California Family Code Section 760 defines community property as follows:

Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. 

California Family Code Section 770 defines separate property as follows:

(a) Separate property of a married person includes all of the following:

(1) All property owned by the person before marriage.

(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.

(3) The rents, issues, and profits of the property described in this section.

(b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.

For purposes of death, California Probate Code Section 66 defines quasi-community property as follows:

“Quasi-community property” means the following property, other than community property as defined in Section 28:

(a) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired by a decedent while domiciled elsewhere that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time of its acquisition.

(b) All personal property wherever situated, and all real property situated in this state, heretofore or hereafter acquired in exchange for real or personal property, wherever situated, that would have been the community property of the decedent and the surviving spouse if the decedent had been domiciled in this state at the time the property so exchanged was acquired.

A married person or registered domestic partner has the authority to transfer his or her separate property and 1/2 of the community property and quasi-community property.

Such person's Will has no authority to distribute more than that person's interest in the community or quasi-community property. Often, married people or registered domestic partners don't carefully consider the appropriate separate or community property character of their assets and therefore fail to consider how their property will get distributed at the time of their death. Consulting with a trained estate planning lawyer will help to ensure that everyone is on the same page.

The Statutory Will is essentially a form with a number of blanks for the Testator to fill in. The methods by which your assets will be transferred at the time of your death are somewhat limited, but may be more than adequate for individuals with small estates. It is important to note, however, that relying upon a Will, statutory or otherwise, may require your estate to be probated.

The California Statutory Will and the laws that give rise to it are provided in California Probate Code Sections 6200-6243. Under Probate Code Section 6220, any individual of sound mind and over the age of 18 may execute a California Statutory Will. A Statutory Will must also be witnessed by at least 2 people who both observe the Testator's signing and who both sign their names in the presence of the Testator, as described in Probate Code Section 6221(b).

If you are in a situation where you do not have time to consult with an estate planning lawyer, you may want to establish a Statutory Will as a stop-gap measure until you are able to meet with a lawyer to discuss the specifics of your estate plan. Often, this might be before a vacation or a major medical procedure. By having a Statutory Will in place, you will have a plan, even if imperfect, for how your assets will be distributed.

For a complimentary consultation to determine whether a Statutory Will is appropriate for your situation, you may click here to schedule an appointment with us.

A major focus of estate planning is to ensure that there's a coordinated, coherent, and unified distribution of your assets. That is, you should have a relatively clear idea of who gets what after you pass away.

Many times people confuse exactly which assets get distributed in accordance with their Will. For example, if Bill created a Will where he says he leaves everything to Jessica, Bill may believe that Jessica will get all of his assets when he passes away. However, some assets are not controlled by the Will (i.e., nonprobate assets), and to the extent that Bill has those types of property, extra steps need to be taken to ensure that they go to the appropriate people.

Here's a rundown of some of these types of assets:

1. Joint Tenancy Assets - Any asset held as "joint tenants" or "joint tenants with right of survivorship" with others will automatically pass to the surviving joint tenants upon death. 
2. Community Property With Right of Survivorship - In California, married couples may hold some assets as "community property with right of survivorship". This operates similar to joint tenancy in terms of having property pass to the survivor.
3. Revocable Transfer on Death Deed - This is a special type of deed, which allows real property to be transferred automatically to designated beneficiaries upon the owner's death.
4. Pay-on-Death Accounts - Some types of bank accounts allow you to name a beneficiary to receive the account after the owner passes away.
5. Life Insurance - The proceeds from life insurance are payable to the beneficiaries that the policy owner(s) have named.
6. Retirement Accounts - Similar to life insurance policies, retirement accounts get paid to the beneficiaries that the owner(s) have named.

It's easy to lose track of all of these assets, especially if for example, you've switched jobs a number of times and have multiple 401k accounts with various employers. However, to have a clear and unified estate plan, it's important to have a thorough understanding of who will receive each of your assets at the time of your death, since the Will controls the disposition of only certain types of property.

Not all Wills must be witnessed. If the signature and material provisions are handwritten by the Testator, then it may qualify as a holographic Will. See California Probate Code Section 6111(a). Holographic Wills are generally done without the consultation of a lawyer and as a result contain often contain ambiguities or incomplete instructions as to how the Testator's assets are to be distributed. 

Commercially Printed Will?

California Probate Code Section 6111(c) states: "Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will." Therefore, the use of commercially printed forms is permissible.

Invalidity?

If the holographic Will is not dated, there are some situations in which it may be found partially invalid. California Probate Code Section 6111(b) states:

b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

Holographic Wills can be helpful if drafted clearly enough. However, most laypeople who aren't familiar with the estate planning process are likely better off using the California Statutory Will form as an alternative to hiring a qualified estate planning lawyer.