Make a Will in California: 9 Mistakes

This is the single most common reason California wills get thrown out. Under California Probate Code § 6110, a typed will must be signed by the testator (the person making the will) in the presence of at least two witnesses — both of whom must sign the will during the same signing ceremony.

Here's where people slip: a witness who is also a beneficiary isn't automatically disqualified, but their inheritance can be reduced or eliminated under California's "interested witness" rule unless you have at least two additional disinterested witnesses present. Every time I've seen this go wrong, it's because a family member who stood in as a witness didn't realize their gift under the will was now at risk.

One-line takeaway: Use two witnesses who inherit nothing under the will. Full stop.

California does allow holographic wills — wills written entirely in your own handwriting. No witnesses required. But the rules are strict: the material provisions AND your signature must all be in your handwriting. Not mostly. Not mostly with a printed form filled in.

A 1,500-word typed template with handwritten blanks filled in: invalid holograph. A two-paragraph letter you handwrote and signed: valid will. The distinction has sent more than a few estates into contested probate.

Worth knowing: even a valid holographic will still goes through probate. It doesn't bypass the court process. If probate avoidance is the goal, a will alone — typed or handwritten — won't accomplish it.

California law prohibits minors from directly receiving inheritances over $5,000 without a court-appointed guardian of the estate. If you leave $200,000 directly to your 10-year-old niece, a probate court will appoint someone to manage those funds — at ongoing legal cost — until she turns 18. Then she receives everything at once, at 18.

The fix is simple: name a custodian under the California Uniform Transfers to Minors Act (CUTMA) in the will itself, or establish a testamentary trust with a distribution age you choose — 25, 30, whatever makes sense. Clients who come to me after realizing this always say the same thing: "I thought naming them directly was simpler." It is, until it isn't.

California is a community property state. That means any asset acquired during a marriage belongs 50/50 to both spouses by default — regardless of whose name is on the account or title. You can only give away your half in a will. Period.

The practical impact is significant. A married person cannot will their spouse's community property share to a child from a prior relationship. Attempting it creates a legal dispute that can take 12–24 months to resolve in probate court, with legal fees running $5,000–$25,000+ depending on estate complexity. Separate property (owned before marriage, or received as a gift or inheritance during marriage) follows different rules — and keeping records that distinguish the two is essential.

Quick note: domestic partners registered with the state have the same community property rights as married spouses under California law. Many people don't know that.

A will written in 2015 that names your ex-spouse as primary beneficiary is still a valid will. Divorce does revoke bequests to a former spouse automatically under California Probate Code § 21386 — but only if the divorce is final. Legal separation alone does not trigger the revocation.

Beyond divorce, every one of these events should trigger a will review:

• Marriage (a new spouse has statutory rights that may override your existing will)
• Birth or adoption of a child (omitted children have statutory claims under California's pretermitted heir rules)
• Death of a named beneficiary or executor
• Acquiring significant new assets — real estate, business interests, inheritance
• Moving to or from California (community property rules differ by state)

Honestly, this is where most people go wrong philosophically. A will does not avoid probate. In California, estates valued above $184,500 (the 2026 threshold, adjusted periodically by the Judicial Council) must go through probate if the assets are in the decedent's name alone — will or no will.

California probate fees are set by statute: attorneys and executors each receive a percentage of the gross estate value. On a $600,000 estate, that's $14,000 in statutory fees per party — potentially $28,000 total before extraordinary fees. The process typically takes 12–24 months.

A revocable living trust, by contrast, transfers assets outside of probate entirely. Many California estate plans pair a trust (to hold major assets) with a "pour-over will" (to catch anything left outside the trust at death). If you own real property in California, talk to an attorney specifically about this structure.

Naming an executor (called a "personal representative" in California) is only the first step. The will should also specify whether that executor can act as an independent administrator — meaning they can sell property, pay debts, and distribute assets without court approval at every step.

Without independent administration authority written into the will, your executor may need court approval for routine transactions. That adds time and legal fees to an already slow process. The California Independent Administration of Estates Act (IAEA) allows for this flexibility, but it must be invoked properly.

Also: name a successor executor. Primary executors predecease testators more often than people expect, and a will that names only one creates immediate complications.

A will controls far less than most people assume. The following asset types pass directly to named beneficiaries regardless of what your will says:

• Life insurance proceeds (controlled by policy beneficiary designation)
• Retirement accounts — 401(k), IRA, 403(b) (controlled by account beneficiary designation)
• Bank and brokerage accounts with a POD (payable on death) or TOD (transfer on death) designation
• Jointly held property with right of survivorship
• Assets held in a living trust

Generic online will templates — many of which are drafted for multi-state use — routinely omit California-specific language. Common gaps include: no IAEA election, no CUTMA custodian provisions, no specific language addressing community vs. separate property, and no no-contest clause (which California enforces under strict rules).

According to IRS guidance on estate and gift tax, estates above the federal exemption threshold (currently $13.61 million per individual for 2026) also face federal estate tax — a layer most generic templates don't address at all. For complex estates, a template is not a savings; it's a liability.

A flat-fee simple will from a California estate planning attorney runs $300–$750. A full estate plan with a revocable living trust, pour-over will, durable power of attorney, and advance health care directive typically runs $1,200–$3,500. That's the range. Compare that to the $14,000+ in probate fees on a mid-size estate and the math is obvious.