Santa Cruz Estate Planning Attorney

Do-it-Yourself Will

This topic about creating your own Will is limited to a traditional-witnessed Will. California also acknowledges holographic and statutory wills, but they are not going to be discussed here. This topic is meant only as an educational resource for those looking to create their own Will and is not meant to replace legal advice regarding your specific situation.

Creating a Will is an important thing and for many it can be done without the help of an attorney. There are books, websites and programs that can help you create a will and help assure all the legal formalities are followed. It is important to know what issues may make your will more complicated. For example, if you have children from a divorce it is important to understand how custody issues interact with guardianship issues. Understanding probate and how it will be impacted by the type of assets you own may impact how your will is handled.

I have provided a simple will outline. This is not a thorough outline like you would find in a Nolo Press book or at a legal library, but it can provide a good idea at what a will should look like. Realize this is just one step to creating your own will and it is important to invest enough time researching.

The following sections are numbered to match the section in the example Will.

  1. Declaration of Marital or Partnership Status: This section is generally brief and just notifies the reader if you are married or in a domestic partnership. It also can include information about a divorce if it is relevant for issues like shared custody of minor children.
  2. Declaration Concerning Children: This is also a brief section to provide the reader with information regarding your children and their ages. Knowing if you have minor children is important information.
  3. Guardian of Children: For those without minor children this section can be deleted, however if you have minor children this is an important section. Nominate a guardian and at least one alternative so if anything happens you know what will happen to your children. If you have more complicated issues such as a divorce it may be important for you to talk to an attorney to understand any issues that may come up.
  4. Nomination of an Executor: This is the person who will be responsible for handling your final affairs. It is important to pick somebody you trust and that can handle the burden. It is also wise to select at least one alternative.
  5. Distribution of Assets: This generally is made up of two types of gifts. The first is specific gifts of property and the second is a percentage gift of the remainder of your estate. Generally you will break up your specific gifts into categories and list them one at a time. What property you own will dictate what categories you use, but I have listed a few common categories in the example. The second type of gift lets you leave everything else not specifically gifted to a person or group. This is called the residue of your estate. Many people just choose to use this type of gift to leave their estate to their children in equal shares.
  6. No contract to Create Will: This is a common clause used for married couples to meet a legal formality. There are a number of these types of clauses that are created for formality reasons.

Signatures and Witnesses: The creator of the will must sign it in front of two witnesses. Those witnesses must also sign the will. It is very important to choose two witnesses that are not interested parties. That means they cannot receive any benefit from your will.

Sample Will for Educational Purposes


WILL OF________________________________


I, ___________________, a resident of ______________ County, California, declare this to be my will. I revoke all wills and codicils that I have previously made.


1. DECLARATION OF MARITAL OR PARTNERSHIP STATUS:

I am married to ____________________.

I am not married.


2. DECLARATION CONCERNING CHILDREN:

I have ________ children; named ________________who was born on _____________ and ____________________ born on _______________. All references in this will to my "children" are to the children just named and no others.


3. GUARDIAN OF CHILDREN:

If for any reason it is necessary to appoint a guardian of the person of any of my children, I nominate ____________________ act as the guardian. If this nominee shall fail to qualify or cease to act, I nominate __________________ to act as the guardian.


4. NOMINATION OF EXECUTOR OF WILL:

I nominate the persons listed below, in the order and priority indicated as executor and alternate or successor executor of my will.

A. First Nominee: name; address

B. Alternate or Successor Nominee: name; address


No bond should be required of executor.


5. DISTRIBUTION OF PROPERTY:

A. Gifts of Real Property

B. Gifts of Personal Property

C. Gifts of Vehicles

D. Gift of Residue of Estate


6. NO CONTRACT TO CREATE WILL:

I have not entered into any contract to make this will and any similarity of the provisions of this will to the provisions of a will of my spouse shall not be construed as evidence of such a contract.

______________________________________ (Signature of Creator of Will)


Executed on ________________ (date), at ________________ (City), California.


STATEMENT OF WITNESSES

I declare under penalty of perjury under the laws of California that (1) On the date written below the creator of this Will declared to me that this instrument was their Will and requested us to act as witnesses to it, (2) I understand this to be the creator's Will, (3) the creator signed this Will in my presence, (4) the creator appears to be of sound mind and under no duress, fraud, or undue influence, (5) the creator and each witness is 18 years of age or older and (6) I am not the recipient of any gifts designated in this will.

___________(Witness' Signature) ________________ (Residence Address)

___________(Print Name) ___________(Date)


___________(Witness' Signature) ________________ (Residence Address)

___________(Print Name) ___________(Date)


DISCLAIMER: Sample for Educational Purposes