California State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

California Law
Probate jurisdiction rests with the Superior Court
Probate laws are primarily under the Probate Code – PROB

Minimum age requirement to:

Distribute property by will: 18 (Probate Code Section 6100)
Which minor gets property: 18 to 25

Holographic will recognized (Probate Code Section 6111)

State taxes:

Estate tax: Equal to federal credit for state death taxes (Revenue and Taxation Code Sections 13301 and 13302)
State gift tax:Inheritance tax: No inheritance tax (Revenue and Taxation Code Sections 13301 and 13302)
- No state gift tax (Revenue and Taxation Code Sections 13301 and 13302)
- Anatomical Gift Act (Health and Safety Code Sections 7150 to 7158)
Inheritance tax: No inheritance tax (Revenue and Taxation Code Sections 13301 and 13302)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Probate Code Section 6401 and 6402)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - All of your community property to your surviving spouse, and
  - If only one child, then one-half (1/2) of your separate property to your spouse and the other one-half (1/2) to your surviving children according to their per stirpes share
  - If more than one child, then one-third (1/3) of your separate property to your surviving spouse and the other two-thirds (2/3) to your surviving children according to their per stirpes share
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - One-half (1/2) of your community property, one-third (1/3) of your life estate in separate property, and one-third (1/3) of your life estate in personal property to your surviving spouse, and
    - the other one-half (1/2) of your community property, two-thirds (2/3) of your life estate in separate property, and the other two-thirds of your life estate in personal property split equally among the surviving children or to their children according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your community property, one-half (1/2) of your separate property, to your surviving spouse, and
      - The other one-half (1/2) of your separate property to your siblings equally or to their children according to their per stirpes share. If no siblings, then all to your surviving spouse
    - No children, but at least one of your parents survives you:
      - All of your community property and one-half (1/2) of your separate property to your surviving spouse, and
      - The other one-half (1/2) of your separate property split equally among your surviving parents
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) or to their children according to their per stirpes share. If none, then to your next of kin

Who must be named as a beneficiary in your will:

Surviving spouse (Section 21620), andChildren, born or adopted, and grandchildren of any deceased child (Section 21610)
- Surviving spouse must be given one-half (1/2) of your community property (Probate Code Section 100)
Children, born or adopted, and grandchildren of any deceased child (Section 21610)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced surviving spouse, unless will expressly provides for divorced surviving spouse (Probate Code Section 6122)
You get married without changing your will that does not provide for your new spouse:
- Revokes will as to surviving spouse, but surviving spouse may still be entitled to shares under state intestate law (Probate Code Section 21610)

Witnesses:

Minimum number of witnesses required: Two (Probate Code Section 6110); If patient is in a skilled nursing facility, then a third witness who must be a patient advocate or ombudsman (Probate Code Section 4701)
Are witnesses allowed to be beneficiaries?: Yes (Probate Code Section 6112)
Requirements to be a witness, witnesses must:
- Be an adult,
- Not be appointed as your agent, healthcare provider, an employee of your healthcare provider, operator or employee of a residential care facility for the elderly,
- not be related to you by blood, adoption, or marriage,
- not be entitled to anything in your will, and
- If patient is in a skilled nursing facility, then a third witness who must be a patient advocate or ombudsman (Probate Code Section 4701)

Property ownership (Family Code Sections 750, 760, 770, and Civil Code Section 683):

Community property state
Unless otherwise stated, property in the name of your spouse as joint tenants is not community property
Joint tenancy must be stated with clear language
Only if bank accounts have rights of survivorship stated, are deposits payable to survivors
Tenancy by the entirety is not recognized in this state

Other types of wills:

Self-proving wills recognized: Yes, recognized (Probate Code Section 8221)
Living will: California Advanced Health Care Directive (Probate Code Section 4701)Durable Power of Attorney (Section 4120-4230)
- Includes:
  - Power of Attorney for Health Care,
  - Instructions for Health Care,
  - Donation of Organs, and
  - Appointment of Primary Physician
  - Effective when:
    - Diagnoses by two different physicians to an incurable and irreversible condition that will lead to death in a relatively short period of time,
    - Become unconscious, and to a reasonable degree of medical certainty will not regain consciousness, or
    - The likely risks and burdens of treatment would outweigh the expected benefits
Durable Power of Attorney (Section 4120-4230)