Estate Planning in California

Married with children (same marriage)

Spouse inherits all of the decedent's community property (they already own their own half). For separate property, the spouse receives one-half if there is one child, or one-third if there are two or more children. The children receive the remainder.

Married with children from a prior relationship

Same rule applies — California's intestacy does not distinguish between children from the current marriage and children from a prior relationship. The spouse receives all community property plus their share of separate property based on the number of children.

Married, no children

Spouse inherits all community property. For separate property: spouse receives everything if there are no surviving parents, siblings, or issue of siblings. If there are surviving parents or siblings, spouse receives one-half of separate property and the rest goes to the parents or siblings.

Single with children

Children inherit everything equally, per stirpes.

Single, no children

Parents inherit equally. If only one parent survives, that parent inherits everything. If neither parent survives, siblings inherit equally. The chain continues through increasingly distant relatives.

What makes a will valid

A formal will must be in writing, signed by the testator, and witnessed by two people who are present at the same time. The witnesses must observe the testator sign or hear the testator acknowledge the signature, then sign the will themselves.

What people think

That a holographic will is just as reliable as a formal will, or that notarization is required or helpful.

What actually happens

Holographic wills are valid in California but are the most frequently litigated type of will. Ambiguous handwriting, unclear intent, and the absence of witnesses create opportunities for challenges. Notarization is not used in California for wills — the attestation clause under penalty of perjury serves the same purpose.

Common failure

Using a beneficiary as one of only two witnesses (which can void their bequest), holographic wills with ambiguous or incomplete provisions, and failing to have witnesses present at the same time.

When a trust is better

Almost always, if you own real property in California. The statutory probate fees make a trust a financial imperative — not just a convenience — for anyone with a home. A revocable living trust paired with a pour-over will is the standard California estate plan.

Execution checklist

1. Sign the will at the end of the document
2. Have two witnesses present at the same time who observe you sign or acknowledge your signature
3. Both witnesses sign the will — ideally with an attestation clause under penalty of perjury
4. Do NOT use beneficiaries as witnesses unless at least two other non-beneficiary witnesses also sign
5. Store the original securely — it must be filed with the Superior Court after death

What it does

Grants authority to a named agent to manage financial and legal affairs on your behalf.

Key rule

California provides a Uniform Statutory Form Power of Attorney that is widely accepted. The document must be signed, dated, and either notarized or witnessed by two people. For any real estate transactions, notarization is practically required — title companies typically won't accept a witnessed-only POA.

Real-world friction

Financial institutions sometimes reject POAs, especially older ones. Using the California statutory form reduces friction. Some banks have their own POA forms they prefer — which is frustrating but common.

Common mistake

Not notarizing the POA when the agent may need to handle real estate. Also: not specifying whether the POA takes effect immediately or only upon incapacity (a springing POA).

What it covers

California combines healthcare instructions (your wishes for treatment) and healthcare agent designation (who makes decisions) into a single document called an Advance Health Care Directive.

What's different

California's combined form is simpler than states that require separate documents. However, the witness restrictions are strict: the person you designate as your agent cannot serve as a witness, and specific healthcare-related parties are disqualified.

Execution requirements

Must be signed by the principal and either notarized or witnessed by two qualified adults. Witnesses cannot be your healthcare provider, the operator of a community care facility, or an employee of either.

Common misunderstanding

Assuming that a financial POA gives your agent healthcare authority. California separates these completely — you need both a financial POA and an Advance Health Care Directive.

When required

When assets worth more than $208,850 in personal property (or any real property) are held solely in the decedent's name without a beneficiary designation, TOD deed, or trust.

What makes California different

California probate is among the most expensive in the country because attorney and executor fees are set by statute as a percentage of gross estate value. These fees are not negotiable. This single fact drives the widespread use of trusts in California.

Probate paths

What people get wrong

Assuming probate is manageable because the estate isn't that large. In California, a modest $800,000 home (common in many markets) triggers approximately $36,000 in statutory fees for the attorney and executor combined. Probate is a percentage problem, not a complexity problem.

When a trust is useful

Almost always, if you own real property in California. The statutory probate fees make trusts financially essential — not optional. A revocable living trust avoids probate, provides privacy, enables management during incapacity, and eliminates ancillary probate for multi-state property owners.

When a trust is unnecessary

If you have no real property, your personal property estate is under $208,850, and all significant assets have beneficiary designations. In this narrow case, a will plus beneficiary designations may suffice.

Key mistake

Creating a trust but failing to fund it. In California, this means the home goes through probate at full statutory fees despite a trust existing. Every asset must be retitled — real property must be deeded, bank accounts retitled, and investment accounts transferred.

Owning a home without a trust

California's statutory probate fees on a $1M home total approximately $46,000 for attorney and executor combined. A trust avoids this entirely.

Relying on a holographic will for complex estates

Holographic wills are valid but easily challenged. Ambiguous language, unclear intent, and the absence of witnesses create expensive litigation. Formal wills are always preferable.

Using a beneficiary as a witness

A beneficiary who witnesses the will may lose their bequest unless two other non-beneficiary witnesses also signed. Always use disinterested witnesses.

Assuming the spouse inherits all separate property

The spouse inherits all community property, but only one-half or one-third of separate property depending on the number of children. Parents and siblings may inherit the rest.

Creating a trust but not funding it

An unfunded trust provides zero probate avoidance. Real property must be deeded to the trust. Bank and investment accounts must be retitled. This is the most common estate planning failure in California.

Not understanding quasi-community property

If you moved to California from another state, assets acquired during marriage in that state may be treated as quasi-community property in California — affecting both divorce and inheritance.