menu of choices. It cannot create a trust for a minor beyond its narrow built-in provisions, cannot address a blended family, cannot protect a beneficiary with a disability, cannot handle business interests or out-of-state property, and cannot be customized. It also does nothing about probate. It is a floor, not a plan.
The Separate Writing for Personal Property
California allows something many states do not. Under Probate Code section 6132, a will may refer to a separate written list disposing of tangible personal property, and that list can be created or changed later without re-executing the will. The limits are specific: no single item may exceed $5,000 in value, and the total value of all property on the list may not exceed $25,000. The writing must be signed and must describe the items and recipients with reasonable certainty.
This is a practical tool for the jewelry, tools, furniture, and family items that generate more sibling conflict than the house does. Write the list, keep it with the will, and update it whenever you change your mind — no attorney visit required.
What Happens Without a Will
If you die without a valid will, California’s intestate succession statutes decide who inherits, and because California is a community property state the answer splits in two.
Community property — generally everything acquired during the marriage other than by gift or inheritance — passes entirely to the surviving spouse. Separate property is divided: the surviving spouse takes all of it if there are no children, parents, siblings, or issue of siblings; one-half if there is one child or the issue of one deceased child, or if there are no children but a surviving parent or sibling; and one-third if there is more than one child, or one child and the issue of a deceased child. The balance passes to the children or other relatives.
Intestacy also means the court, not you, effectively selects the administrator, a bond is more likely to be required, and no guardian has been nominated for minor children. Unmarried partners, stepchildren who were never adopted, close friends, and charities receive nothing.
The Probate Problem
This is where California differs from most of the country. Property passing under a will goes through probate, and California sets attorney and personal representative compensation by statute under Probate Code sections 10800 and 10810 — 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, and 0.5% of the next $15,000,000 — with that schedule paid twice, once to the personal representative and once to the attorney.
Two details make it worse than it first appears. The fee is computed on the gross value of the estate accounted for, “without reference to encumbrances,” so a heavily mortgaged home is counted at its full value. And the court may award additional extraordinary compensation for work such as selling real property or handling litigation.
Probate is also public. Anyone can read what the decedent owned and who received it. For most California homeowners, this is the reason a will alone is not the right plan — not because the will is defective, but because the process it triggers is expensive.
When a Will Alone Is Enough
California’s simplified procedures, restructured by Assembly Bill 2016 effective April 1, 2025, allow a small estate affidavit for personal property where the qualifying estate does not exceed $208,850, and a petition to transfer a decedent’s primary residence where that property does not exceed $750,000. The next scheduled adjustment to these figures is April 1, 2028. Where the estate fits comfortably within these thresholds — or where nearly everything passes by beneficiary designation or survivorship — a will plus powers of attorney may be a complete and sensible plan.
What a Will Does Not Control
A significant share of a typical California estate never passes under the will at all. Retirement accounts, life insurance, and payable-on-death or transfer-on-death accounts pass by beneficiary designation. Property held in joint tenancy or as community property with right of survivorship passes to the survivor automatically. Assets titled in a living trust pass under the trust.
Beneficiary designations override the will. A will leaving “everything equally to my three children” does not redirect a 401(k) that still names an ex-spouse. Reviewing designations is part of the planning work, not an afterthought.
Spouses and Children Who Were Left Out
California protects certain family members who were unintentionally omitted. Under Probate Code section 21610, a spouse who married the testator after the will was executed and who is not provided for may receive a share of the estate roughly equivalent to an intestate share, unless the omission was intentional and that intent appears from the will, the spouse was provided for outside the will, or the spouse waived the right by a valid agreement. Section 21620 provides similar protection for a child born or adopted after the will was executed.
Note the direction of the rule. California does not give a surviving spouse an elective share the way most common-law states do — the community property system serves that function. But a will written before a marriage, and never updated, can be substantially rewritten by these statutes. Updating documents after a marriage, divorce, or birth is not optional.
If you intend to leave a child out, say so explicitly. A will that simply omits a child invites a claim that the omission was accidental.
No-Contest Clauses
A no-contest clause disinherits a beneficiary who challenges the will. California enforces these clauses only narrowly. Under Probate Code sections 21310 through 21315, a no-contest clause is enforceable against a direct contest brought without probable cause, and — only if the instrument expressly provides for it — against a pleading challenging a transfer of property on the ground that it was not the transferor’s property, or against a creditor’s claim.
The practical consequence is that a beneficiary with a genuine, reasonable basis for a challenge can bring it without forfeiting their inheritance. No-contest clauses are still worth including — they deter opportunistic challenges — but they are not the deterrent many people assume, and they are no substitute for careful drafting, clear documentation of capacity, and, where a challenge is likely, a considered strategy.
Changing or Revoking a California Will
A will may be revoked by a subsequent will or by physically destroying it with the intent to revoke. Amendments are made by codicil, executed with the same formalities as a will. In practice, when changes are more than trivial, a complete restatement is cleaner than a stack of codicils that have to be read together and reconciled.
Do not write on the will. Crossing out a name or penciling in a new beneficiary does not accomplish what people expect and can raise questions about whether the whole document was revoked. Store the signed original somewhere secure and make sure your executor knows where it is — California probate ordinarily requires the original, and a will that cannot be found is presumed revoked.
Frequently Asked Questions About California Wills
Does a will avoid probate in California?
No. A will is the instrument that directs probate; it does not avoid it. Avoiding probate requires a funded living trust, beneficiary designations, survivorship title, or an estate small enough for California’s simplified procedures.
Is a handwritten will valid in California?
Yes, if the signature and material provisions are in the testator’s own handwriting, under Probate Code section 6111. No witnesses are required. It is valid, and it is more likely than a drafted will to be litigated.
Do I need a will if I have a living trust?
Yes. You need a pour-over will to catch assets that were never transferred to the trust, and — if you have minor children — the will is the only document that can nominate their guardian.
Does my out-of-state will work in California?
A will validly executed under the law of the place where it was signed is generally recognized in California. Validity is not the issue; suitability is. A will drafted in a separate-property state will not have addressed community property characterization or California probate procedure.
Can I disinherit my spouse or child in California?
A spouse’s community property half is theirs and cannot be given away by your will. Beyond that, California has no elective share, so a spouse’s separate-property expectations can be limited — but only if the will is drafted after the marriage or the omission is clearly intentional. A child may be disinherited if the will says so explicitly.
Talk With a California Wills Attorney
The Holmes Law prepares California wills, pour-over wills, codicils, and complete estate plans, and represents executors and beneficiaries in California probate.
To discuss your will, contact the office to arrange a consultation. You may also want to review our pages on CA traditional wills, CA pour-over wills, California trusts, and California estate planning.