4 minute read

Statutory Will: What You Need to Know

Statutory Wills are a state-provided option for simple will creation... but are they the best fit? Get a Statutory Will definition and learn how they work.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

A Statutory Will is a special estate planning document that’s very specific in terms of what it can accomplish and who it’s right for. Learn everything you need to know about Statutory Wills, including what they are, when they’re used, who they’re for, how to create one, and more in this Statutory Will guide.  

What is a Statutory Will?

A Statutory Will is exactly what it sounds like, a type of estate planning tool that’s allowed by law, usually at the state level. It frequently involves a set template and formal language with fill-in blanks for a user’s identification and application to their property. 

Statutory Wills are created by a state legislature before being written into state law. You can use them for free, making them an appealing option for many people to consider if cost is a prohibitor to completing an Estate Plan.  

The user adds their name, identified assets and beneficiaries and then the template generally takes care of the rest of the details for a basic Last Will and Testament. Because it’s a template, users only have the set language provided by law. This means you really can’t use a Statutory Will for customized situations, since you can’t add specific language about anything you want to see put into effect. For that, you’d have to draft a regular Will. 

Statutory Wills provide an easy way to create a very basic Estate Plan so that family and beneficiaries are not left hanging in the probate process without any guidance or details on what to do when someone passes on. The tool is simple and easy to apply but, again, it cannot be tailored to specific situations or needs. It is, literally, a one-form-fits-all estate planning document.

What Does Statutory Will Mean?

The term “statutory” is a legal reference for law that’s passed by a state legislature or Congress and put into code. There are codes for all types of law, ranging from the public resources code, to the health & safety code. 

Looking for a formal Statutory Will definition? A Statutory Will is a type of estate planning tool that’s spelled out in design, content, form and appearance by state code. You can’t change it unless the law is changed. If followed exactly, a Statutory Will is considered a legally binding estate planning document, and the courts will recognize it as such.

When Should a Statutory Will Be Used? 

Because of how the Statutory Will is created under code, it cannot be tampered with, changed or modified. That means if there are default conditions that don’t work well for how you want your assets distributed after you pass away, you can’t customize anything on the Statutory Will form. If you try to do so, even if signed, a probate court won’t recognize the document as valid. 

So, if you really want to see a specific distribution or treatment occur with assets different from the generic nature of a Statutory Will, a Regular Will or another estate planning tool is going to be the better path to take.

Statutory Wills may be a good option if:

  • You’re worried about cost

  • You have a simple estate

  • They are allowed in your state

  • You are married and want to leave everything to your spouse

  • You have an emergency situation and need to get your Will written ASAP (I.E., you’re leaving on a trip and want to have a Will in place, just in case)

Statutory Will vs. Regular Will - What’s the Difference? 

Unlike a Statutory Will, a Regular Will is a crafted legal instrument that fully reflects your interests and wishes. Wills can be developed and completed by a licensed attorney, done through DIY methods or created via an online platform. It will cost more to cover the services and work of the attorney if you want to use one to write your Will to match your specific estate details and intent. 

The benefits of having a regular Will vs a Statutory Will, whether you go the attorney route or an online platform route, are that your Will ultimately will be written as closely as possible to how you want your property distributed after death.

Common Questions About Statutory Wills

Some of the more common questions about Statutory Wills are often associated with who can use one and why.

Who Can Apply for a Statutory Will?

Any adult with legal title to assets who is competent in mind and health can apply for a Statutory Will for themselves. The tool is crafted for the widest possible audience of users by law. 

However, when applying for a Statutory Will for another person, that person has to be proven incapacitated to the court, and the filer has to be a recognized guardian or conservator of the person or a Trustee of the court. Without that legal relationship established, such a Statutory Will cannot be considered valid by the user executing it, even if an attorney is involved.

In some cases, a spouse may want to execute a Statutory Will for a partner who’s incapacitated. Again, the court would need to see documentation of incapacity, but a spouse does have greater weight in the matter, especially under a community property situation. Understandably, many people may opt to work with an attorney or use a more flexible online platform under these circumstances, versus trying to use a template like the Statutory Will.

How Long Does It Take to Get a Statutory Will?

California is one of the few states that provides for a Statutory Will, along with Maine, Michigan, New Mexico and Wisconsin. The Golden State provides for the Statutory Will under Probate Code Section 6420, which essentially requires two legal witnesses (legal adults). It’s good practice to also have the document notarized and consider a third legal witness to ensure your Will is as iron clad as possible. 

The time it takes to produce and execute the California Statutory Will mainly depends on how long it takes for someone to fill out the form, coordinate with the witnesses and get everything signed. Generally, if everyone is willing, the process can be completed in just a day or two.

How Do You Execute a Statutory Will?

Each state can have its own policy and procedure, but a California Statutory Will is simple to get. Just download and fill out the California state-specific Statutory Will form.

With the form complete, identify and secure the assistance of two legal adults who can act as your witnesses signing the document. Ideally, it’s easier to have everyone meet with a notary, and the notary can act as a licensed third witness to confirm everyone and notarize the document. You’ll have to pay the notary a fee for his or her service.

Once the document is signed and complete, it’s legally executed. Put a copy in a safe place, like a deposit box in your bank, a legacy drawer, fireproof safe, file cabinet or desk drawer at home. Be sure to keep a second copy in a place where you can find it for easy reference. Finally, provide a third copy to someone you trust as an additional reference in case there is difficulty finding the other copies. 

Should You Get a Statutory Will?

Again, the Statutory Will is not for everyone. It should generally be used when the distribution of assets is extremely simple, or when a Will is needed in a pinch because nothing exists for an Estate Plan.

While the Statutory Will can be downloaded and filled out by anyone, any situation where a Grantor (the Will creator) wants to leave something specific to someone, or wants to ensure special treatment for a beneficiary, should probably be handled through a regular Will or other estate planning document, like a Trust, instead.

If you’re ready to start or update your Estate Plan, now is the time to do so. Don’t put it off any longer. Online estate planning platforms like Trust & Will make estate planning easy, affordable and effective. You can create a solid plan that protects you and your loved ones today, and tomorrow.  

By now you should have a pretty good answer to the question: What is a Statutory Will? You also probably know if a Statutory Will is right for you and your estate planning needs. In the right circumstances, a Statutory Will may be the ideal solution to put your mind at ease. 

Is there a question here we didn’t answer? Reach out to us today or Chat with a live member support representative!