A will is the foundational estate-planning document — the place you name who inherits your property, who raises your minor children, and who administers your estate. But in California a will has real limits: by itself it does not avoid probate. This guide explains how California wills work, what makes one valid, and how a will fits with the rest of a plan.

This is general information about California law, not legal advice. Consult a California-licensed estate planning attorney about your situation.

What a will does

A California will lets you do three main things: direct who receives your property at death, nominate a guardian for your minor children, and name an executor (personal representative) to carry out your wishes. Without a will, California's intestate succession statute decides who inherits, and a court decides guardianship without your input.

What a will can do

  • Distribute property you own in your own name — specific gifts to named people and a residuary clause for everything else.
  • Nominate a guardian for minor children (the court still confirms the appointment, but your nomination carries great weight).
  • Name an executor and, if you wish, waive the bond that would otherwise be required.
  • Create a testamentary trust — a trust that springs into existence at death, often used to hold a minor's or a beneficiary's inheritance until a chosen age.
  • Disinherit someone (with the important exception of a surviving spouse's community-property rights and the omitted-spouse and omitted-child protections discussed below).

What a will cannot do

  • Avoid probate. A will is the instruction set the probate court follows; it does not keep assets out of court.
  • Control non-probate assets. Retirement accounts, life insurance, payable-on-death accounts, and joint-tenancy property pass by their own beneficiary designation or title — a will provision to the contrary does not override them.
  • Operate during your lifetime. A will has no effect until you die; it does nothing to manage your affairs if you become incapacitated (that is the job of a durable power of attorney and an advance health care directive).
  • Impose unlawful or impossible conditions on a gift.

What makes a will valid in California

Under Prob. Code § 6110, a standard California will must be (1) in writing, (2) signed by the person making it (the testator) or by someone at their direction, and (3) witnessed by at least two people who are present at the same time, understand the document is the testator's will, and sign it themselves. The testator must be at least 18 and of sound mind. Witnesses generally should be disinterested (not beneficiaries), since a gift to an interested witness can be challenged.

Capacity and the soundness-of-mind test

California sets a relatively low bar for testamentary capacity (Prob. Code § 6100 and § 6100.5). To make a valid will, the testator must generally understand the nature of the act (that they are making a will), understand and remember the nature and situation of their property, and remember and understand their relationship to the people who would naturally be expected to inherit. A diagnosis such as dementia does not automatically void a will; the question is the testator's understanding at the moment of signing. Wills are also vulnerable to challenge for undue influence, fraud, duress, or menace — for example, where a caregiver or other person in a position of trust pressures a vulnerable testator into a gift.

Witnessing and the “interested witness” rule

The two witnesses must be present together when the testator signs (or acknowledges the signature), and they must sign during the testator's lifetime. If a witness is also a beneficiary, the gift to that witness is presumed to have been procured by wrongdoing and may be reduced or voided unless there are two other disinterested witnesses or the presumption is rebutted (Prob. Code § 6112). The safe practice is always to use witnesses who inherit nothing under the will.

Holographic (handwritten) wills

California also recognizes a holographic will (Prob. Code § 6111): one in which the signature and the material provisions are in the testator's own handwriting. A holographic will needs no witnesses. While valid, handwritten wills are more easily contested and more prone to ambiguity, so they are best treated as a stopgap rather than a plan. Common problems include unclear gifts, missing residuary clauses, undated pages (date can matter when there are competing documents), and language that reads like a wish rather than a binding direction.

California statutes that govern wills

The rules summarized in this guide come mainly from the California Probate Code:

  • Prob. Code § 6100 — who may make a will (any person 18 or older and of sound mind).
  • Prob. Code § 6100.5 — mental capacity required to make a will.
  • Prob. Code § 6110 — execution requirements: writing, signature, and two witnesses present at the same time.
  • Prob. Code § 6111 — holographic (handwritten) wills.
  • Prob. Code § 6112 — witnesses, including the interested-witness presumption.
  • Prob. Code § 6120–6124 — revocation of wills.
  • Prob. Code § 21610 et seq. — the omitted (pretermitted) spouse.
  • Prob. Code § 21620 et seq. — the omitted child.
  • Prob. Code § 6400 et seq. — intestate succession when there is no valid will.

A will does not avoid probate

This is the most important and most misunderstood point: a will does not keep your estate out of probate. A will is the instruction set the probate court follows. If you die owning assets in your own name above California's small-estate limit ($239,700 for deaths on or after April 1, 2026), those assets generally go through probate whether or not you had a will. To avoid probate, Californians typically use a funded revocable living trust, paired with a "pour-over" will that catches anything left out of the trust.

The pour-over will

A pour-over will is the bridge between a will and a trust. It directs that any asset still titled in your own name at death — something you forgot or never got around to transferring into your living trust — "pours over" into the trust, so it is ultimately distributed under the trust's terms. The pour-over will is also where you nominate guardians for minor children, because a trust cannot do that. Note that assets caught only by the pour-over will may still have to pass through probate if they exceed the small-estate limit, which is why thoroughly funding the trust during your life remains essential. See living trusts in California for how funding works.

How to make a California will: step by step

  1. Take inventory. List what you own and how each asset is titled, and note which assets already pass by beneficiary designation or joint ownership (those are not controlled by your will).
  2. Decide your beneficiaries and shares. Choose who receives specific gifts and who receives the residue (everything else).
  3. Choose an executor and at least one alternate — someone organized and trustworthy who is willing to serve.
  4. Nominate a guardian for any minor children, plus a backup.
  5. Decide whether a trust is the better centerpiece. If you own a home or substantial assets, a funded living trust with a pour-over will usually serves you better than a will alone.
  6. Sign with the proper formalities. Sign in front of two disinterested witnesses who are present together and who sign in your presence (Prob. Code § 6110).
  7. Store it safely and tell your executor where the original is. California allows you to deposit a will with the Superior Court clerk for safekeeping, and the original (not a copy) is what the court needs.
  8. Review after major life events — marriage, divorce, a new child, a death, a large purchase, or a move to or from California.

Changing or revoking a will

You can change a will with a codicil (a witnessed amendment) or revoke it by making a new will or by physically destroying it with intent to revoke (Prob. Code § 6120–6124). Major life events — marriage, divorce, the birth of a child, a death in the family — should trigger a review. California law has special rules for an omitted spouse or omitted child (one not provided for because they came into the family after the will was made), who may be entitled to a share despite the will's silence (Prob. Code § 21610 and § 21620). Divorce automatically revokes gifts and fiduciary appointments in favor of a former spouse, but it is far safer to update the will than to rely on that default.

If you die without a will

Dying "intestate" means California's succession statute (Prob. Code § 6400 et seq.) decides who inherits — generally your spouse or domestic partner and your closest relatives, by formula. Your share of community property typically passes entirely to a surviving spouse or registered domestic partner, while separate property is divided between the spouse and your children, parents, or siblings depending on who survives you. Unmarried partners, stepchildren you never adopted, and friends inherit nothing under intestacy, and the estate still goes through probate. A will (or better, a trust) puts those decisions back in your hands.

Frequently asked questions

What makes a will valid in California?

It must be in writing, signed by the testator, and witnessed by two people present at the same time (Prob. Code § 6110). A fully handwritten "holographic" will needs no witnesses (§ 6111).

Does having a will avoid probate?

No. A will is what the probate court uses to administer the estate; it does not avoid probate. A funded living trust is the tool that keeps assets out of probate.

Is a handwritten will legal in California?

Yes — a holographic will is valid if the signature and material terms are in the testator's handwriting (Prob. Code § 6111). But handwritten wills are more easily contested and best used only as a temporary measure.

How do I change my will?

By a witnessed codicil or by making a new will. Destroying the will with intent to revoke also works. Review your will after major life events.

Can I disinherit my spouse or child in California?

You generally cannot defeat a surviving spouse's interest in community property, and California protects an "omitted" spouse or child who came into the family after the will was made (Prob. Code § 21610, § 21620). To intentionally leave an adult child little or nothing, the will should say so clearly so the omission is not mistaken for an oversight. These situations are worth reviewing with an attorney.

Do my witnesses have to be present together?

Yes. For a standard (non-holographic) will, both witnesses must be present at the same time when you sign or acknowledge the will, and they must sign during your lifetime (Prob. Code § 6110). Use witnesses who do not inherit under the will to avoid the interested-witness problem.

When to talk to a California estate planning attorney

Many simple wills are straightforward, but the cost of a mistake is high because a defective will can throw an entire estate into a probate dispute. Consider getting California-licensed counsel if you own a home or other real estate, have a blended family or minor children, want to disinherit or unequally treat heirs, own a business, hold property in more than one state, or have a beneficiary with special needs. An attorney can also tell you whether a will alone is enough or whether a funded living trust would serve you better, and can make sure your beneficiary designations, power of attorney, and health care directive all fit together.

Talk to a California estate planning attorney

For the complete picture, see our complete estate planning guide. To find a California-licensed attorney, browse the directory of attorneys licensed by the State Bar of California, across all 58 counties, by practice area and county — free, no obligation.