California Wills and Trusts

Start with the estate and governing instrument

Begin by identifying the decedent's property, domicile, family relationships and any will, trust or amendment. Determine which assets are probate property, which pass by title or beneficiary designation and which are held in trust. A valid will controls only property subject to its disposition, and community or quasi-community property rules can limit what the decedent could transfer.

Create a timeline of instrument execution, amendments, marriage, births, deaths, separation and property acquisition. These dates can trigger omitted-spouse or child rules, revocation, capacity and characterization issues.

Wills: capacity and execution

A California will generally requires testamentary capacity and compliance with an authorized execution method. A witnessed will must satisfy signature, witness-presence and intent requirements. California also recognizes a holographic will when the material provisions and signature are in the testator's handwriting, subject to statutory rules. A defect in one method does not automatically establish validity under another; analyze the facts against the relevant statute.

Undue influence, fraud, mistake or lack of capacity may invalidate some or all of a disposition. Identify the testator's condition, the influencer's role, vulnerability, apparent authority and the result. Do not equate age, illness or family assistance with incapacity or undue influence without applying the legal test.

Revocation, revival and interpretation

A will may be revoked by a later writing or physical act performed with the required intent. A later will can expressly revoke an earlier one or create inconsistency. Destruction by another person may count only under statutory conditions and at the testator's direction. Partial revocation and revival depend on the instrument and California rules.

Interpret the instrument as a whole, giving effect to the testator's intent as expressed in admissible evidence and statutory construction rules. A lapse, failed condition or ambiguous beneficiary designation may redirect property through anti-lapse statutes, the residuary clause or intestacy.

Intestacy and omitted heirs

If no valid will disposes of an asset, California's intestacy statutes determine who inherits. The shares depend on whether the property is community or separate and which relatives survive. A surviving spouse or registered domestic partner has defined rights, with other property passing to descendants, parents or more remote relatives under the statutory order.

A spouse or child omitted from a will may have statutory rights unless an exception applies, such as intentional omission or provision outside the will. Identify when the relationship began relative to execution, what the instrument says and whether another transfer satisfies the statute.

Trust creation and administration

A trust generally requires a settlor with capacity and intent, identifiable trust property, a lawful purpose and ascertainable beneficiaries or another permitted enforcement structure. The trust may be created by transfer during life, declaration, will or another recognized method. Identify the property actually transferred; a written trust does not necessarily fund every asset listed in an informal schedule.

A trustee owes fiduciary duties, including loyalty, prudent administration, impartiality among beneficiaries and compliance with the trust terms. Self-dealing, failure to account, improper investment or unequal treatment can create liability. Beneficiaries may seek an accounting, surcharge, removal or other remedy under the governing rules.

A revocable trust can be amended or revoked by the settlor using the method required by the instrument and statute. At death or incapacity, the trustee's authority and duties depend on the trust terms. Do not confuse the trustee's legal title with beneficial ownership.

Community and quasi-community property at death

Before distributing an estate, characterize property. A decedent may dispose of their share of community property, but not the surviving spouse's share. Quasi-community property can give a surviving spouse statutory rights when property was acquired while the couple lived elsewhere. Its treatment at death differs from dissolution; apply the relevant Probate Code provision and instrument.

Essay sequence

1. Inventory assets and identify title, beneficiary designations and trust transfers.
2. Classify community, separate and quasi-community property.
3. Test each will or amendment for execution, capacity and validity.
4. Analyze revocation, interpretation, omitted heirs and failed gifts.
5. Apply intestacy to any undisposed probate property.
6. For trusts, analyze creation, funding, terms, trustee duties and remedies.
7. State the distribution and unresolved factual issues clearly.

Use California statutory sources and the State Bar's Wills and Succession and Trusts content maps. A fact pattern may involve more than one instrument, so analyze priority and consistency before determining who receives an asset.

Separate probate assets from assets passing another way

Before applying a will, identify which property the decedent could transfer through probate. Property held in a funded trust, jointly held with survivorship, or transferred by a valid beneficiary designation may pass outside the will, subject to the governing instrument and law. A will can dispose only of property within its reach. Title and beneficiary documents therefore belong in the first stage of the analysis.

Suppose a will leaves “my investment account” to a child, but the account names a different beneficiary. Determine the account's title and designation, whether the designation is valid and whether the asset is probate property. Then interpret the will as to remaining assets. Do not assume the will overrides every transfer made during life.

Test execution, capacity and influence separately

A will must satisfy an authorized execution method and the testator must have testamentary capacity at the relevant time. A witnessed will and holographic will have different formal requirements. Evidence that one method fails does not end the inquiry if the document might satisfy another method. Analyze signature, handwriting, witnesses, intent and any statutory harmless-error rule only as the facts and governing California law permit.

Capacity and undue influence are separate challenges. Capacity concerns whether the testator understood the nature of making a will, the general nature of the property, the relations to likely beneficiaries and the disposition being made. Undue influence concerns pressure that overcomes free agency and produces a disposition that would not otherwise have occurred. Age, illness, dependence or a changed gift can be relevant facts, but none alone resolves the legal test.

For example, a caregiver helps an older person arrange a lawyer meeting and is then named as a beneficiary. Analyze what the testator understood, who selected and instructed counsel, whether the caregiver isolated or pressured the testator, and whether the change is consistent with the testator's expressed plan. Do not assume caregiving proves undue influence or that lawyer involvement disproves it.

Read changes and failed gifts in sequence

A later will or codicil may revoke an earlier instrument expressly or by inconsistent provisions. A physical act can revoke a will when the statutory requirements and intent are met. If a beneficiary dies before the testator, a failed gift may pass under an anti-lapse rule, the residuary clause or intestacy depending on the relationship, wording and statute. Work from the latest valid instrument and the event timeline.

If a signed note changes one devise but is not executed as a valid codicil, ask whether it independently qualifies as a holographic will or whether another doctrine permits its use. A testator's intent matters, but intent does not automatically cure formal defects. State the available legal path and the facts that satisfy or defeat it.

Trust funding and trustee duties

A trust document does not necessarily transfer every asset the settlor intended to place in the trust. Identify the trust property, how title was transferred and whether a pour-over will or beneficiary designation affects the result. The settlor may retain rights under a revocable trust; after a triggering event, the successor trustee's authority comes from the instrument and applicable law.

Trustee duties require attention to both the terms and beneficiaries. A trustee must administer the trust according to its purposes and applicable fiduciary standards. Self-dealing, failure to keep records, imprudent handling of assets or unequal treatment may support an accounting, surcharge or removal request. Distinguish a trustee's legal title and control from the beneficiaries' equitable interests.

A trustee who sells an asset to a relative at a price below market raises loyalty and valuation questions. The beneficiary should identify the transaction, the trustee's relationship, the trust's terms, the asset's value and any consent or court approval. A loss alone does not prove every breach, but a conflict and lack of disclosure can be important. Analyze liability and remedy separately.

Characterization limits testamentary power

A decedent cannot devise the surviving spouse's share of community property. First characterize assets as community, separate or quasi-community property, then determine the decedent's power to dispose of each interest. A will may control the decedent's share while the survivor retains an independent ownership interest. At death, quasi-community property follows specific succession rules that differ from dissolution division.

For a business purchased with earnings during marriage, title in the decedent's name does not by itself establish that the whole business can pass under the will. Trace source of acquisition, any separate contribution and later changes. Then identify which portion is subject to testamentary disposition and how a trust or beneficiary designation affects the transfer.

A worked sequence for a contested estate

A decedent signs a will leaving a house to a sibling, later creates a revocable trust naming a child as successor beneficiary, and dies while married. Start with title and determine whether the house was transferred to the trust. Review the will and trust execution, amendments and revocation terms. Characterize the house as community, separate or quasi-community property and determine what share the decedent could dispose of. Then analyze the surviving spouse's rights, omitted-heir rules if raised, and any claim of undue influence or incapacity.

The order avoids assuming that the will controls the house before establishing ownership and transfer. It also separates instrument validity from property characterization and beneficiary rights. A concise answer can state each issue and its consequence without deciding facts the prompt leaves unresolved.