MILTON BERRY SCOTT
A Professional Corporation
Attorney at Law—California
Solicitor—England & Wales
1700 North Broadway, Suite 360
Walnut Creek, California 94596-4138
(925) 945-1480
Fax: (925) 945-8360
www.mbscott.com

WILLS IN CALIFORNIA

A will is a legal document disposing of a person's assets at death. It is made in accordance with state law. A will does not avoid probate or estate taxes, but merely directs who receives the person's assets.

To make a will one must be at least 18 years of age and "competent." This means that the person understands that the document signed is his or her will, knows very roughly what the person owns and who are his or her nearest living relatives. It is not required that a will leave any assets to any living relatives, including spouse or children.

The State of California recognizes several types of wills. The traditional type is a witnessed will, which is signed by an individual and witnessed by two parties. A second type is a handwritten or holographic will which is entirely in the person's handwriting. The material portions of the will must be handwritten It should be dated, and must be signed by the individual. No witnesses are required.

In addition, California recognizes other types of wills. A will is valid in California if it was made and was valid under any of the following conditions:

1. Where it was signed.
2. Where the person lived at the time of signing.
3. Where the person had a place of abode at the time of signing.
4. Where the person was a national or citizen.

The United States is a party to a treaty which recognizes a will if it meets certain requirements and is executed in accordance of the law of the country where it is signed. Virtually all wills made in other states or countries are valid in California, even though they should be reviewed to see if any changes are needed.

A will only controls or disposes of assets in the decedent's name alone. A will does not control or act on assets set up in any of the following ways:

1. Assets which are registered as held in joint tenancy with another person or persons. (By law these assets automatically go to the survivor or survivors).
2. Assets which are subject to beneficiary designation, such as life insurance, annuities, IRA accounts, and pension and profit sharing plans. (The beneficiary designation supersedes the will).
3. Assets which are held in a living trust. (The trust agreement or trust declaration states what happens to these assets at death).
4. Assets in the decedent's name as "trustee" for someone. (The person or persons named as beneficiaries will receive the assets at death)
5. Any assets in the decedent's name which are P.O.D. (payable on death) or T.O.D. (transfer on death) to another. (The named beneficiary will receive the assets.)

California also has two types of statutory wills. These are fixed, preprinted forms that require two or more witnesses. An oral will is not valid, nor is a videotaped will.

Under California law you may leave your assets to anyone you wish. Many countries and states have restrictions, and a portion of the person's assets must go to the spouse, children, or other relatives. This is not true in California. A person may disinherit his or her spouse, children, grandchildren, and other relatives and leave assets to anyone he or she wishes.

You may leave your assets to any individual, corporation, unincorporated association, society, lodge, city, county, government agency, the State of California, any other state, the federal government, any political subdivision, or any foreign government. However, you cannot leave assets directly to an animal, such as your dog or cat. If you do, the court will convert this to a trust to take care of the animal until the animal's death.

Assets which are controlled by the person's will include:

1. All separate property of a married person which is in that person's name alone (Separate property refers to what the decedent owned before marriage and any assets acquired during marriage by gift or inheritance).
2. If the decedent is single, all assets in the decedent's name alone.
3. One-half of each asset which is titled in the husband's and wife's names as community property.
4. The portion which the decedent owned and which was registered with others as tenants in common.
5. Any assets which are not registered but which were owned by the decedent, such as furniture, jewelry, coins, etc.