V. WILL DRAFTING GENERALLY
A. FORMAL REQUIREMENTS
§ 41:131 Generally
The right and power of a person to dispose of property by will is purely statutory.50 The Probate Code contains the statutory requisites for making and executing a will, for revoking or modifying a will, and related matters.51 Although the courts generally require that the statutory requirements for execution of a will have been strictly followed, they will try to find that a will has been validly executed.52
Before the death of the testator, the will is ambulatory and is subject to revocation or modification.53 A will speaks from the date of death and its validity is determined as of that date. A will that was invalid when executed may be made valid by change in law before testator's death.54
Footnote 50. Kizer v Hanna (1989) 48 Cal 3d 1, 255 Cal Rptr 412, 767 P2d 679.
Footnote 51. See especially Prob C §§ 6100 et seq.
Footnote 52. Estate of McCabe (1990, 5th Dist) 224 Cal App 3d 330, 274 Cal Rptr 43.
Practice Aids:
Annotations: Fact that instrument is designated or otherwise identified as a copy as affecting its status as will, 81 ALR2d 1112.
--Effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like, 46 ALR3d 938.
--Electronic tape recording as will, 42 ALR4th 176.
--Payable-on-death savings account or certificate of deposit as will, 50 ALR4th 272.
Footnote 53. See Prob C §§ 6120-6123.
Footnote 54. Estate of MacLeod (1988, 4th Dist) 206 Cal App 3d 1235, 254 Cal Rptr 156.
§ 41:132 Who may make a will; testamentary capacity
An individual 18 or more years of age who is of sound mind may make a will.55 An individual is not mentally competent to make a will if either of the following is true:56
1. The individual lacks sufficient mental capacity to be able to understand the nature of the testamentary act, understand and recollect the nature and situation of the individual's property, or remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will; or
2. The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.
Testamentary capacity is determined as of time of making the will. 57
þNote: Appointment of conservator does not mean that the conservatee lacks mental capacity to make a will. There must be proof that the testator was incompetent when the will was executed. Old age, forgetfullness, eccentricities, inability to transact business, filthy personal habits, or mental feebleness or confusion at various times are not in themselves sufficient to establish lack of capacity. If testator has mental illness in which there are lucid periods, there is a presumption that will was made during one of those periods.58
Footnote 55. Prob C § 6100.
Footnote 56. Prob C § 6100.5(a).
Practice Aids:
Texts: Testamentary power and capacity generally. 64 Cal Jur 3d, Wills §§ 36 et seq.
Am Jur Proof of Facts: Lack of testamentary capacity by reason of insane delusion. 40 Am Jur Proof of Facts 2d 339.
--36 Am Jur Proof of Facts 2d 109, Undue influence in execution of will.
--18 Am Jur Proof of Facts 2d 1, Mentally disordered testator's execution of will during lucid interval.
--1 Am Jur Proof of Facts 2d 323, Mistake in the inducement in wills.
Am Jur Trials: Testator's capacity generally. 9 Am Jur Trials 607, Determining Testator's Intention and Capacity.
Legal Periodicals: Baron, Empathy, subjectivity, and testamentary capacity. 24 San Diego LR 1043 (1987).
Annotations: Admissibility, on issue of testamentary capacity, of previously executed wills, 89 ALR2d 177.
--Effect of guardianship of adult on testamentary capacity, 89 ALR2d 1120.
--Testamentary capacity as affected by use of intoxicating liquor or drugs, 9 ALR3d 15.
--Wills: Testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 ALR3d 889.
--Solicitation of testator to make will or specified bequest as undue influence, 48 ALR3d 961.
--Partial invalidity of will: may parts of will be upheld notwithstanding failure of other parts for lack of testamentary mental capacity or undue influence, 64 ALR3d 261.
--Necessity that attesting witness realize instrument was intended as will, 71 ALR3d 877.
--Convict's capacity to make will, 84 ALR3d 479.
Footnote 57. Conservatorship of Bookasta (1989, 2nd Dist) 216 Cal App 3d 445, 265 Cal Rptr 1; Estate of Mann (1986, 1st Dist) 184 Cal App 3d 593, 229 Cal Rptr 225.
Footnote 58. Conservatorship of Bookasta (1989, 2nd Dist) 216 Cal App 3d 445, 265 Cal Rptr 1; Estate of Mann (1986, 1st Dist) 184 Cal App 3d 593, 229 Cal Rptr 225.
§ 41:132 [SUPPLEMENT] Who may make a will; testamentary capacity
-- Insert after first sentence in section:
A conservator may make a will for the conservatee if the conservator has been so authorized by a court order pursuant to Probate Code § 2580. This provision does not impair the right of a conservatee who is mentally competent to make a will from revoking or amending a will made by the conservator or making a new and inconsistent will.55.1
55.1 Prob C § 6100(b).
-- Insert following the two numbered paragraphs:
Notwithstanding these provisions, a conservator may make a will on behalf of a conservatee if the conservator has been so authorized by a court order pursuant to Probate Code § 2580.55.2
55.2 Prob C § 6100.5(c)
§ 41:133 Testamentary intent
Before an instrument can be admitted to probate as a will, it must appear from its terms, combined with the surrounding circumstances, that it was executed with testamentary intent. The basic test of testamentary intent is whether the testator intended by the particular instrument to create a revocable disposition of his or her property to take effect only on his or her death. No particular words are necessary to show testamentary intent, but the contents of alleged will must satisfactorily establish that the decedent intended that document to dispose of his or her property after death.59 However, execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud or undue influence.60
Footnote 59. Estate of MacLeod (1988, 4th Dist) 206 Cal App 3d 1235, 254 Cal Rptr 156.
Practice Aids:
Texts: Testamentary intent. 64 Cal Jur 3d, Wills §§ 23-30
Annotations: Admissibility of extrinsic evidence upon issue of testamentary intent, 21 ALR2d 319.
Footnote 60. Prob C § 6104.
§ 41:134 Requirements for formal will, generally
Except for holographic wills,61 statutory wills,62 international wills,63 or a will that is valid under the law of another state or country,64 every will must:65
1. Be in writing;
2. Be signed either by the testator or in the testator's name by some other person in the testator's presence and by the testator's direction.66
3. Be witnessed by being signed by at least two persons each of whom (a) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (b) understand that the instrument they sign is the testator's will.67
No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law. However, a will must be drafted with sufficient clarity to identify the beneficiaries and the property devised. Further, to qualify as a will, an instrument must be testamentary in character; that is, it must evidence at least an intent to appoint an executor,68 the instrument generally must evidence an intent to make a disposition of property that is to take effect at death.69 The validity of a will may be made conditional by its own terms, and will be admitted to probate or rejected, or denied effect after admission to probate, in conformity with the condition.70 A witnessed will need not be dated.71
Footnote 61. þNote: A will which does not comply with the requirements of a formal will may be valid as a holographic will. Prob C § 6111; see discussion at § 41:136.
Footnote 62. Prob C § 6113(a).
For discussion of statutory wills, see §§ 41:151 et seq.
Footnote 63. Prob C § 6113(a).
For discussion of international wills, see § 41:137.
Footnote 64. A will is valid if its execution complied with the law at the time of execution of the place where the will was executed, or complied with the law of the place where at the time of execution or at the time of death the testator was domiciled, had a place of abode, or was a national. Prob C § 6113.
Footnote 65. Prob C § 6110.
Probate Code § 6110 relaxes requirements imposed under prior statutes as to the formal requirements of a will. Law Revision Commission Comments to Prob C § 6110.
Footnote 66. þNote: A testator who cannot write may sign a will by making his or her mark. Estate of McCabe (1990, 5th Dist) 224 Cal App 3d 330, 274 Cal Rptr 43. To use a mark, the testator must be unable to write, the testator must make his or her mark on the will, the testator's name must be written near the mark, and the person who writes the name must write his or her name as witness. CC § 14; CCP § 17. Substantial compliance with these requirements is sufficient. Estate of McCabe (1990, 5th Dist) 224 Cal App 3d 330, 274 Cal Rptr 43.
Practice Aids:
Annotations: Validity of a will signed by testator with the assistance of another, 98 ALR2d 824.
--Validity of will signed by testator's mark, stamp, or symbol, or partial or abbreviated signature, 98 ALR2d 841.
Footnote 67. For further discussion, see § 41:135.
Practice Aids:
Annotations: Sufficiency of testator's acknowledgment of signature from his conduct and the surrounding circumstances, 7 ALR3d 317.
Footnote 68. Estate of Fries (1965, 2nd Dist) 238 Cal App 2d 558, 47 Cal Rptr 888 (instrument that merely nominated an executor without making any devises qualified as a will).
Footnote 69. Re Estate of Hathaway (1940) 38 Cal App 2d 526, 101 P2d 741; Estate of Geffene (1969, 2nd Dist) 1 Cal App 3d 506, 81 Cal Rptr 833.
Practice Aids:
Texts: Formal requirements of a will, 64 Cal Jur 3d, Wills §§ 107 et seq.
Legal Periodicals: The holographic will in California. 33 Hast LJ 605.
Annotations: Wills: Testator's illiteracy or lack of knowledge of language in which will is written as affecting its validity, 37 ALR3d 889.
--Effect upon testamentary nature of document of expression therein of intention to make more formal will, further disposition of property, or the like, 46 ALR3d 938.
Footnote 70. Prob C § 6105.
Footnote 71. Estate of Warner (1959, 2nd Dist) 166 Cal App 2d 677, 333 P2d 848.
§ 41:135 Attestation of formal will
Except for a holographic will,72 every will must be signed by at least two persons who were present at the same time and witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will. The witnesses must understand that the instrument they sign is the testator's will.73
þNote: Unless there is a contest of a will, evidence of execution of a will for purposes of probating it may be received by an affidavit in the original will that includes or incorporates the attestation paragraph.74
Any person generally competent to be a witness may act as a witness to a will.75 A will or any provision thereof is not invalid because a will is signed by an interested witness.76 However, unless there are at least two other subscribing witnesses to the will who are disinterested, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof. It does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.77 A witness does not become disinterested by subsequently disclaiming his or her interest under the will.78 A person nominated as executor can be a witness.79
þRecommendation: Although the Probate Code only requires two witnesses, three witnesses are preferable to allow probate of the will if a witness turns out to be interested in the will and to make it easier to find at least one witness to prove the will after death.
Footnote 72. Prob C § 6111.
Footnote 73. Prob C § 6110(c).
þNote: The witness may obtain the necessary understanding by any means. For example, the witness may know that the instrument is a will by examining the instrument itself or from the circumstances surrounding the execution of the will. Nothing in Section 6110 requires that the testator disclose the contents of the will. The signing or acknowledgment of the will must take place in the presence of the witnesses, present at the same time, but the witnesses need not sign in each other's presence. Law Revision Commission Comments to Prob C § 6110.
þRecommendation: To aid in locating witnesses when the will is probated, the attesting witnesses should include their places of residence.
For examples of attestation provisions, see §§ 41:1141 et seq.
Practice Aids:
Texts: For discussion of attestation, see 64 Cal Jur 3d, Wills §§ 118-124.
Annotations: "Attestation" or "witnessing" of will, required by statute, as including witnesses' subscription, 45 ALR2d 1365.
--Failure of attesting witness to write or state place of residence as affecting will, 55 ALR2d 1053.
--Effect of failure of attesting witness to observe testator's capacity, 69 ALR2d 662.
--Amount or value of testamentary gift as affecting application of statute invalidating will attested by beneficially interested witness or limiting the benefit to such witness, 73 ALR2d 1230.
--What constitutes the presence of the testator in the witnessing of his will, 75 ALR2d 318.
--Validity of will as affected by fact that witnesses signed before testator, 91 ALR2d 737.
--Wills: place of signature of attesting witness, 17 ALR3d 705..
--Competency, as witness attesting will, of attorney named therein as executor's attorney, 30 ALR3d 1361.
--Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 ALR5th 965.
Footnote 74. Prob C § 8220(b).
For an example of such an affidavit, see § 41:1142.
Footnote 75. Prob C § 6112(a).
Footnote 76. Prob C § 6112(b).
Footnote 77. Prob C § 6112(c).
þNote: If the witness fails to meet the burden of overcoming the presumption and the devise to that witness is not inconsistent with, and can be separated from, the remainder of the will, only the devise to the witness fails and not the entire will. Law Revision Commission Comments to Prob C § 6112.
Footnote 78. Estate of Parsons (1980, 1st Dist) 103 Cal App 3d 384, 163 Cal Rptr 70.
Footnote 79. Estate of La Mont (1952) 39 Cal 2d 566, 248 P2d 1.
Annotations: Competency, as witness attesting will, of attorney named therein as executor's attorney, 30 ALR3d 1361.
§ 41:136 Holographic wills
A will that does not comply with the requirements of a formal, witnessed will80 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.81 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.82
þNote: A holographic will need not state when it was dated, but if it does not and 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. Furthermore, 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.83
The validity of a holographic instrument is determined entirely by reference to the applicable statutes and principles of law. In determining whether a will has been executed in conformity with statutory requirements, the law favors finding the will is valid. However, even rules of liberal construction do not permit a court to ignore clear and explicit statutory requirements.84
Footnote 80. See § 41:134.
Footnote 81. Prob C § 6111(a).
Footnote 82. Prob C § 6111(c).
Footnote 83. Prob C § 6111(b).
Footnote 84. Estate of Sola (1990, 1st Dist) 225 Cal App 3d 241, 275 Cal Rptr 98, 90 CDOS 8372, reh den (Cal App 1st Dist) 90 CDOS 9164 and review den (Cal) 1991 Cal LEXIS 573.
§ 41:137 International wills
California has enacted the Uniform International Wills Act.85 The Act provides that the form of a will be valid, irrespective of the place where it is made or of the location of the assets and irrespective of the nationality, domicile, or residence of the testator, if it is made in the form of an international will that complies with the Act.86
An international will must be in writing. It need not be written by the testator. It may be written in any language, by hand or by any other means. The testator must declare in the presence of two witnesses and of a person authorized to act in connection with international wills that the document is his or her will and that he or she knows its contents. The testator need not inform the witnesses or the authorized person of the contents of the will. The testator must then sign the will, or if it is previously signed, acknowledge the signature, in the presence of the witnesses and the authorized person. If the testator is unable to sign, any other person present, including the authorized person or one of the witnesses, may sign at the direction of the testator. If so, the authorized person must make note of this on the will. The witnesses and the authorized person must then and there attest the will by signing in the presence of the testator.87
The Act states the following additional requirements:88
1. The signatures must be placed at the end of the will.
2. If the will consists of several sheets, each sheet must be numbered and be signed by the testator or, if the testator is unable to sign, by the person signing on his or her behalf or, if there is no such person, by the authorized person.
3. The date of the will must be the date of its signature by the authorized person. That date must be noted at the end of the will by the authorized person.
4. The authorized person must ask the testator whether the testator wishes to make a declaration concerning the safekeeping of the will. If so and at the express request of the testator, the place where the testator intends to have the will kept must be mentioned in the certificate of the authorized person.
Finally, the authorized person must attach to the will a certificate signed by the authorized person establishing that the requirements of this chapter for valid execution of an international will have been fulfilled. The authorized person must keep a copy of the certificate and deliver another to the testator.89 In the absence of evidence to the contrary, the certificate of the authorized person is conclusive of the formal validity of the instrument as a will under the Act. The absence or irregularity of a certificate does not affect the formal validity of a will under the Act.90
The Secretary of State has a registration center in which authorized persons may register information as to the execution of international wills. The information is confidential until the death of the maker and then becomes available to any person desiring information about any will who presents a death certificate or other satisfactory evidence of the testator's death to the center. The information is limited to the testator's name, social security or other individual identifying number established by law, if any, address, date and place of birth, and the intended place of deposit or safekeeping of the instrument pending the death of the testator. The Secretary of State, at the request of the authorized person, may cause the information it receives about execution of any international will to be transmitted to the registry system of another jurisdiction as identified by the testator, if that other system adheres to rules protecting the confidentiality of the information similar to those established in California.91
Footnote 85. Prob C §§ 6380 et seq.
Footnote 86. Prob C § 6381(a).
þNote: A will that is not valid as an international will may nevertheless be valid as a will of another kind. Prob C § 6381(b).
þCaution: The Act does not apply to a will made by two or more persons. Prob C § 6381(c).
Footnote 87. Prob C § 6382.
þNote: "Authorized person" and "person authorized to act in connection with international wills" means a person who is admitted to practice law and is in good standing as an active law practitioner in the State of California, or who, by the laws of the United States, including a member of the diplomatic and consular service of the United States designated by Foreign Service Regulations, is empowered to supervise the execution of international wills. Prob C §§ 6380(b), 6388.
Footnote 88. Prob C § 6383.
However, a will executed in compliance with Section 6382 is not invalid merely because it does not comply with these requirements. Prob C § 6383(d)
Footnote 89. Prob C § 6384.
The statute specifies the form of the certificate; see § 41:1161.
Footnote 90. Prob C § 6385.
Footnote 91. Prob C § 6389.
§ 41:138 Checklist--Will execution procedure
The following is the recommended procedure for executing a will:
1. Have the testator review and approve the will.
2. Assemble the attorney who drafted the will, the testator, and three disinterested witnesses in the same room.
3. Inform all persons present that the purpose of the gathering is to witness the execution of the will.
4. Have the testator state to all witnesses that this is his or her will and request the witnesses to act as such.
5. Have the testator execute the will in the presence of the witnesses.
6. Have each witness sign the attestation paragraph in the presence of the other witnesses and of the testator.
þRecommendation: If minor changes are necessary in the will, they can be made by interlineation before the will is executed. Each change should be initialed by the testator and the changes should be referred to in the attestation paragraph. Otherwise, the will should be redrafted.
B. STATUTORY WILL
§ 41:151 Overview
The Probate Code provides for a statutory will.92 Any individual of sound mind and over the age of 18 may execute a California statutory will.93 There is only one California statutory will.94 The California statutory will includes all of the following:95
1. The contents of the California statutory will form set out in Probate Code § 6240,96 excluding the questions and answers at the beginning of the California statutory will.97
2. By reference, the full texts of each of the following:
A. The definitions and rules of construction commencing with Probate Code § 6200.98
B. The property disposition paragraphs adopted by the testator. If no property disposition paragraph is adopted, Probate Code § 6224 applies.99
C. The mandatory paragraphs set forth in Probate Code § 6241.1
To execute a California statutory will, the testator must complete the appropriate blanks and must sign the will, each witness must observe the testator's signing and each witness must sign his or her name in the presence of the testator.2 Execution of the attestation paragraph provided in the California statutory will by two or more witnesses is sufficient to admit the will to probate in an uncontested proceeding.3
Despite the general requirements for validity of a will, a document executed on a California statutory will form is valid as a will if all of the following requirements are shown to be satisfied by clear and convincing evidence:4
1. The form is signed by the testator.
2. The court is satisfied that the testator knew and approved of the contents of the will and intended it to have testamentary effect.
3. The testamentary intent of the maker as reflected in the document is clear.
To give effect to any additions to or deletions from the California statutory will made on the face of the California statutory will form, other than those made in accordance with the instructions, there must be clear and convincing evidence showing that they would effectuate the clear intent of the testator. Otherwise, the court either may disregard an addition or deletion or may invalidate all or a portion of the California statutory will, whichever is more likely to be consistent with the intent of the testator.5
Footnote 92. Prob C §§ 6200 et seq.
Footnote 93. Prob C § 6220.
Footnote 94. Prob C § 6223(a).
Footnote 95. Prob C § 6223(b).
Footnote 96. See § 41:191.
Footnote 97. See § 41:191.
Footnote 98. See § 41:1081.
Footnote 99. Under Probate Code § 6224, if more than one property disposition paragraph appearing in paragraphs 2 or 3 of a California statutory will is selected, no gift is made. If more than one property disposition paragraph in paragraph 5 of a California statutory will form is selected, or if none is selected, the residuary estate of a testator who signs a California statutory will shall be distributed to the testator's heirs as if the testator did not make a will.
Footnote 1. See § 41:191.
Footnote 2. Prob C § 6221.
Footnote 3. Prob C § 6222.
Footnote 4. Prob C § 6226(c).
Footnote 5. Prob C § 6226(b).
§ 41:152 Definitions and rules of construction
Specific definitions and rules of construction apply to California statutory wills. Otherwise, the general law of California applies to a California statutory will.6 Thus, unless the provision or context clearly requires otherwise, the following definitions and rules apply:7
"Testator" means a person choosing to adopt a California statutory will.8
"Spouse" means the testator's husband or wife at the time the testator signs a California statutory will.9
"Executor" means both the person so designated in a California statutory will and any other person acting at any time as the executor or administrator under a California statutory will.10
"Trustee" means both the person so designated in a California statutory will and any other person acting at any time as the trustee under a California statutory will.11
"Descendants" means children, grandchildren, and their lineal descendants of all generations, with the relationship of parent and child at each generation being determined as discussed in §§ 41:411 et seq. A reference to "descendants" in the plural includes a single descendant where the context so requires.12
A reference in a California statutory will to the "Uniform Gifts to Minors Act of any state" or the "Uniform Transfers to Minors Act of any state" includes both the Uniform Gifts to Minors Act of any state and the Uniform Transfers to Minors Act of any state. A reference to a "custodian" means the person so designated in a California statutory will or any other person acting at any time as a custodian under a Uniform Gifts to Minors Act or Uniform Transfers to Minors Act.13
Masculine pronouns include the feminine, and plural and singular words include each other, where appropriate.15
If a California statutory will states that a person shall perform an act, the person is required to perform that act; if it states that a person may do an act, the person's decision to do or not to do the act must be made in the exercise of the person's fiduciary powers.16
Whenever a distribution under a California statutory will is to be made to a person's descendants, the property is divided into as many equal shares as there are then living descendants of the nearest degree of living descendants and deceased descendants of that same degree who leave descendants then living; and each living descendant of the nearest degree receives one share and the share of each deceased descendant of that same degree is divided among his or her descendants in the same manner.17
"Person" includes individuals and institutions.18
Reference to a person "if living" or who "survives me" means a person who survives the decedent by 120 hours. A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of a California statutory will, and the beneficiaries are determined accordingly. If it cannot be established by clear and convincing evidence that a person who would otherwise be a beneficiary has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state.19
Only the texts of the property disposition paragraphs and the mandatory paragraphs are considered in determining their meaning. Their titles are disregarded.20
The following Probate Code provisions apply to every California statutory will:21
1. The definition of "descendants" in Prob C § 6205.22
2. The effect of a reference to the "Uniform Gifts to Minors Act of any state," to the "Uniform Transfers to Minors Act of any state," or to a "custodian" as described in Prob C § 6206.23
3. The rules governing revocation of a will by dissolution or annulment of the testator's marriage in Prob C § 6227.24
4. The requirement in Prob C § 6211 that beneficiaries survive the decedent.25
Footnote 6. Prob C § 6243.
Footnote 7. Prob C § 6200.5
þNote: These definitions and rules do not apply if the decedent died before January 1, 1985. Prob C § 6103.
Footnote 8. Prob C § 6201.
Footnote 9. Prob C § 6202.
Footnote 10. Prob C § 6203.
Footnote 11. Prob C § 6204.
Footnote 12. Prob C § 6205.
Footnote 13. Prob C § 6206.
Footnote 14. reserved.
Footnote 15. Prob C § 6207.
Footnote 16. Prob C § 6208.
Footnote 17. Prob C § 6209.
þCaution: There are other methods of determining the share of a decedent's descendants that may be more to the testator's liking. See §§ 41:401 et seq.
Footnote 18. Prob C § 6210.
Footnote 19. Prob C § 6211.
For discussion of survival requirements, generally, see § 41:351.
Footnote 20. Prob C § 6225.
Footnote 21. Prob C § 6242(b).
Footnote 22. See § 41:1082.
Footnote 23. See § 41:484.
Footnote 24. See § 41:1222.
Footnote 25. See § 41:351.
þNote: This rule applies only to statutory wills executed after July 1, 1991. Prob C § 6242(b).
§ 41:153 Contents of statutory will
The following paragraphs of must be contained in a California statutory will form:26
Intestate Disposition.
If the testator has not made an effective disposition of the residuary estate, the executor shall distribute it to the testator's heirs at law, their identities and respective shares to be determined according to the laws of the State of California in effect on the date of the testator's death relating to intestate succession of property not acquired from a predeceased spouse.
Powers of Executor.
1. In addition to any powers now or hereafter conferred upon executors by law, including all powers granted under the Independent Administration of Estates Act, the executor shall have the power to:
A. Sell estate assets at public or private sale, for cash or on credit terms.
B. Lease estate assets without restriction as to duration.
C. Invest any surplus moneys of the estate in real or personal property, as the executor deems advisable.
2. The executor may distribute estate assets otherwise distributable to a minor beneficiary to one of the following:
A. The guardian of the minor's person or estate.
B. Any adult person with whom the minor resides and who has the care, custody, or control of the minor.
C. A custodian of the minor under the Uniform Transfers to Minors Act as designated in the California statutory will form.
The executor is free of liability and is discharged from any further accountability for distributing assets in compliance with the provisions of this paragraph.
3. On any distribution of assets from the estate, the executor shall have the discretion to partition, allot, and distribute the assets in the following manner:
A. In kind, including undivided interest in an asset or in any part of it.
B. Partly in cash and partly in kind.
C. Entirely in cash.
If a distribution is being made to more than one beneficiary, the executor shall have the discretion to distribute assets among them on a pro rata or non pro rata basis, with the assets valued as of the date of distribution.
Powers of Guardian.
A guardian of the person nominated in the California statutory will shall have the same authority with respect to the person of the ward as a parent having legal custody of a child would have. All powers wanted to guardians in this paragraph may be exercised without court authorization.
Unless otherwise provided by law, a California statutory will may include only the texts of the property disposition paragraphs and the mandatory paragraphs as they exist on the day the will is executed.27
Footnote 26. Prob C § 6241..
Footnote 27. Prob C § 6242(a).
þNote: A statutory will drafted and executed in compliance with the law in effect before January 1, 1992, is governed by the prior law. Prob C § 6242(c). Furthermore, a statutory will that is executed on a form that incorporates the mandatory paragraphs of Section 6241 referring to former Section 1120.2 is effective and is interpreted so that the trustee has the powers listed in Probate Code sections 16220 et seq. Prob C § 6242(d).
§ 41:154 Revocation and amendment of statutory will
A California statutory will can be revoked and may be amended by codicil in the same manner as other wills.28 Additionally, if after executing a California statutory will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes any disposition of property made by the will to the former spouse and any nomination of the former spouse as executor, trustee, guardian, or custodian made by the will. If any disposition or nomination is revoked solely by this statute, it is revived by the testator's remarriage to the former spouse.29 In case of revocation by dissolution or annulment:30
1. Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator.
2. Provisions nominating the former spouse as executor, trustee, guardian, or custodian are interpreted as if the former spouse failed to survive the testator.
Dissolution or annulment means any dissolution or annulment that would exclude the spouse as a surviving spouse. A decree of legal separation which does not terminate the status of husband and wife is not a dissolution or annulment.31
Footnote 28. Prob C § 6226(a).
For discussion of revocation of a will, see §§ 41:1221 et seq.; for discussion of codicils, see §§ 41:1171 et seq.
Footnote 29. Prob C § 6227(a).
Footnote 30. Prob C § 6227(b).
Footnote 31. Prob C § 6227(c).
C. DOCUMENT PREPARATION
1. GENERALLY
§ 41:161 Necessity of record of personal information
A record of personal information and business affairs of the testator and his or her spouse should be prepared before attempting to draft a will. Such a record not only facilitates drafting the will, but also facilitates administration of the estate when this becomes necessary. In making the record, the client should be asked to provide copies of all of the principal transaction documents relating to the client's marital, family, business and financial obligations. After these documents have been inspected to ascertain their effect on the testator's estate, the client should be advised to collect them in a safe, convenient place, such as a safe deposit box, where they will be readily available when the need arises.32
Footnote 32. For checklist of documents to be provided by the client, see § 41:172.
§ 41:162 Preparation of the will
It is axiomatic that great care should be taken in the preparation of a document as important as a will.33
A will must be prepared strictly in conformity with the statutory requirements.34 A will must express the intent of the testator in a manner that maximizes the net distributable estate and minimizes administration costs and taxes. It also must be drawn so that it is invulnerable to attack. For purposes of clarity and durability, the will should be typewritten on one side only of bond paper. Many attorneys provide an envelope or a backing of heavier weight paper for the client's copy of the will. No erasure marks or other marks of correction should be permitted on the final document.35
þRecommendation: To avoid the suggestion of substitution of pages: (1) each page of the will should bear the date and either the testator's initials or name in full; (2) the will should be so arranged that each page is linked by a sentence which begins on one page and ends on the next page; (3) each page should be numbered, together with the total number of pages included in the document, as for example "page 1 of 5," "page 2 of 5," and so on.
þComment: At the time the will is executed, it is suggested that a memorandum be prepared for inclusion in the testator's file, setting forth relevant data.36
þRecommendation: Counsel should discuss with the client the benefits of executing, contemporaneously with the will, a Durable Power of Attorney for Health Care.37
Footnote 33.
Practice Aids:
Texts: Advisability of employing attorney in drafting and executing will. 64 Cal Jur 3d, Wills § 342.
Annotations: Attorney's negligence in connection with estate, will, or succession matters, 55 ALR3d 977.
Footnote 34. As to formal requirements of wills, see §§ 41:134 et seq.
Footnote 35. As to interlineations on a will, see § 41:136.
Practice Aids:
Annotations: Interlineations and changes appearing on face of will, 34 ALR2d 619.
Footnote 36. See § 41:182.
Footnote 37. See Powers of Attorney (Ch 30A).
§ 41:163 Preparation of joint will or will made pursuant to contract
In most respects, a will executed pursuant to contract38 should be drafted in the same manner as any other type of will, as should a joint will.39
þCaution: A joint will, even if not made pursuant to a separate contract is subject to the same infirmaties as a will made under a contract,40 may constitute a transmutation of separate to community property,41 and cannot be valid as an international will.42
However, a will executed pursuant to a contract may be revoked by the testator; that is, the execution of a joint will or mutual will does not create a presumption of a contract not to revoke the will or wills.43 Accordingly, to establish the existence of such a contract, it is recommended that all instruments be drafted so as to include internal reference to the underlying contract and a recitation of its terms.44
þReminder: The attestation paragraph of a joint will must be in the plural to include all the testators.45
Footnote 38. As to contracts to make wills, see §§ 41:101 et seq.
Footnote 39. þNote: A "joint" will is a single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or in severalty by them. Daniels v Bridges (1954) 123 Cal App 2d 585, 267 P2d 343. A joint will is intended to be probated at the death of each testator. Estate of Lee (1964, 1st Dist) 225 Cal App 2d 578, 37 Cal Rptr 572.
Footnote 40. See § 41:102.
Footnote 41. Thompson v Boyd (1963, 1st Dist) 217 Cal App 2d 365, 32 Cal Rptr 513.
Footnote 42. See § 41:137.
Footnote 43. See § 41:103.
Footnote 44. þNote: By statute a will contract can be established only by one of the following: (1) provisions of a will stating material provisions of the contract, (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (3) a writing signed by the decedent evidencing the contract. Prob C § 150(a).
Practice Aids:
Texts: Agreement not to revoke will. 64 Cal Jur 3d, Wills §§ 210, 211.
--Incorporation by reference. 64 Cal Jur 3d, Wills §§ 147-149.
Legal Periodicals: Revocation of one mutual will as not revoking other. 2 Stan LR 431.
Footnote 45. As to attestation requirements, see § 41:135; as to a provision for attesting a joint will, see § 41:1149.
Practice Aids:
Annotations: Establishment and effect, after death of one of the makers of joint, mutual, or reciprocal will, of agreement not to revoke will, 17 ALR4th 167.
§ 41:164 Parts of will; sequence of paragraphs
A well drafted will should generally contain the following parts in the following sequence.
A. Caption, with name of testator.
B. Introductory declarations.
1. Name, age, and address of testator.
2. Declaration that testator is of sound and disposing mind, and not acting under duress, fraud, or undue influence.
3. Declaration that the present document is testator's last will and testament.
4. Declaration that testator revokes all prior wills and codicils.
5. Testator's marital status, and if married, the name of the spouse.
6. Names, birthdates, and addresses of living children.
7. Names of deceased children, and names and addresses of living issue of deceased children, if any.
8. What property is disposed of by the will.
9. Declaration, where testator married and if appropriate, confirming to spouse spouse's one-half community property interest.
10. Funeral and burial instructions.
11. Anatomical dispositions.
C. Dispositive paragraphs.
1. Specific devises of money.
2. Specific devises of personal property.
3. General devises of personal property.
4. Specific devises of real property.
5. Devises of annuities and insurance proceeds.
6. Devises of businesses and business interests.
7. Residuary devises.
8. Class gifts.
9. Designation of guardian or custodian for devises to minor beneficiaries.
10. Abatement and priority of devises.
11. Alternative or substitute devises.
12. Conditional devises.
13. Deductions from, or satisfaction of, devises and ademption of devises.
14. Devises payable from certain sources or charge on devises.
15. Time and mode of payment of devises.
16. Lapses and gifts over.
17. Miscellaneous provisions relating to devises.
D. Clauses relating to payment of debts, expenses, and taxes.
1. Payment of debts and expenses.
2. Payment of taxes.
3. Allocation of death taxes between beneficiaries.
E. Trusts.
F. Administrative paragraphs.
1. Appointment of executor, guardian, lawyer, and adviser.
2. Bond and liability of executor.
3. Powers and duties of executor.
4. Authorization for executor to act under the Independent Administration of Estates Act, if appropriate.
5. Directives and instructions to executor.
6. Compensation of executor.
G. Other provisions.
1. Declaration as to whether or not testator is exercising any power of appointment.
2. Debts and obligations owing to testator.
3. Disinheritance.
4. Will contest.
5. Incorporation by reference.
6. Definitions of terms used in will.
7. Construction of will.
8. Effect of partial invalidity.
H. Testimonium paragraph.
1. Date of execution.
2. Place of execution.
3. Declaration that execution was made in the presence of the attesting witnesses.
4. Signature of testator.
I. Attestation paragraph.
1. Number of pages of will.
2. Declaration that testator declared document to be his or her last will in presence of witnesses.
3. Declaration that testator signed will in presence of witnesses.
4. Declaration that witnesses signed will in the presence of testator and in the presence of each other.
5. Signature of all witnesses.
6. Affidavit of witnesses as to execution of will.
§ 41:165 Use of forms
Forms and provisions contained in this chapter have been selected for their representative character and usefulness in carrying out wishes that are common to many testators. They also reflect tax considerations of frequent concern to testators and their counsel. However, these forms should be used selectively, and only after careful examination of their legal effect and the degree to which they express the desires of the individual testator.
§ 41:166 Copies of will
Generally, only one signed copy of a will should be made. Making duplicate copies is not usually recommended. However, it is advisable for the attorney who drafts a will to keep an unsigned copy of the will with the name of the testator typed on the signature line.46
Footnote 46. þComment: A will may be executed in duplicate--that is, in the form of two instruments, each of which has identical provisions. This procedure is usually resorted to where the testator wishes to insure the execution of his or her dispositions should one of the papers on which they are written be accidentally destroyed. Estate of Janes (1941) 18 Cal 2d 512, 116 P2d 438. However, the Probate Code provides that a will executed in duplicate is revoked if one of the duplicates is burned, torn, cancelled, defaced, obliterated, or destroyed under described circumstances. Prob C § 6121.
Practice Aids:
Texts: Duplicate or copy of will. 64 Cal Jur 3d, Wills § 109.
Annotations: Destruction or cancelation of one copy of will executed in duplicate, as revocation of other copy, 17 ALR2d 805.
§ 41:167 Possession or custody of will
A will is an important document and should be kept in a safe place, preferably in a safe deposit box or in a fireproof safe of either the testator, the testator's attorney, or the testator's executor. Unless a petition for probate is filed earlier, the custodian of a will must, within 30 days after having knowledge that the maker is dead, both deliver the will to the clerk of the superior court of the county in which the decedent's estate may be administered and mail a copy of the will to the person named in the will as executor if the person's whereabouts are known to the custodian, or if not to a person named in the will as a beneficiary if the person's whereabouts are known to the custodian. Failure to do so makes the person responsible for all damages sustained by anyone thereby injured.47
A person who is competent to make a will may select its custodian and cause it to remain in the custodian's hands until called for or until death makes it necessary for the custodian to deliver the will to the court or to the executor named in the will. The person to whom a testator entrusts a will for custody has the duty of a trustee. Such person cannot, except at the request or with the consent of the testator, in the lifetime of the testator, deliver the will or disclose its contents to a third person. Where the testator has been adjudged incompetent and placed under conservatorship or guardianship, the conservator or guardian has no right to require the custodian to surrender or deliver possession of the testator's will entrusted to the custodian by the testator before the declaration of incompetency.48
Footnote 47. Prob C § 8200.
Footnote 48. Mastick v Superior Court of San Francisco (1892) 94 Cal 347, 29 P 869.
Practice Aids:
Texts: Custody of will in testator's lifetime. 64 Cal Jur 3d, Wills § 6.
2. CHECKLISTS
§ 41:171 Information to be obtained from client in preparing a will
þChecklist: of information to be obtained by counsel in preparing client's will:
1. Client's name, including any former names (particularly where client's name has changed because of marriage), and any names in which accounts or properties are held.
2. Client's home and business addresses and telephone numbers.
3. Date and place of client's birth.
4. Date client came to California, if not native born. Length of present residence in state. Length of residence in county.
5. Client's marital history, including:
a. Name and address of present spouse.
b. Date and place of present marriage.
c. Location of present marriage certificate.
d. Names and addresses of previous spouses, if any.
e. Dates and places of previous marriages.
f. Previous marital history of present spouse.
g. How previous marriages of client and spouse were terminated.
h. If client divorced, whether a property settlement agreement exists. If so, its provisions.
i. Provisions of prenuptial or postnuptual agreement, if any.
j. Provisions of any waiver of spousal rights.
6. Data on children of client, with information pertaining to:
a. Each child of present marriage, including
(1) Name;
(2) Date of birth;
(3) Sex;
(4) Address;
(5) Any issue of the child.
b. Each child of a previous marriage, including
(1) Name;
(2) Date of birth;
(3) Sex;
(4) Address;
(5) Any issue of the child.
c. Each deceased child, including
(1) Name;
(2) Names and addresses of his or her issue or next of kin.
(3) Information regarding the date and place of death.
d. Each spouse of a child, or of a deceased child, and each deceased spouse of a child, including
(1) Name;
(2) Address, if applicable.
e. Each grandchild, including
(1) Name;
(2) Indication of which child of client is his or her parent;
(3) Date of birth;
(4) Sex;
(5) Address;
(6) Any issue of the grandchild.
7. Family history pertaining to:
a. Parents of client, including, for each
(1) Name;
(2) Date of birth;
(3) Address; or
(4) Fact that parent is deceased.
b. Parents of client's spouse, including for each
(1) Name;
(2) Date of birth;
(3) Address; or
(4) Fact that parent is deceased.
c. Brothers and sisters of client, and their children, including for each
(1) Name;
(2) Date of birth;
(3) Sex;
(4) Address.
d. Brothers and sisters of client's spouse, and their children, including for each
(1) Name;
(2) Date of birth;
(3) Sex;
(4) Address.
8. Other vital personal statistics, including:
a. Names and addresses of other relatives of client and spouse whom the will probably affects.
b. Social security numbers of client and spouse.
c. Occupations of client and spouse.
d. Record of client's military service.
e. Income of client, from all sources.
f. Income, if any, of client's spouse, from all sources.
9. Location of safety deposit box, if any.
10. Location and provisions of previous wills and codicils, if any.
11. Information on client's estate, including:
a. Location, description, and value of real property, residential, rental, and business.
b. Location and amount of cash, including bank deposits, safety deposit boxes, etc.
c. Location and amount of savings bank and savings and loan accounts.
d. Type and value of securities, including trust deeds, stocks, and bonds.
e. Personal effects, including jewelry, furs, etc.
f. Household goods.
g. Motor vehicles, including those for personal use and those used in business.
h. Insurance and other death and retirement benefits, including:
(1) Life insurance policies;
(2) Annuity policies;
(3) Health and accident policies with death benefits;
(4) Death benefits, or retirement amounts, payable from place of employment, fraternal organization, etc;
(5) Insurance or other death and retirement benefits held by spouse.
i. Interests in business, such as sole proprietorship or partnership.
j. Other rights, such as royalties from patents or copyrights, mineral rights, etc.
k. Expectancies, such as expected inheritances, gifts, etc.
12. Information on client's liabilities, including:
a. Debts owed, installment or otherwise, secured or unsecured.
b. Liability on trust deeds or mortgages.
c. Other contingent liabilities, including pending lawsuits, etc.
13. Gifts client has made or plans to make, either outright, or as trusts, and gifts that will act as ademption by satisfaction.
14. Kind of will client desires.
a. Simple will.
b. Trust will.
c. Mutual will.
d. Joint will.
15. Provisions to be included in will, such as:
a. Funeral and burial directions.
(1) Cremation;
(2) Donation of body or part to science;
(3) Type of funeral service;
(4) Identification of cemetery deed and lot;
(5) Tombstone and perpetual care trust or directions.
(6) Anatomical gifts
b. Devises.
(1) Marital deduction gifts.
(2) Gifts in trust, with trust provisions.
(3) Gifts of real property.
(a) Residence, or right to reside in home for life.
(b) Income or business property.
(4) Gifts of personal property.
(a) Household furniture.
(b) Heirlooms.
(c) Jewelry or clothing.
(d) Other items of personal property.
(5) Gifts of businesses and business interests.
(6) Gifts of money.
(7) Gift of residue of estate.
(8) Gifts to charitable organizations.
c. Provisions for guardianship of minor children or incompetent dependents or custodianship under the Uniform Transfers to Minors Act.
d. Testamentary trust.
e. Persons to be appointed executor, trustee, custodian, or guardian and bond for such persons.
16. Status of client's property subject to marital interest.
a. Community.
(1) Post 1984.
(2) 1927-1984.
(3) 1923-1927.
(4) Pre 1923.
b. Quasi-community.
c. Separate.
d. Joint tenancy.
e. Tenancy in common.
17. Status of spouse's marital property.
Practice Notes:
Legal Periodicals: A Postmortem Estate Planning Checklist (Part 1). 30 The Practical Lawyer 11.
§ 41:172 Documents to be requested from client for inspection by counsel
1. Previous will, if any, including any codicils.
2. Antenuptial or postmarital agreement or agreement waiving spouse's rights.
3. Documents related to any prior dissolution or separation.
a. Final judgment of dissolution of marriage.
b. Settlement agreement or award.
4. Insurance.
a. Policies on life of testator.
b. Policies under which testator is beneficiary.
5. Real property.
a. Deeds.
b. Mortgages.
c. Leases.
d. Options.
6. Personal property.
a. Documents concerning securities and other investments.
b. Certificates of deposit and other term deposits.
c. Security agreements and other documents relating to pledged property.
d. Leases.
e. Certificates of ownership of motor vehicles and other property such as boats or airplanes.
f. Documents inventorying client's tangible personal property, such as jewelry, furniture, art objects, and the like.
7. Business documents.
a. Employment contract.
b. Stock in closely held corporation.
c. Partnership, joint venture, and other similar agreements.
d. Buy-sell agreement.
e. Stock options.
f. Pension plan.
g. Profit-sharing plan.
h. Deferred compensation agreement.
i. Social security benefits.
j. Patents; copyrights.
k. Guaranties and other obligations in connection with business enterprise.
8. Trust instruments under which client is trustor.
9. Documents related to previous gifts, and documents accepting gift as ademption by satisfaction.
10. Powers of appointment.
11. Documents related to property held jointly.
12. Documents related to contingent benefits, if available.
a. Insurance policies under which testator is beneficiary.
b. Trust indentures under which testator is beneficiary.
c. Wills under which testator is beneficiary.
§ 41:173 Matters to be considered in drafting a will
þChecklist: of items to be considered in drafting a will:
1. Caption, stating that the will is the testator's, and stating his or her full name.
2. Introductory paragraph.
a. Testator's full name or names.
b. Testator's age.
c. Testator's address, including county and state.
d. Declaration that the instrument is testator's will.
3. Clause revoking prior wills.
4. Declaration of property included in will.
5. Declaration relating to marital status, and name of spouse, if any.
6. Declaration relating to children, parents, and other relatives.
7. Instructions as to disposition of body, such as gifts of parts of body to science.
8. Directions for funeral and burial arrangements.
9. Directions for care of burial plot.
10. Statement confirming to spouse spouse's one-half community property interest in all assets passing under or outside will and statement that will disposes of all separate property, and testator's interest in quasi-community and community property interests or that will disposes of both spouse's and testator's community and quasi-community property.
11. Devises of real and personal property.
12. Residuary paragraph.
13. Order of abatement of gifts.
14. Advancements, ademption, and substitutions.
15. Creation of life estates.
16. Disinheritance paragraph.
a. Heir.
b. Pretermitted heir or spouse.
17. No-contest paragraph.
18. Clause relating to simultaneous death of testator and beneficiary, such as paragraph providing presumption that spouse survived if death occurs simultaneously.
19. Payment of debts and expenses.
20. Payment and apportionment of taxes.
21. Appointment and enumeration of powers and duties of executor, including authority of person appointed as executor to serve under the Independent Administration of Estates Act, and, if desired, waiver of bond.
22. Appointment of guardian or custodian for minor child or conservator for incompetent.
23. Creation of powers of appointment.
a. General power.
b. Special power.
(1) Exclusive special power.
(2) Nonexclusive special power.
c. Authorization for release of power.
24. Statement of election to exercise, or denial of exercise of, testamentary power of appointment.
25. Creation of testamentary trust.
26. "Pour-over" provision (to add to inter vivos trust).
27. Incorporation by reference.
28. Definitions of terms used in will, such as "children," "issue," and "heirs."
29. Construction of paragraphs of will.
30. Conditions and contingencies of will.
31. Effect of partial invalidity of will.
32. Date and place of execution.
33. Signature by testator or by person authorized by testator.
34. Attestation paragraph, signed and verified by at least two witnesses.
Tax Notes:
Item 8
Funeral expenses, estate administration expenses, and expenses of the decedent's last illness are deductible from the taxable estate of a decedent. 26 USCS § 2053(a).
Legal Periodicals: The estate tax deduction for administration expenses--Circuits in conflict. 1979 Tax Adviser 86.
Item 10
For purposes of the federal estate tax, the value of the taxable estate is determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to the surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate. 26 USCS § 2656(a).
þComment: The "marital deduction" is one of the most important features of the federal estate tax law. It allows the estate of a deceased U.S. citizen or resident to deduct the value of property passing to his or her surviving spouse from the value of the gross estate. The marital deduction in effect permits a decedent to transfer property to the surviving spouse free of federal estate tax. For additional discussion, see § 41:45.
Item 11
Generally, devises under a will, or distributions of property of a decedent in the absence of a will, come to the recipient completely free of income tax. 26 USCS § 102.
Item 18
þComment: The purpose of a provision for presumption that the spouse survived if that spouse's death occurred simultaneously with the death of the other spouse, is to overcome the presumption of survival of the testator under the simultaneous death statute. See Prob C §§ 220 et seq. This preserves the marital deduction for federal estate tax purposes. 26 USCS § 2056(b)(3); 26 CFR 20.2056(b)-3.
Item 20
The federal estate tax is imposed on the transfer of an individual's property at death and on certain other transfers deemed to be equivalent of transfers at death. 26 USCS § 2001.
þRecommendation: It is important that the testator provides in the will who is liable for the taxes to assure the maximum marital deduction.
Texts: For discussion of federal estate taxes in general, §§ 41:11 et seq.; for discussion of allocation of taxes between beneficiaries, see §§ 41:931 et seq.
Item 24
For purposes of the federal estate tax, the value of the gross estate of a decedent includes the value of all property with respect to which the decedent has at the time of death a general power of appointment created after October 21, 1942, or with respect to which the decedent has at any time exercised or released such a power of appointment by a disposition which is of such nature that if it were a transfer of property owned by the decedent, such property would be includible in the decedent's gross estate under 26 USCS §§ 2035-2038, inclusive. 26 USCS § 2041; for taxation of powers of appointment, generally, see § 41:30; for powers of appointment, generally, see § 41:571 et seq.
Property over which the decedent held a power of appointment is not includable in the decedent's estate unless the power was "general." 26 USCS § 2041(a). The term "general power of appointment" means a power which is exercisable in favor of the decedent, decedent's estate, decedent's creditors, or the creditors of decedent's estate. 26 USCS § 2041(b)(1).
The lapse of a power of appointment during the life of the individual possessing the power is considered a release of the power. 26 USCS § 2041(b)(2).
Item 25
Trusts which give to the surviving spouse the equivalent of complete ownership can qualify for the marital deduction. 26 USCS § 2056(b)(5). For testamentary trusts, generally, see Trusts (Ch 42).
Practice Notes:
Item 2
þRecommendation: It is desirable to recite the testator's full name, including variations, such as the abbreviation of one or more names with an initial. Any other names by which the testator is known should also be included in the introductory provision, especially those in which the testator holds any form of property or conducts business transactions. A female testator who is married, widowed, or divorced, should also include her maiden name, and any former married names.
Item 3
þRecommendation: A revocation of a will should indicate whether it is intended also to work a revocation of the codicils thereto since the term "will" includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will. Prob C § 88. For discussion of revocation, generally, see §§ 41:1221 et seq.
Practice Aids:
Annotations: Revocation of witnessed will by holographic will or codicil, where statute requires revocation by instrument of equal formality as will, 49 ALR3d 1223.
--Testator's failure to make new will, following loss of original will by fire, theft, or similar casualty, as constituting revocation of original will, 61 ALR3d 958.
--Marriage of testator or birth of testator's child as revoking will previously made in exercise of power of appointment, 92 ALR3d 1244.
--Validity of statutes or rules providing that marriage or remarriage of woman operates as revocation of will previously executed by her, 99 ALR3d 1020.
--Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 ALR4th 117.
Item 6
For discussion of the factors establishing a parent-child relationship, see §§ 41:411 et seq.
Annotations: Adoption as precluding testamentary gift under natural relative's will, 71 ALR4th 374.
Item 7
For discussion of anatomical gifts, see § 41:331 and Gifts (Ch 40).
Practice Aids:
Annotations: Validity and effect of testamentary direction as to disposition of testator's body, 7 ALR3d 747.
--Enforcement of preference expressed by decedent as to disposition of his body after death, 54 ALR3d 1037.
Item 8
For discussion of funeral and burial arrangements, see § 41:311.
Item 12
For discussion of residuary devises, see §§ 41:791 et seq.
Practice Aids:
Texts: For discussion of residuary gifts, see 64 Cal Jur 3d, Wills §§ 399-404.
Annotations: Devolution of lapsed portion of residuary estate, 36 ALR2d 1117.
--Devolution of property to testator's heirs or next of kin, or to his residuary devisees or legatees, where testamentary charitable trust which became operative later fails, 62 ALR2d 763.
--Effect of residuary clause to pass property acquired by testator's estate after his death, 39 ALR3d 1390.
--Inclusion of funds in savings bank trust (Totten Trust) in determining surviving spouse's interest in decedent's estate, 64 ALR3d 187.
Item 13
For discussion of abatement, see §§ 41:821 et seq.
Item 14
For discussion of advancements, ademption and substitutions, see §§ 41:881 et seq.
Item 15
Practice Aids:
Texts: Creation and termination of life estates. 30 Cal Jur 3d, Estates §§ 14-22.
Item 16
For discussion of disinheritance provisions and omitted heirs or spouse, see §§ 41:441 et seq.
Practice Aids:
Texts: For discussion of the conditions of, restrictions upon, and circumstances affecting the omission of a child or descendant from a testator's will, see 64 Cal Jur 3d, Wills §§ 181-189.
Proof of Facts: Intentional omission of child from will. 6 Am Jur Proof of Facts 2d 95.
Annotations: Admissibility of extrinsic evidence to show testator's intention as to omission of provision for child, 88 ALR2d 616.
--Effect of will provision cutting off heir or next of kin, or restricting him to provision made, to exclude him from distribution of intestate property, 100 ALR2d 325.
--Testamentary gift to children as including stepchild, 28 ALR3d 1307.
--Conflict of laws as to pretermission of heirs, 99 ALR3d 724.
Item 17
For discussion of no contest provisions, see §§ 41:551 et seq.
Practice Aids:
Texts: "No-contest" paragraphs in wills, see 64 Cal Jur 3d, Wills § 364.
Annotations: Liability for malicious prosecution based on contest or caveat to will, 35 ALR3d 651.
--Right of heir's assignee to contest will, 39 ALR3d 696.
--Modern status: inheritability or descendability of right to contest will, 11 ALR4th 907.
Item 21
For discussion of the appointment and powers of executors, see §§ 41:961 et seq.
Item 22
For discussion of the appointment and powers of guardians and custodians, see §§ 41:481 et seq.
Practice Aids:
Texts: For discussion of testamentary selection of minor's guardian, see 35 Cal Jur 3d, Guardianship and Conservatorship §§ 35-41.
Annotations: Function, power, and discretion of court where there is testamentary appointment of guardian of minor, 67 ALR2d 803.
--Who may make election for incompetent to take under or against will, 21 ALR3d 320.
--Effect of testamentary gift to child conditioned upon specified arrangements for parental control, 11 ALR4th 940.
Item 23
For discussion of powers of appointment, generally, see §§ 41:571 et seq.
Practice Aids:
Texts: For discussion of power of appointment, see 50 Cal Jur 3d, Powers §§ 1 et seq.
Proof of Facts: Testator's intent to exercise power of appointment. 10 Am Jur Proof of Facts 2d 669.
Annotations: Power of appointment as exclusive or nonexclusive--modern views, 69 ALR2d 1285.
--Powers of appointment: revocation or amendment of exercise of power to appoint future interest, after exercise by inter vivos instrument, 60 ALR3d 143.
Item 24
þRecommendation: To avoid any possible misconstruction of a testator's intention not to exercise the power of appointment, the exercise thereof should be specifically negated in the will.
For discussion of powers of appointment, generally, see §§ 41:571 et seq.
Practice Aids:
Proof of Facts: Testator's intent to exercise power of appointment. 10 Am Jur Proof of Facts 2d 669.
Annotations: Disposition of all or residue of testator's property, without referring to power of appointment, as constituting sufficient manifestation of intention to exercise power, in absence of statute, 15 ALR3d 346.
--Effect of statute upon determination whether disposition of all or residue of testator's property, without referring to power of appointment, sufficiently manifests intention to exercise power, 16 ALR3d 911.
--Nontestamentary transaction, pecuniary bequest, or specific devise or bequest not referring to power as constituting sufficient manifestation of intention to exercise power of disposition over property, 16 ALR3d 951.
--Exercise by will of trustor's reserved power to revoke or modify inter vivos trust, 81 ALR3d 959.
Item 25
þObservation: A trust is usually the desirable method for transferring significant amounts of property which require expert management (business or rental property) or good judgment and investment ability (stocks, bonds, etc.).
For checklist and forms concerning testamentary trusts, see Trusts (Ch 42).
Item 29
For a general discussion of construction of wills, see § 41:1061.
Item 30
Practice Aids:
Every will must be in writing, signed by the testator or in testator's name by some other person in testator's presence and at testator's direction. Prob C § 6110.
For discussion of execution and signing of will, see § 41:134.
For discussion of attestation of will, see § 41:135.
D. FORMS
1. WILL PREPARATION AND ANCILLARY FORMS
§ 41:181 Record of personal and business information
Record of Personal and Business Information of __________[testator].
Date: __________ [date]
Prepared by __________
Information supplied by __________
A. General Information--Testator
1. Name.
a. Full name: __________.
b. Other names used: __________.
2. Address.
a. Present residence address: __________.
b. Permanent address, if different: __________ .
c. Length of residence in California __________;
in __________ County __________.
d. Business address: __________.
3. Telephone Numbers.
a. Residence: __________.
b. Business: __________.
c. Fax number: __________.
4. Social Security Number: __________.
5. Birth.
a. Date of birth: __________[date].
b. Place of birth: __________ [city, state or province, country].
6. Citizenship.
a. Citizen of United States? Yes _____. No _____ .
b. If citizen of United States: By birth _____ naturalized _____.
c. If naturalized, specify:
(1) Date of naturalization (final papers): __________.
(2) Place of naturalization: __________.
(3) Naturalization certificate No. _____.
(4) Location of naturalization certificate: __________.
d. If not citizen of United States, citizen of what country? __________
e. Lawful permanent resident of United States? Yes _____. No _____.
f. Alien Certificate of Registration No. _____.
7. Health.
a. Physical __________.
b. Mental __________.
8. Military Status.
a. United States Military Service? __________
b. Military Service in Foreign Countries? __________ If yes, what country? __________.
c. If either answer is yes, specify:
(1) Military ID number: _____.
(2) Branch of service: __________.
(3) Length of service: __________.
(4) Discharge date, if any: _____.
(5) Location of Discharge Papers: __________.
B. General Information--Spouse or Domestic Partner (if any)
1. Name.
a. Full name: __________.
b. Other names: __________.
2. Address.
a. Present residence address: __________.
b. Permanent address, if different: __________.
c. Length of residence in California __________; in __________ County __________.
d. Business address: __________.
3. Telephone Numbers.
a. Residence: __________.
b. Business: __________.
c. Fax number: __________.
4. Social Security Number: __________.
5. Birth.
a. Date of birth: __________ [date].
b. Place of birth: __________ [city, state or province, country].
6. Citizenship.
a. Citizen of United States? Yes _____. No _____.
b. If citizen of United States: By birth _____ Naturalized _____.
c. I naturalized, specify:
(1) Date of naturalization (final papers): __________ [date].
(2) Place of naturalization: __________.
(3) Naturalization certificate No. _____.
(4) Location of naturalization certificate: __________.
d. If not citizen of United States, citizen of what country? __________.
e. Lawful permanent resident of United States? Yes _____. No _____.
f. Alien Certificate of Registration No. _____.
7. Health.
a. Physical __________.
b. Mental __________.
8. Employment.
a. Business or profession: __________.
b. Employer's name: __________.
c. Employer's address: __________.
9. Prior Wills.
a. Does a prior will exist? Yes _____. No _____.
b. If spouse has a prior will, was will executed before or after marriage to testator? Before _____. After _____.
c. Location of will: __________.
10. Military Status (spouse only).
a. United States Military Service? __________
b. Military Service in Foreign Countries? __________ If yes, what country? __________.
c. If either answer is yes, specify:
(1) Military ID number: _____.
(2) Branch of service: __________.
(3) Length of service: __________.
(4) Discharge date, if any: _____.
(5) Location of Discharge Papers: __________.
11. Adoptive Status (domestic partner only).
a. Has testator adopted partner? __________.
b. Has partner adopted testator? __________.
12. Spouse or Domestic Partner's Approximate Net Worth: __________.
C. Testator's Marital Status
1. Current Status.
a. Married: _____.
b. Divorced or separated: _____.
c. Widowed: _____.
d. Never married: _____.
2. If Currently Married:
a. Date of marriage: __________.
b. Place of marriage: __________.
c. Location of marriage certificate: __________.
d. Is testator in the process of dissolving or annulling this marriage? __________.
e. Does testator currently reside with spouse? __________. If not, on what date did parties separate: __________.
f. Have testator and spouse resided outside California?
(1) If so, list each state in which testator resided and the dates of residence: __________.
g. Was spouse previously married? __________.
h. If spouse was previously married, how was marriage terminated? __________.
(1) If marriage was terminated by divorce, dissolution of marriage, or annulment, specify details, including:
(a) Name of testator's spouse's prior spouse: __________.
(b) Address of spouse's prior spouse: __________.
(c) Date and place of prior marriage: __________.
(d) Date of termination of prior marriage: __________.
(e) Length of prior marriage: __________.
(f) Court which terminated prior marriage: __________; case number: __________.
(g) Specify details of agreement or judgment dividing property: __________.
(h) Specify details of agreement or orders modifying property division: __________.
(2) If prior marriage was terminated by death, specify:
(a) Date of death: __________.
(b) Place of death: __________.
(c) Death certificate? Yes _____. No _____.
(d) If yes, location of death certificate: __________.
i. Is testator party to any prenuptial agreement? Yes _____. No _____.
(1) Location of agreement: __________.
(2) General contents of agreement: __________.
j. Is testator party to any postmarital property agreement? Yes _____. No _____.
(1) Location of agreement: __________.
(2) General contents of agreement: __________.
k. Has testator or spouse executed a waiver of rights of surviving spouse under Section 140 of the Probate Code? Yes _____, No _____.
(1) Location of waiver: __________.
(2) General contents of waiver: __________.
(3) If no, is such waiver contemplated? Yes _____, No _____.
(4) Rights to be waived: __________.
3. If not currently married:
a. Does testator plan to marry? If yes, name of prospective spouse: __________.
b. Does testator have nonmarital domestic relationship? If yes, state:
(1) When domestic relationship commenced. __________.
(2) Whether testator and partner resided outside California?
(3) If so, list each state in which they resided and the dates of their residence: __________.
(4) Whether testator and partner have an agreement concerning their property rights or obligations? __________ If so, briefly describe the agreement: __________.
(5) Whether testator and partner filed any certificate or acknowledgment of their relationship with any government agency? __________ If so, describe the agency and the date of the filing.
4. If testator was previously married and marriage was terminated by divorce, dissolution of marriage, or annulment, specify the following details for each prior marriage:
a. Name of prior spouse: __________.
b. Address: __________.
c. Date and place of prior marriage: __________.
d. Name of state and court in which decree or judgment of divorce, dissolution, or annulment was entered: __________.
e. Date and type of decree or judgment: __________ [date]; __________ [divorce, dissolution or anullment].
f. Location of testator's copy of decree or judgment: __________.
g. General contents of decree or judgment with respect to support and property rights: __________.
h. Location of any property settlement agreement or alimony or support agreement or trust: __________.
i. General contents of any property settlement agreement or alimony or support agreement or trust: __________.
j. Specify details of agreement or orders modifying property division: __________.
5. If Testator Legally Separated:
a. Name of spouse: __________.
b. Address: __________.
c. Date and place of marriage: __________.
d. Name of state and court in which separation decree was entered: __________.
e. Date of decree: __________ [date].
f. Location of testator's copy of decree: __________.
g. General contents of decree with respect to support and property rights: __________.
h. Location of any separation agreement: __________.
i. General contents of any separation agreement with respect to support and property rights: __________.
j Specify details of agreement or orders modifying property division: __________.
6. If Testator Widowed:
a. Name of spouse: __________.
b. Date of marriage: __________.
c. Date of spouse's death: __________ [date].
d. Place of spouse's death: __________.
e. Spouse died: testate _____. intestate _____.
f. Has spouse's estate been administered? Yes _____. No _____.
g. Name of state and court in which spouse's estate was or is being administered: __________; Case No. _____.
h. If estate is still being administered, general status of administration: __________.
i. Testator's interest (as heir, devisee creditor, etc.) in spouse's estate: __________.
j. Death certificate? Yes _____. No _____.
k. If yes, location of death certificate: __________.
D. Relatives.
1. Children? __________
If testator has children, for each child obtain the following information:
a. Name: __________.
b. Address: __________.
c. Name of other parent and relationship of other parent to testator: __________.
d. Birthdate: __________.
e. Place of birth: __________.
f. Citizenship: __________.
g. Describe any special needs of child, such as those caused by physical or mental disabilities: __________.
h. Child's marital status: __________.
i. Whether child is living: __________.
j. Whether child has been adopted by testator: __________.
k. Whether any person other than as named above may claim a parent-child relationship with the child: __________.
2. Grandchildren? __________
If testator has grandchildren, for each grandchild obtain the following information:
a. Name: __________.
b. Address: __________.
c. Age: __________.
d. Parents' names: __________ and __________.
e. Whether grandchild is living: __________.
f. Describe any special needs of grandchild, such as those caused by physical or mental disabilities: __________.
g. Whether grandchild has any issue: __________ If so, obtain the above information for each issue: __________.
3. Parents? __________
If testator or testator's spouse or domestic partner has living parents, for each parent obtain the following information:
a. Name: __________.
b. Address: __________.
c. Describe any special needs of parent, such as those caused by physical or mental disabilities: __________.
4. Siblings? __________
If testator or testator's spouse or domestic partner has siblings, for each sibling obtain the following information:
a. Name: __________.
b. Address: __________.
c. Age: _____.
d. Living or deceased: __________.
e. Names and ages of children or issue: __________.
E. Employment and Employment Benefits.
1. If employed (including self-employment):
a. Name of employer: __________.
b. Address: __________.
c. Telephone No.: __________.
d. Date employed: __________
e. Position held: __________
f. General contents of employment agreement, if any: __________.
g. Salary: __________
h. Employment benefits [specify provider, amount, beneficiary, as appropriate]:
(1) Life insurance: __________.
(2) Pension: __________.
(3) Profit sharing: __________.
(4) Stock options: __________.
(5) ESOP (Employee Stock Ownership Plan): __________.
(6) 401(k) or Keogh plans: __________.
(7) Deferred compensation or bonus plans: __________.
(8) Other benefits: __________.
2. If Retired:
a. Date of retirement: __________.
b. Type of pension plans or deferred benefit plans paying testator benefits: __________.
c. Details of plan: __________.
F. Real Property
For each parcel of real property in which testator has an interest, obtain the following information:
1. Address or location: __________.
2. Nature of your interest in the property: __________.
3. Identify other persons who have an interest in the property by name and address: __________.
4. Manner in which title is held: __________.
5. Purchase price: __________.
6. Date of purchase: __________.
7. Describe the nature and amount of any encumbrances against the testator's interest: __________.
8. Location of deed and title insurance policy: __________.
9. Characterization of property (separate, community, quasi-community): __________.
10. Approximate market value: $_____.
G. Accounts with Banks, Savings and Loans, Credit Unions and Money Market Funds:
For each account in which testator has an interest, obtain the following information:
1. Name and address of institution holding account: __________.
2. Account number: __________.
3. Type of account: __________.
4. Other persons who have right to withdraw from the account: __________.
5. Present balance: $_____.
6. Source of funds in account (separate, community, quasi-community): __________.
H. Insurance
For each policy of life insurance in which testator has an interest, obtain the following information:
1. Name and address of insurer: __________.
2. Face amount of policy: $_____.
3. Policy number: __________.
4. Type of policy (whole life, term, etc.): __________.
5. Life insured: __________.
6. Owner of policy: __________.
7. Beneficiary of policy: __________.
8. Source of funds used to pay premiums (separate, community, quasi-community): __________.
9. Amounts borrowed against policy, if any: $_____.
I. Tangible Personal Property
1. Furniture and Furnishings; Jewelry; Antiques; Paintings; Collectible Property; Household Goods and Appliances; and Other Tangible Personal Property:
For each item, obtain the following information:
a. Description: __________.
b. Approximate value: __________.
c. Identity of other owners if any: __________.
d. Characterization of property (separate, community, quasi-community): __________.
2. Motor Vehicles; Trailers; Boats; Aircraft:
For each item, obtain the following information:
a. Make, model and year: __________.
b. Approximate value: __________.
c. Title as registered: __________.
d. Characterization of property (separate, community, quasi-community): __________.
J. Securities
For each security in which testator has an interest, obtain the following information (securities include common and preferred corporate stock, corporate and municipal bonds, limited partnership interests, mutual fund shares, and options and futures contracts in stocks, bonds and commodities):
1. Issuer of security: __________.
2. Type of security: __________.
3. Number of shares or principal amount: __________.
4. Date acquired: __________.
5. Price paid or manner in which acquired: __________.
6 Characterization (as separate, community or quasi-community): __________.
K. Business Interests of Testator
For each business in which testator owns a substantial interest, obtain the following information:
1. Name of business: __________.
2. Nature and location of business: __________.
3. Form of organization: __________.
4. Nature and proportion of testator's interest in business: __________.
5. Net worth of testator's interest: __________.
6. Character of testator's interest (separate, community or quasi-community): __________.
7. Existence of any buy-sell or other agreements that would affect testator's interest in the business after death: __________.
L. Patents, Copyrights, Franchises, Mineral Rights, etc.
For each item in which testator owns a substantial interest, obtain the following information:
1. Description: __________.
2. Approximate value: __________.
3. Identity of other owners if any: __________.
4. Characterization of property (separate, community, quasi-community): __________.
M. Testator's Interest in Trusts and Estates (including trusts created by testator):
For each trust or estate in which testator has an interest, obtain the following information:
1. Name or trustor or decedent: __________.
2. Name of trustee or personal representative: __________.
3. Value of testator's interest in the trust: __________.
N. Debts Owed to Testator:
For each debt owed to testator, obtain the following information:
1. Description of debt: __________.
2. Evidence of debt: __________
3. Names and addresses of persons obligated on debt: __________
4. Current balance due: $_____.
5. Description of security for debt, if any: __________.
6. Characterization of debt (separate, community, or quasi-community): __________.
O. Debts of Testator:
For each debt testator owes, obtain the following information:
1. Description of debt: __________.
2. Evidence of debt: __________
3. Names and addresses of creditors: __________
4. Current balance due: $_____.
5. Description of security for debt, if any: __________.
6. Characterization of debt (separate, community, or quasi-community): __________.
P. Pending Litigation:
For each lawsuit in which testator is a party, obtain the following information:
1. Nature of dispute: __________.
2. Amount in controversy: __________.
3. Testator's interest in litigation: __________.
4. Current status of litigation: __________.
5. Characterization of interest (separate, community, quasi-community): __________.
Q. Safe Deposit Boxes
If testator has a safe deposit box, obtain the following information:
1. Name and address of company where box is located: __________.
2. Box number: __________.
3. Name in which box is held: __________.
4. Identity of persons entitled to enter box: __________.
5. Location of key: __________.
6. Identity of persons entitled to contents at death.
7. Characterization of contents: __________ (separate, community, quasi-community).
R. Gifts of More Than $10,000 and Advancements:
For each such gift or advancement, obtain the following information:
1. Description of gift or advancement: __________.
2. Identity of donee: __________.
3. Characterization of source of property donated (separate, community, quasi-community): __________.
4. Whether gift tax return was filed? Yes _____. No _____.
5. If filed, identity of preparer: __________.
6. Whether gift was intended as advancement? Yes _____. No _____.
7. If yes, did donee execute a written acknowledgment? Yes _____. No _____.
S. Powers of Appointment.
For each power of appointment for which testator is donee, obtain the following information:
1. Instrument under which power created: __________.
2. Location of instrument: __________.
3. General contents of instrument: __________ [specify details, including source, person in whose favor power may be exercised, conditions, property involved].
T. Current Wills, Living Trusts, or Durable Power of Attorney.
For each such instrument prepared by testator, obtain a copy of the instrument.
U. Specific Burial or Funeral Instructions or Anatomical Gifts: __________.
Practice Notes:
þObservation: This questionaire is intended to completed by counsel in connection with interviewing a client before preparing an estate plan. Alternatively, the form can be modified to be a questionaire to be sent to a client before the initial interview to be brought to the interview. Documents or information for use in establishing ownership or cost basis of the property or the value of the testator's interest should be attached to or kept with the record of the testator's personal and business affairs.
þRecommendation: Information should also be obtained from the testator's spouse or domestic partner if possible, since the property and interests of the spouse or domestic partner are relevant in determining the character and amount of the testator's estate and, if applicable, the maximum marital deduction.
A short memorandum may be prepared in connection with the execution of a will stating pertinent information as to the testator and the will. See § 41:182.
§ 41:182 Memorandum of execution of will
MEMORANDUM OF EXECUTION OF A WILL
1. Will of _________________________________________________.
2. Date when will executed _________________________________.
3. Place where will executed _______________________________.
4. Person who prepared will ________________________________.
5. Testator's address_______________________________________.
6. Testator's phone: Home (____) __________; Office (____) __________.
7. Testator's date of birth ________________________________.
8. Social security number __________-_____-__________.
9. Testator's occupation ___________________________________.
10. Testator's citizenship __________.
11. Resident alien? Yes _____. No _____.
12. Testator's physical condition __________________________.
13. Testator's mental condition ____________________________.
14. Can testator (a) Read __________. (b) Write __________.
15. Can testator sign his or her name? __________. Yes _____.
No _____. If not, why not?____________________________________.
16. Names of attesting witnesses:
(a)______________________________
(b) ____________________
(c)______________________________
17. Names of other persons present besides testator and witnesses ________________________________________________________________________________________________________________________________
______________________(Signature of person preparing memorandum)
_________________________________________________(Name in Print)
_______________________________________________________(Address)
(____)-__________ (Phone)
Practice Notes:
This memorandum provides factual information as to the circumstances of the testator at the time the will is executed for use in eventually probating the will.
§ 41:182.1 [NEW] Notice and acknowledgment of acceptance of will for safekeeping
NOTICE AND ACKNOWLEDGMENT
To: __________ [depositor name]
__________ [depositor address]
I have accepted your will or other estate planning document for safekeeping. I must use ordinary care for preservation of the document.
You must keep me advised of any change in your address shown above. If you do not and I cannot return this document to you when necessary, I will no longer be required to use ordinary care for preservation of the document, and I may transfer it to another attorney, or I may transfer it to the clerk of the superior court of the county of your last known domicile, and give notice of the transfer to the State Bar of California.
[Signature] __________ [petitioner address]
My address shown above is correct. I understand that I must keep you advised of any change in this address.
Dated: __________ [form date]
[Signature of depositor]
Practice Notes:
This form is required by Prob C § 715, enacted in 1993.
§ 41:183 Testator's letter of instructions
The testator may make a letter of instructions to accompany a will. The letter may be incorporated into the will if it is in existence at the time the will is executed and is specifically referred to in the will. Prob C Sec. 6130. A letter of instruction may contain information, such as:
1. Persons to be notified upon testator's death, with their addresses and telephone numbers:
a. Funeral home.
b. Relatives.
c. Employer.
d. Executor.
e. Trustee of testator's inter vivos trust.
f. Guardian named in testator's will for testator's minor children.
g. Lawyer.
h. Partners or business associates.
i. Other persons.
2. Burial and funeral instructions:
a. Cemetery plot location, deed number, and location of deed.
b. Facts needed by funeral director, such as testator's full name, residence, marital status, name of spouse, date of birth, place of birth, father's name and birthplace, mother's maiden name, military service, length of residence in the United States, length of residence in state, social security number, occupation, special wishes and desires.
c. Words to be inscribed on gravestone.
d. If cremation is desired, specification as to disposition of ashes.
e. Authorization for use of organs or body parts as anatomical gifts.
3. Location of all important legal and personal papers and information:
a. Will.
b. Insurance policies.
c. Bank books, checkbooks, and certificates of deposits.
d. Bonds and stock certificates.
e. Social security and medicare cards and papers.
f. Title and registration documents of automobiles.
g. Titles, deeds, and other relevant papers relating to real property.
h. Birth and baptismal certificates.
i. Marriage certificate.
j. Judgment of dissolution of marriage or divorce decree and separation or settlement agreements.
k. Military records.
l. Naturalization papers or alien registration card.
m. Income tax returns.
n. Credit cards.
o. Mortgage and other documents relating to outstanding loans.
p. Bank statements and cancelled checks.
q. Important warranties, such as warranties for appliances.
r. Important receipts, such as receipts for home improvements.
s. Other legal papers.
t. Information on location of computer discs and directories containing financial records, including any passwords necessary to obtain access to the records.
4. Location of safe-deposit box, number, in whose name it is registered, location of key, and list of contents.
5. Membership in any fraternal or mutual aid association which provides death benefits or insurance coverage, including address and telephone number of association, person to contact as to procedure for collecting benefit, and location of certificate of membership or certificate of insurance.
6. List of life and accident insurance policies, with name and address of company, policy number, amount of coverage, beneficiaries, name, address, and telephone number of insurance agent, and instructions to file claim immediately.
7. List of homeowner's, fire, casualty, and other insurance policies, including name and address of company, policy number, amount of coverage, beneficiaries, and name, address, and telephone number of insurance agent.
8. List of insurance policies insuring other members of family for which testator has been paying premiums, including name and address of company, policy number, amount of coverage, beneficiaries, and name, address and telephone number of insurance agent.
9. Social Security number, with instructions to call local Social Security office to inform them of testator's death, to ask for an appointment and what papers to bring, and instructions to file claim immediately.
10. List of all real property and interests of real property including location of the property, its acquisition cost, costs of improvements, liens and encumbrances against the property, persons responsible for making payments on or maintaining the property.
11. List of bank accounts, with name and address of bank, account number, name or names on the account, type of account, and any special instructions.
12. List of all bonds, with their serial numbers, denominations, and names in which they are registered.
13. List of all shares of stock, with names of companies, number of shares, in whose names they are issued, and name and address of stockbroker.
14. List of pension or profit sharing plans, and the location of any documents relevant thereto.
15. List of all credit cards, with the name and address of the issuer and card number.
16. List of monetary obligations, including mortgages, with name and address of bank or other lender, account number, name appearing on loan documents, amount of loan, monthly payment, collateral, if any, and whether there was life insurance on loan, and if so, name and address of insurer, with instructions to notify and file claim immediately.
17. List of all automobiles, with year, make, model, body type, number of cylinders, color, license number and vehicle identification number.
18. List and location of personal effects and other personal property with sentimental value, and names and addresses of persons to whom such property should be given.
19. Matters relating to house or condominium, including address, in whose name title is recorded, and legal description. Include a list of home improvements, with the date and cost. Include also a statement as to actual cost of the house, and expenses incurred in purchasing house.
20. If renting, name and address of landlord, expiration date of lease, location of lease agreement and receipts of payments.
21. If veteran, instructions to notify nearest Veterans Administration of testator's death and to ask what benefits are available.
22. Other special instructions.
Practice Notes:
þRecommendation: Every person who makes a will should also write a letter of instruction. The purpose of such a letter is to provide the executor or the beneficiaries with additional personal information which probably is too intimate or too detailed to be incorporated in a will so that they can handle the testator's estate and personal affairs more efficiently.
At least three copies of the letter of instruction should be prepared and each copy placed in a sealed envelope marked "Letter of Instruction" with the name of the testator. Copies should be distributed as follows: the first copy given to the executor, the second copy attached to the will, and the third copy placed in a place where the testator's survivors will first look for important documents upon the testator's death.
§ 41:184 Living will--Request person not be kept alive by artificial or extraordinary means
DECLARATION
If I should have an incurable and irreversible condition that has been diagnosed by two physicians and that will result in my death within a relatively short time without the administration of life-sustaining treatment or has produced an irreversible coma or persistent vegetative state, and I am no longer able to make decisions regarding my medical treatment, I direct my attending physician, pursuant to the California Natural Death Act, to withhold or withdraw treatment, including artificially administered nutrition and hydration, that only prolongs the process of dying or the irreversible coma or persistent vegetative state and is not necessary for my comfort or to alleviate pain.
If I have been diagnosed as pregnant, and that diagnosis is known to my physician, this declaration shall have no force or effect during my pregnancy.
Signed on __________ [form date].
[Signature]
[Address]
The declarant voluntarily signed this writing in my presence. I am not a health care provider, an employee of a health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, or an employee of an operator of a residential care facility for the elderly.
[Signature]
[Address]
The declarant voluntarily signed this writing in my presence. I am not entitled to any portion of the estate of the declarant upon his or her death under any will or codicil thereto of the declarant now existing or by operation of law. I am not a health care provider, an employee of a health care provider, the operator of a community care facility, an employee of an operator of a community care facility, the operator of a residential care facility for the elderly, or an employee of an operator of a residential care facility for the elderly.
[Signature]
[Address]
Practice Notes:
The Natural Death Act (H & S C §§ 7185 et seq.) recognizes the right of an adult person to make a written declaration instructing his or her physician to withhold or withdraw life-sustaining treatment on a terminal condition or permanent unconscious condition, if the person is unable to make those decisions for himself or herself. H & S C § 7185.5(d).
The declaration must contain the preceding provisions. H & S C § 7186.5(b). A physician or other health care provider who is furnished a copy of the declaration shall make it a part of the declarant's medical record and, if unwilling to comply with the declaration, promptly so advise the declarant. H & S C § 7186.5(c). The physician or health care provider may presume the declaration is valid in the absence of knowledge to the contrary. H & S C § 7192.
Practice Aids:
For discussion of durable powers of attorney for health care, see Powers of Attorney (Ch 30A).
Living wills: validity, construction, and effect, 49 ALR4th 812.
2. COMPLETE WILL FORMS
a. STATUTORY WILL
§ 41:191 Questions and answers about the California statutory will
QUESTIONS AND ANSWERS ABOUT THIS CALIFORNIA STATUTORY WILL
The following information, in question and answer form, is not a part of the California Statutory Will. It is designed to help you understand about Wills and to decide if this Will meets your needs. This Will is in a simple form. The complete text of each paragraph of this Will is printed at the end of the Will.
1. What happens if I die without a Will? If you die without a Will, what you own (your "assets") in your name alone will be divided among your spouse, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
2. What can a Will do for me? In a Will you may designate who will receive your assets at your death. You may designate someone (called an "executor") to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a "guardian") to raise your children who are under age 18. You may designate someone (called a "custodian") to manage assets for your children until they reach any age between 18 and 25.
3. Does a Will avoid probate? No. With or without a Will, assets in your name alone usually go through the court probate process. The court's first job is to determine if your Will is valid.
4. What is community property? Can I give away my share in my Will?. If you are married and you or your spouse earned money during your marriage from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse's one-half of community property.
5. Does my Will give away all of my assets? Do all assets go through probate? No. Money in a joint tenancy bank account automatically belong to the other named owner without probate. If your spouse or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass directly to the named beneficiary. A Will does not necessarily control how these type of "nonprobate" assets pass at your death.
6. Are there different kinds of Wills? Yes. There are handwritten Wills, typewritten Wills, attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires. You should see a lawyer if you do not want to use this statutory Will or if you do not understand this form.
7. Who may use this Will? This Will is based on California law. It is designed only for California residents. You may use this form if you are single, married, or divorced. You must be age 18 or older and or sound mind.
8. Are there any reasons why I should NOT use this statutory Will? Yes. This is a simple Will. It is not designed to reduce death taxes or other taxes. Talk to a lawyer to do tax planning, especially if (i) your assets will be worth more than $600,000 at your death, (ii) you own business related assets, (iii) you want to create a trust fund for your children's education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse or descendants, or (vi) you have valuable interests in pension or profit sharing plans. You should talk to a lawyer who knows about estate planning if this Will does not meet your needs. This Will treats most adopted children like natural children. You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.
9. May I add or cross out any words on this Will? No. If you do, the Will may be invalid or the court may ignore the crossed out or added words. You may only fill in the blanks. You may amend this Will by a separate document (called a codicil). Talk to a lawyer if you want to do something with your assets which is not allowed in this form.
10. May I change my Will? Yes. A Will is not effective until you die. You may make and sign a new Will. You may change your Will at any time, but only by an amendment (called a codicil). You can give away or sell your assets before your death. Your Will only acts on what you own at death.
11. Where should I keep my Will? After you and the witnesses sign the Will, keep your Will in your safe deposit box or other safe place. You should tell trusted family members where your Will is kept.
12. When should I change my Will? You should make and sign a new Will if you marry or divorce after you sign this Will. Divorce or annulment automatically cancels all property stated to pass to a former husband or wife under this Will, and revokes the designation of a former spouse as executor, custodian, or guardian. You should sign a new Will when you have more children, or if your spouse or a child dies. You may want to change your Will if there is a large change in the value of your assets.
13. What can I do if I do not understand something in this Will? If there is anything in this Will you do not understand, ask a lawyer to explain it to you.
14. What is an executor? An "executor" is the person you name to collect your assets, pay your debts and taxes, and distribute your assets as the court directs. It may be a person or it may a qualified bank or trust company.
15. Should I require a bond? You may require that an executor post a "bond." A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate's assets.
16. What is a guardian? Do I need to designate one? If you have children under age 18, you should designate a guardian of their "persons" to raise them.
17. What is a custodian? Do I need to designate one? A "custodian" is a person you may designate to manage assets for someone (including a child) who is between ages 18 and 25 and who receives assets under your Will. The custodian manages the assets and pays as much as the custodian determines is proper for health, support, maintenance, and education. The custodian delivers what is left to the person when the person reaches the age you choose (between 18 and 25). No bond is required of a custodian.
18. Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian? Probably yes. Some people and banks and trust companies may not consent to serve or may not be qualified to act.
19. What happens if I make a gift in this Will to someone and they die before I do? A person must survive you by 120 hours to take a gift under this Will. If they do not, then the gift fails and goes with the rest of your assets. If the person who does not survive you is a relative of you or your spouse, then certain assets may go to the relative's descendants.
20. What is a trust? There are many kinds of trusts, including trusts created by Wills (called "testamentary trusts") and trusts created during your lifetime (called "revocable living trusts"). Both kinds of trusts are long-term arrangements where a manager (called a "trustee") invests and manages assets for someone (called a "beneficiary") on the terms you specify. Trusts are too complicated to be used in this statutory Will. You should see a lawyer if you want to create a trust.
INSTRUCTIONS
1. READ THE WILL. Read the whole Will first. If you do not understand something, ask a lawyer to explain it to you.
2. FILL IN THE BLANKS. Fill in the blanks. Follow the instructions in the form carefully. Do not add any words to the Will (except for filling in blanks) or cross out any words.
3. DATE AND SIGN THE WILL AND HAVE TWO WITNESSES SIGN IT. Date and sign the Will and have two witnesses sign it. You and the witnesses should read and follow the Notice to Witnesses found at the end of this Will.
Practice Notes:
There is only one California statutory will. Prob C § 6223(a). The California statutory will is preceded by a statutorily mandated list of questions and answers about the California statutory will form. Prob C § 6240; see § 41:191). The questions and answers are not part of the California statutory will. Prob C § 6223(b)(1). By reference, the statutory will includes the full tests of (Prob C § 6223(b)(2): The definitions and rules of construction in Prob C §§ 6200 et seq.; The property disposition clauses adopted by the testator, or if none then the testator's property is distributed under the principles of intestate succession; the following mandatory clauses.
The mandatory clauses of all California statutory wills are as follows (Prob C § 6241):
1. Intestate disposition. If the testator has not made an effective disposition of the residuary estate, the executor must distribute it to the testator's heirs at law, their identities and respective shares to be determined according to the laws of the State of California in effect on the date of the testator's death relating to intestate succession of property not acquired from a predeceased spouse.
2. Powers of executor. In addition to any powers now or subsequently conferred upon executors by law, including all powers granted under the Independent Administration of Estate Act, the executor has the power to: sell estate assets, at public or private sale, for cash or on credit terms; lease estate assets without restriction as to duration; and invest any surplus money of the estate in real or personal property as the executor deems advisable.
3. Powers of executor. The executor may distribute estate assets otherwise distributable to a minor beneficiary to the guardian of the minor's person or estate, to any adult person with whom the minor resides and who has the care, custody, or control of the minor, or to a custodian of the minor under the Uniform Transfers to Minors Act as designated in the California statutory will form. The executor is free of liability and discharge from any further accountability if the executor so distributes assets.
4. Powers of executor. On any distribution of assets from the estate, the executor has the discretion to partition, allot, and distribute the assets: in kind, including undivided interest in an asset or in any part of it; partly in cash and partly in kind; or entirely in cash. If the distribution is being made to more than one beneficiary, the executor has the discretion to distribute assets among them on a pro rata or non-pro rata basis, with the assets valued as of the date of distribution.
5. Powers of guardian. A guardian of the person nominated in the California statutory will has the same authority with respect to the person of a ward as a parent having legal custody of a child would have. All powers granted to guardians in this paragraph may be exercised without court supervision.
For discussion of the California statutory will, generally, see §§ 41:151 et seq.
b. WILLS OF MARRIED PERSONS WITH CHILDREN
§ 41:201 Residuary estate to spouse--Guardianship of minors--Executor to continue business
WILL OF __________ [Testator full name]
I, __________ [Testator name], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [Testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children and Grandchildren
I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
References in this will to my __________ [child or children] include all these children and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
__________ [I have __________ (one) deceased child named __________ who died __________ (date), and who leaves surviving the following __________ (number) children:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________]
Four
Property Disposed of by Will
I intend by this will to dispose of all of my property of whatever nature and wherever situated. I confirm to my spouse, my spouse's one-half community property interest in all community and quasi-community assets passing under or outside of this will. I intend that this will dispose of all my separate property, and my one-half interest in the community property and quasi-community property, if any, of myself and my spouse.
or
I intend by this will to dispose of all my property, real, personal, and mixed, including any and all property of whatever nature acquired after the execution of this will, wherever situated.
Five
Powers of Appointment
__________ [(If testator desires to exercise any power of appointment testator may have, state: I appoint __________ (name) to receive any and all property as to which I have any power of appointment under any will or other instrument).
or
___________ (If testator does not intend by the will to exercise any power of appointment testator may have, state: I do not intend to exercise any power of appointment which I may have)].
Six
Funeral and Burial; Disposition of Body
1. I direct that my funeral be conducted __________ [specify, such as: according to the rites of the __________ Church] by __________ [desired funeral conductor name], at __________ [church of funeral] Church in __________ [city of funeral], California.
2. I direct that my body be buried in __________ [place of burial such as my plot or my family plot] in the __________ [cemetery name] Cemetery at __________ [cemetery address].
3. I direct that the total cost of my funeral, burial, and gravestone is not to exceed __________ Dollars ($____) [maximum dollar cost of funeral, burial, and gravestone].
Seven
Devise of Home
I give to my spouse any interest I may have in __________ [my or our] home, located at __________ [address of home], or any other home which we may be occupying as our principal residence at my death, subject to any __________ [trust deed or mortgage] or other encumbrance and all unpaid real property taxes and special assessments which are a lien at the date of my death. __________ [If my spouse, __________, does not survive me for __________ days, this gift shall lapse and become part of the residue of my estate or make alternate disposition.]
Eight
Devises to Spouse
I give to my spouse, if __________ [spouse he or she] survives me for _____ [number of days beyond testator life devisee must survive to receive personal property] days, any interest I may have in all household furniture, furnishings and fixtures, jewelry, china, silverware, books, pictures, clothing, and all other items of domestic, household, or personal use or adornment, and all automobiles which at the time of my death shall be in, about, or used in connection with my home.
If my spouse does not so survive me, I give the property described in the previous paragraph to my children who survive me for _____ [number of days beyond testator life devisee must survive to receive personal property] days, in equal shares.
If none of my children survive me, this gift shall lapse and the property shall become part of the residue of my estate.
Nine
Devises to Sons
I give to my son, __________ [son name], who resides at __________ [son address], the sum of __________ Dollars ($____)[dollar amount devised to son].
I give to my son, __________ [son name], who resides at __________ [son address], the following described property: __________ [description of property devised to son].
Ten
Devises to Daughters
I give to my daughter, __________ [daughter name], who resides at __________ [daughter address], the sum of __________ Dollars ($____) [dollar amount devised to daughter].
I give to my daughter, __________ [daughter name], who resides at __________ [daughter address], the sum of __________ Dollars ($____) [dollar amount devised to daughter], and the following described property: __________ [description of property devised to daughter].
Eleven
Devises to Other Family Members
I give to the following named relatives the property or properties set forth opposite their respective names
Description of
Name Relationship Property Value
__________ __________ __________ $_____
__________ __________ __________ $_____
__________ __________ __________ $_____
Twelve
Devises to Charitable Organizations
I give to __________ [name of charitable organization], located at __________ [charitable organization address], the sum of __________ Dollars ($____) [dollar amount devised to charitable organization], but in no event shall this gift exceed __________ percent (____%) [maximum percentage of estate devised to charitable organization] of my distributable estate. If the sum given should exceed such percentage, I direct that this gift be reduced to a sum which will equal such percentage.
Thirteen
Lapses and Gifts Over
If any of the beneficiaries mentioned in Paragraphs Nine, Ten, and Eleven do not survive me __________ [if desired, add: for _____ days], then I give such sum of money and property to that beneficiary's lawful descendants living at me death, by right of representation. If a beneficiary leaves no lawful descendants living at my death, then his or her gift shall lapse and such gift shall become part of the residue of my estate.
Fourteen
Residuary Estate
All the residue of my estate __________ [if appropriate, add: except property over which I may have a power of appointment], I give to my spouse, __________ [spouse name], if __________ [spouse he or she] survives me for _____ [number of days beyond testator life devisee must survive to receive residue of estate] days. If my spouse does not so survive me, I give the residue of my estate __________ [state alternate disposition, such as: to my son, __________ (name), who resides at __________ (address), and my daughter, __________ (name), who resides at __________ (address), in equal shares, if they survive me __________ (if desired, add: for _____ days)].
If any of my children do not so survive me, then I give my deceased child's or children's share of the residue to his or her lawful descendants living at my death, by right of representation. If any of my children do not so survive me and dies leaving no lawful descendants living at my death, then I give the deceased child or children's share of the residue to my surviving children in equal shares.
If my spouse, my children, and none of my children's lawful descendants survive me for _____ [number of days beyond testator life devisee must survive to receive residue of estate] days, then I give the residue of my estate to __________ [alternate disposition of residuary estate such as: my heirs as determined by the laws of the State of California relating to descent and distribution].
Fifteen
Debts and Expenses
I direct that all lawful debts and obligations, not barred by a statute of limitation or discharged in bankruptcy, be paid as soon as practicable after my death.
Sixteen
Taxes
All estate, succession, or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under the terms of this will or otherwise.
Seventeen
Disinheritance
Except as otherwise provided in this will, I intentionally make no other provision for __________ [name of children disinherited or if all children disinherited, any] children of mine now living or any children subsequently born to or adopted by me or any other issue of mine.
Eighteen
Will Contest
Should any of my beneficiaries in this will contest it in any manner, I revoke any gift to him or her, and direct that his or her share of any gift be disposed of as if he or she had predeceased me.
Nineteen
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [executor name] does not survive me, or if __________ [executor he or she] does not qualify as or is unwilling to or ceases to act as executor, I nominate and appoint __________ [name of alternate executor, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [executor bank or trust company], the executor of this will, to serve __________ [without or with (according to bond status)] bond.
Twenty
Powers and Duties of Executor
My executor may, in my executor's sole discretion, retain any securities, real property, or other investments and continue to hold, manage, and operate any property, business, or enterprise that I may own in whole or in part at the time of my death, with or without order of court, the profits or losses from doing so, if any, to inure to and be chargeable against my estate and not my executor.
Twenty-One
Attorney for Executor
I appoint __________ [executor attorney], attorney at law, of __________ [executor attorney address], as the attorney for my executor.
Twenty-Two
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [execution date], at __________ [execution location], California in the presence of __________ [witnesses name].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
Federal and state estate taxes and generation skipping taxes may be imposed on the transfer of an individual's taxable estate at his or her death. For further discussion, see §§ 41:11 et seq.
Paragraph Six
Funeral expenses, estate administration expenses and expenses of the decedent's last illness are deductible from the gross estate in determining the taxable estate of a decedent. 26 USCS § 2053(a).
Paragraph Seven
The estate of a deceased United States citizen or resident is allowed to deduct the value of property passing to the decedent's surviving spouse from the value of such decedent's gross estate. 26 USCS § 2056.
A deduction is allowed from the value of the taxable estate for the amount of any unpaid mortgages on, or any indebtedness in respect of, property where the value of the decedent's interest therein, undiminished by the mortgage or indebtedness, is included in the gross estate, subject to the same limitations as applied to claims against the estate. See 26 USCS § 2053(a); 26 CFR § 20.2053-7.
If a property interest passes from the decedent to his or her surviving spouse subject to a provision that such interest is to pass to some other person if the spouse fails to survive the decedent by 6 months (or by a shorter period) or if the decedent and his or her spouse die as a result of a common disaster, the property interest is considered a deductible interest if the spouse survives beyond the stated period and does not die as the result of a common disaster. 26 USCS § 2056(b)(3); 26 CFR § 20.2056(b)-3.
Paragraph Twelve
A deduction from the gross estate of a decedent is allowed for devises and other transfers to qualified public, charitable, and religious uses. 26 USCS § 2055.
Paragraph Fourteen
þComment: Property passing to the surviving spouse under a residuary devise can qualify for the marital deduction. Care must be taken, however, that residuary assets out of which the marital deduction can be satisfied are not so-called tainted assets (a "tainted" asset is a particular asset that would be a nondeductible interest if it passed from the decedent to his or her spouse) which do not qualify for the deduction. Otherwise, much or all of the deduction may be lost. See 26 USCS § 2056(b)(2); see also 26 CFR § 20.2056(b)-2.
Paragraph Sixteen
The executor or administrator is responsible for the payment of the federal estate tax. 26 USCS §§ 2002, 2203. If there is no executor or administrator appointed, qualified, and acting in the United States, the liability falls upon the person or persons who are in actual or constructive possession of property of the decedent. 26 USCS § 2203.
For a discussion of federal estate taxes, see §§ 41:11 et seq.
þComment: Both federal and state law give the testator utmost freedom to allocate the estate tax bill as he or she deems best. The testator's expressed intentions are generally recognized as controlling. The will should provide to what extent, therefore, persons such as life insurance beneficiaries, appointees, or takers in default under a power of appointment must reimburse the estate for death taxes attributable to their benefits. Whether such a burden may also be imposed unilaterally by the testator with regard to joint tenants or persons who received from the testator an inter vivos gift includible in the taxable estate depends on the applicable state law. See 26 USCS §§ 2205-2207; see §§ 41:931 et seq.
Practice Aids:
Texts: Direction in will for payment of taxes. 23 Cal Jur 3d, Death and Gift Taxes § 121.
Paragraph Twenty
During the period of its existence, an estate is a separate taxable entity and, subject to certain qualifications, is taxed in much the same way as an individual. See 26 USCS § 641 and § 41:92.
For relevant form drafting principles, see §§ 41:131 et seq., for checklists, see §§ 41:171 et seq.
For particular forms of devises, see §§ 41:591 et seq. For testamentary trust provisions, see Trusts (Ch 42).
þComment: An estate may collect substantial income while in the process of administration. Considerable income tax savings may be achieved during a prolonged period of administration by directing or at least authorizing the executor to distribute any surplus income currently to beneficiaries entitled to the income, thus spreading the estate income among a larger number of taxpayers in usually lower income tax brackets. Alternatively, instead of making surplus income currently distributable, the will may give the executor discretion to distribute to certain beneficiaries amounts not in excess of the estate's current income. Within the limits of taxable distributable net income, the fiduciary may take a deduction even for distributions made actually out of corpus, except for such items as devises of a specific property or a specific sum of money. Since such a corpus distribution may be taxable income to the distributee, such assets as an automobile, personal jewelry, or a residence should preferably be disposed of as a specific devise. See 26 USCS §§ 661(a), 662(a), 663(a)(1).
þObservation: The powers granted in the will to the executor with regard to specific assets may have a bearing on whether income from the assets is taxable to the estate or directly to the beneficiaries. For example, the executor may have the actual control of the property, the right to collect the income and the power or duty to sell the asset, in which case the estate is the primary taxpayer and the ultimate beneficiary reports the income only as a distributee. Such powers may have similar effect on deductibility of losses. See Kuldell v Commissioner (1934, CA5 Tex) 69 F2d 739, 4 USTC P 1255, 13 AFTR 783; Horwitz's Estate v Commissioner (1950, CA5) 181 F2d 85, 50-1 USTC P 9225, 39 AFTR 200.
Practice Notes:
Texts: Requisites of wills generally. 64 Cal Jur 3d, Wills §§ 107 et seq.
--Definitions and distinctions of testamentary gifts. 64 Cal Jur 3d, Wills §§ 18-20.
Introduction
þRecommendation: Recitation of the testator's full name is desirable, including variations. Any other names by which the testator is known should also be included in the introductory provision, particularly those in which the testator holds property or does business. A female testator who is married, widowed, or divorced should also include her former maiden name, and any former married names.
Paragraph One
þReminder: A will or any part thereof is revoked by a subsequent will revoking the prior will or part expressly or by inconsistency. Prob C § 6120(a); see §§ 41:1221.
þCaution: A provision stating that the testator is not acting under fraud or undue influence is unlikely to have much effect, as the testator would be unlikely to be aware of such influences. A testator who was under duress or menace could not be expected to refuse to sign a will containing this statement. The provision would not preclude a court from hearing evidence that the testator was influenced by duress, menace, fraud or undue influence.
Practice Aids:
Texts: Revocation of wills by subsequent instrument. 64 Cal Jur 3d, Wills §§ 159-166.
--Bancroft-Whitney's California Civil Practice, 2 Probate Will Contests (Ch 10).
Paragraph Two
þRecommendation: Use of the term "spouse" rather than "husband" or "wife" makes adaptation of will provisions from one will to another easier and more accurate.
þCaution: Failure to mention or provide for a spouse may result in the spouse taking as an omitted spouse. See §§ 41:441 et seq.
Paragraph Three
þNote: As used in the Probate Code, the term "child" means any individual entitled to take as a child by intestate succession from the parents whose relationship is involved. Prob C § 26. For discussion of the factors that establish a parent-child relationship under the intestate succession laws, see §§ 41:411 et seq.
þRecommendation: It is recommended that the names and addresses of all descendants of a deceased child who might be heirs of the testator be set out in the will to indicate that they were in the testator's mind at the time he or she executed the will for purposes of the omitted heirs statutes, see §§ 41:441 et seq.
Paragraph Four
þNote: A will is construed to pass all property the testator owns at death including property acquired after execution of the will, except for that property subject to a power of appointment. Prob C § 6142.
þReminder: Upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent. Prob C § 100. Additionally, one-half of the decedent's quasi-community property belongs to the surviving spouse and other half belongs to the decedent. Prob C § 101. The deceased spouse can only dispose of his or her share of the community and quasi-community property. If he or she attempts to dispose of more than that share, the surviving spouse must elect between taking under the will or his or her intestate share of the estate. See § 41:592.
þReminder: "Community property" means community property previously or subsequently acquired during marriage by a married person while domiciled in California; all personal property where ever situated and all real property situated in California, previously or subsequently acquired marriage by a married person while domiciled elsewhere, that is community or a substantially equivalent type of marital property under the laws of the place where the acquiring spouse was domiciled at the time of its acquisition, and all personal property wherever situated and all personal property where ever situated and all real property situated in California, previously or subsequently acquired during the marriage by a married person in exchange for real or personal property, where ever situated, that is community property or a substantial equivalent type of marital property under the laws of the place where the acquiring spouse was domiciled at the time the property so exchanged was acquired. Prob C § 28.
Practice Aids:
Texts: Devises of property held as tenants in common. 16 Cal Jur 3d (Rev) Part 1, Cotenancy and Joint Ownership §§ 18-20.
--Power of cotenant to sell or encumber his or her interest or that of his or her cotenant. 16 Cal Jur 3d (Rev) Part 1, Cotenancy and Joint Ownership §§ 36, 37.
--Property which may be devised. 64 Cal Jur 3d, Wills §§ 372 et seq.
--Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Paragraph Five
þNote: A beneficiary under a power of appointment may disclaim any interest, in whole or in part, by filing a disclaimer as provided by the Probate Code. Prob C § 275; see §§ 41:1251 et seq.
þRecommendation: To avoid any possible misconstruction of a testator's intention not to exercise a power of appointment, exercise of any power of appointment the testator may have should be specifically negated in the will. For discussion of exercising a power of appointment, see §§ 41:571 et seq.
Practice Aids:
Texts: Exercise of powers of appointment generally. 50 Cal Jur 3d, Powers §§ 10 et seq.
Effect of failure to exercise power of appointment before death. 50 Cal Jur 3d, Powers § 28.
Paragraph Six
þObservation: Before appointment, a person named executor in a will may carry out written instructions of the decedent relating to his or her body, funeral and burial arrangements. H & S C § 7100; §§ 41:311 et seq.
þNote: An executor may, before the appointment becomes effective pay funeral expenses and take necessary measures for the preservation and maintenance of the estate. Prob C § 8400(b).
Practice Aids:
Annotations: Validity and effect of testamentary direction as to disposition of testator's body, 7 ALR3d 747.
--Bancroft-Whitney's California Civil Practice, 1 Probate Immediate Post Death Activities (Ch 2).
Paragraph Seven
þComment: A dissolution or annulment subsequent to the execution of a will revokes any disposition or appointment of property made by the will to the former spouse, any provision of the will conferring a general or special power of appointment on the former spouse, and any provision of the will nominating the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of the revocation passes as a former spouse failed to survive the testator and other provisions of the will conferring power or office on the former spouse are interpreted as if the former spouse failed to survive the testator. Prob C § 6122.
þReminder: A specific devise passes the property devised subject to any mortgage, deed of trust, or other lien existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts. Prob C § 6170.
þNote: If the testator after execution of the will places a charge or encumbrance on specifically devised property for the purpose of securing the payment of money or the performance of any covenant or agreement, the devisee has the right to the property subject to the charge or encumbrance. Prob C § 6176.
þObservation: Requiring a beneficiary to survive the testator by a specified period, usually 180 days or less, prevents administration of the same property in two estates where the testator and beneficiary die in a common accident or within a short period. See §§ 41:381 et seq.
Paragraph Eight
þComment: This provision is intended to be broad and general enough to take care of all personal effects in the usual family situation. However, no universally accepted definition of personal effects exists that is applicable in all situations. Where the testator desires to dispose of extensive or valuable collections of art objects, precious stones, rare books, china, paintings, antiques, photographic equipment, and so on, or such individual items as house trailers, riding horses, boats, boat trailers, etc., specific devises should be made of each item or group of items, or a reasonably accurate description of them should be included in the personal effects provision.
Practice Aids:
Texts: What is included in such terms as "personal property" or "personal belongings." 64 Cal Jur 3d, Wills §§ 352-354.
--Devises generally. 64 Cal Jur 3d, Wills §§ 372 et seq.
Annotations: What passes under term "things" or "personal things" in will, 41 ALR2d 946.
--Construction of will provision for gift over if first taker dies without issue and if some other contingency occurs, where there is death without issue but the other contingency does not occur, 73 ALR2d 466.
--Gift over by implication after estate during life or until marriage, where property is expressly given over at death and first taker marries, or vice versa, 73 ALR2d 484.
--Person entitled to devise or bequest to "husband," "wife," or "widow", 75 ALR2d 1413.
--What passes under term "personal property" in will, 94 ALR2d 1106.
--Right of heir or devisee to have realty exonerated from lien thereon at expense of personal estate, 4 ALR3d 1023.
--Validity and effect of agreement that debt or legal obligation contemporaneously or subsequently incurred shall be canceled by death of creditor or obligee, 11 ALR3d 1427.
--What passes under terms "personal belongings," "belongings," "personal effects" or "effects" in will, 30 ALR3d 797.
Paragraphs Nine and Ten
Practice Aids:
Texts: Gifts to children generally. 64 Cal Jur 3d, Wills §§ 349, 350.
--Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Annotations: Testamentary gift to children as including stepchild, 28 ALR3d 1307.
Paragraph Eleven
Practice Aids:
Texts: Gifts to relatives, heirs, or next of kin of testator. 64 Cal Jur 3d, Wills § 347.
--Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Paragraph Twelve
þComment: It may be advisable to limit general charitable devises to a stated percentage of the distributable estate to protect the residuary devisee, who is usually the spouse or the testator's children, whose welfare is ordinarily more important to the testator than that of a charitable organization.
Paragraph Thirteen
þNote: There are three different methods by which the interests of the issue or descendants of a predeceased beneficiary may take the beneficiary's interest. See Prob C § 240 et seq. and §§ 41:401 et seq. If the will calls for issue or descendants to take by right of representation is their share is computed under Prob C § 246. If a will does not specify the manner, the property is divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living to receive one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her issue. Prob C § 240.
Practice Aids:
Texts: Taking of property per stirpes or by right of representation. 64 Cal Jur 3d, Wills §§ 347, 397.
--Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Paragraph Fourteen
þCaution: A general residuary clause in a will does not exercise a power of appointment unless the specific reference is made to the power or there is some other indication of intent to exercise the power. Prob C § 641(a); see §§ 41:571 et seq.
þReminder: Any part of the estate of a decedent not effectively disposed of by will passes to the decedent's heirs as provided in the Probate Code part dealing with intestate succession. Prob C § 6400.
Practice Aids:
Texts: Residuary gifts. 64 Cal Jur 3d, Wills §§ 399-402.
Annotations: Devolution of lapsed portion of residuary estate, 36 ALR2d 1117.
Paragraph Fifteen
þReminder: The debts of the decedent, the expenses of administration and the charges against the estate must be paid in the order prescribed by statute. Prob C 11420; see §§ 41:1021 et seq.
Practice Aids:
Texts: Direction in will for payment of debts. 64 Cal Jur 3d, Wills § 230.
--Bancroft-Whitney's California Civil Practice, 2 Probate Claims of Creditors (Ch 12) and Claims of Creditors of Estate Property (Ch 13).
Paragraph Sixteen
þRecommendation: There is a statutory scheme for allocation of death taxes among beneficiaries. Prob C §§ 20100 et seq. see §§ 41:931 et seq. In estates of medium to substantial size, which have a wider diversity of property holdings and methods of ownership than do more simple estates, and where the will makes large specific and general devises, or where large taxable interests pass outside the will, particularly to persons other than the residuary beneficiary, payment of all taxes from the probate estate residue, without proration or contribution from the other persons who receive such property or interests, may deplete or almost consume it, jeopardizing the security of the residuary devisee or beneficiary of the residuary trust, usually the spouse, and the person whose welfare is generally of chief concern to the testator. In such an estates is involved, a paragraph should be included in the will limiting payments of taxes from the estate residue to probate assets only. The will may go further and include a paragraph requiring that all devisees who receive property under the will also contribute their portion of such taxes. It is also recommended that the will provide that no adjustment is to be made among beneficiaries. This eliminates the possibility that the provision may be interpreted so as to allow a charity who is a residual beneficiary to claim that its part of the residue should be based on the gross amount, before payment of taxes.
Paragraph Seventeen
þReminder: Without a disinheritance provision, pretermitted heirs may be entitled to take an intestate share of the estate. Prob C §§ 6750 et seq.; see§§ 41:441 et seq.
Practice Aids:
Texts: Rights of after-born and pretermitted children and descendants. 64 Cal Jur 3d, Wills §§ 181-189.
Paragraph Eighteen
þReminder: Wills commonly contain a no-contest clause. Such clauses are valid. Prob C § 21303; see §§ 41:551 et seq. However, they are not enforceable as to a contest based on forgery or revocation of the will, Prob C § 21306, or a claim against an interested beneficiary of the will. Prob C § 21307.
Practice Aids:
Texts: Will provisions in the nature of a no-contest paragraph. 64 Cal Jur 3d Wills § 364.
Annotations: Provision of will for forfeiture in case of contest, as applied to contest by one not a beneficiary, 7 ALR2d 1357.
--Construction and effect of will provision releasing or forgiving debt due testator, 76 ALR2d 1020.
--Conclusiveness of testator's statement as to amount of debt or advancement to be charged against legacy or devise, 98 ALR2d 273.
--Right of heir or devisee to have realty exonerated from lien thereon at expense of personal estate, 4 ALR3d 1023.
--What constitutes contest or attempt to defeat will within provision thereof forfeiting share of contesting beneficiary, 3 ALR5th 590.
Paragraph Nineteen
þNote: The executor is the person appointed by the testator to administer the estate. Prob C § 8420. The executor must provide a bond unless the will waives it. Prob C § 8481(a)(1). For additional discussion of executors, see §§ 41:961 et seq.
Practice Aids:
Texts: Appointment, rights, powers, duties, and liabilities of executor. 64 Cal Jur 3d, Wills §§ 220 et seq. 24 Cal Jur 3d, Decedents' Estates §§ 80, 322 et seq.
Paragraph Twenty
þNote: The executor as personal representative of an estate has numerous powers and duties under the Probate Code, plus those specified by the testator. See §§ 41:981 et seq.
þReminder: The executor may be authorized to act under the Independent Administration of Estate Act (Prob C §§ 10400 et seq.), unless the will provides that it cannot be so administered (Prob C § 10404) or limits the executor's power under that Act. Prob C § 10403; for additional discussion, see §§ 41:1011 et seq.
Practice Aids:
Texts: Powers, duties, and liabilities of executor. 24 Cal Jur 3d, Decedents' Estates §§ 80, 322 et seq.; 64 Cal Jur 3d, Wills §§ 230 et seq.
Paragraph Twenty-Two
þObservation: A parent may nominate a guardian of the person or estate, or both, of a minor child if the other parent nominates or consents in writing to the nomination of the same guardian or at the time the petition for appointment of the guardian is filed, either the other parent is dead or lacks legal capacity to consent to the nomination or the consent of the parent would not be required for an adoption of the child. Prob C § 1500; see §§ 41:481 et seq.
þNote: Alternatively, the testator may nominate a custodian for the minor under the Uniform Transfers to Minors Act. Prob C §§ 3900 et seq.; see § 41:484.
Practice Aids:
Texts: Testamentary guardianships. 35 Cal Jur 3d, guardianship and Conservatorship §§ 35 et seq.
Annotations: Function, power, and discretion of court where there is testamentary appointment of guardian of minor, 67 ALR2d 803.
Execution
For discussion of requirements for the execution of a will, see § 41:134.
Attestation
For discussion of attestation requirements, see § 41:135.
Practice Aids:
Texts: Formal requisites relating to execution and attestation of wills. 64 Cal Jur 3d, Wills §§ 107 et seq.
Annotations: Necessity of laying foundation for opinion of attesting witness as to mental condition of testator or testatrix, 17 ALR3d 503.
--Wills: place of signature of attesting witness, 17 ALR3d 705 (sec. 12.5 superseded by Proper execution of self-proving affidavit as validating or otherwise curing defect in execution of will itself, 1 ALR5th 965)..
--Competency, as witness attesting will, of attorney named therein as executor's attorney, 30 ALR3d 1361.
§ 41:201 [SUPPLEMENT] Residuary estate to spouse--Guardianship of minors--Executor to continue business
--
Practice Notes:
Paragraph 4
Note: Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted(Stats 1994 ch 806 § 40, AB 3686)).
Paragraph Seven
Note: Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted (Stats 1994 ch 806 § 40, AB 3686)). As to Prob C § 6176, see now Prob C § 21137.
-- Insert before Prob C § 21306:,or an action to establish the invalidity of any transfer described in Prob C § 21350 (limitations on transfers to drafters and others), or a petition to remove a trustee under Prob C § 15642(b)(6).
§ 41:202 Entire estate to spouse and children--Funeral instructions on file
WILL OF __________ [Testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [Testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Two
Children
1. I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have no deceased children.
3. References in this will to my __________ [child or children] include all the children mentioned in Paragraphs 1 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
Three
Funeral; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Four
Devises
1. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
2. I give all my property, real, personal, or mixed to my spouse and to our children, in equal shares, as they shall agree, or, if they are unable to agree, as my executor may determine.
3. If my spouse does not survive me, I give her share to my children who survive me, or to the issue of any child who does not survive me, by right of representation.
4. If any child of mine does not survive me, his or her share shall be given to his or her issue by right of representation.
5. If any child of mine does not survive me, and such child has no issue, the share which such child would have received shall pass to my remaining children.
6. If my spouse, my children, and issue of my children all fail to survive me, I give all my property, real, personal, or mixed to __________ [alternate heir name], of __________ [alternate heir address].
Five
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Six
Disinheritance
Except as otherwise provided in this will, I have intentionally declined to provide for heirs of mine who may be living at my death, and I direct that such persons, if any, shall take no part of my estate.
Seven
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [executor bank or trust company name], the executor of this will, to serve __________ [without or with] bond.
Eight
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [execution date], at __________ [execution location], California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [Testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:203 Entire estate to spouse--Alternatively to children--Provision for simultaneous death--Cremation
WILL OF __________ [Testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [Testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Two
Children
I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have no deceased children.
3. References in this will to my __________ [child or children] include all the children mentioned in Paragraph 1 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
Three
Funeral and Burial; Disposition of Body
I direct that my funeral be conducted by __________ [funeral conductor name] at __________ [funeral location], and that after the funeral my body be cremated and the ashes placed in an urn and kept at __________ [urn storage address].
Four
Devises to Spouse
1. I give, devise, and devise to my spouse all of my property, real, personal, and mixed, wherever located, and all rights and interests which I may be entitled to devise. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
2. If my spouse does not survive me, then I give all of the above-mentioned property to my children, share and share alike. If any of my children dies before me, the heirs of such deceased child or children shall take by representation and share only in the portion that such deceased child or children would have received had he or she survived me.
Five
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, be paid out of my estate by my executor.
Six
Disinheritance
I have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to provide for my heirs who may be living at the time of my death, including any person or persons who may, after the date of this will, become my heir or heirs by reason of marriage or otherwise.
Seven
Simultaneous Death
If my death and the death of my spouse should occur simultaneously, or in a common accident, or under circumstances that make it difficult to determine who died first, or if my spouse dies within a period of __________ [period within which spouse death presumed before Testator death, up to 6 months] after the date of my death, it shall be presumed that I survived my spouse and my estate shall be disposed of in accordance with such a presumption.
Eight
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Nine
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [execution date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [execution date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See also Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following §§ 41:201, 41:207)
Paragraph Seven
The Probate Code provides certain presumptions as to the passage of property where a beneficiary's right to take depends on surviving a person and there is not clear and convincing evidence that the beneficiary did survive the person. Prob C §§ 220 et seq. see §§ 41:381 et seq. The simultaneous death provisions do not apply to community and quasi-community property of married persons who die simultaneously, Prob C § 103, nor do they apply where the will specifically requires that the devisee or heir survive the testator or take at a specified time. Prob C §§ 6146, 6403. Prob C § 221.
Practice Aids:
Texts: Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Annotations: Wills: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 ALR3d 359.
§ 41:203 [SUPPLEMENT] Entire estate to spouse--Altenatively to children--Provision for simultaneous death--Cremation
Practice Notes:
Paragraph Seven: Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted (Stats 1994 ch 806 § 40, AB 3686)).
§ 41:204 Entire estate to children and grandchildren--Alternatively to spouse, otherwise to parents--Funeral arrangements as directed by spouse or other named person
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Two
Children
1. I have __________ [number off living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have no deceased children.
3. References in this will to my __________ [child or children] include all the children mentioned in Paragraph 1 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
Three
Funeral and Burial; Disposition of Body
I direct that my funeral be conducted according to the instructions of my spouse, or if my spouse does not survive me, according to the instructions of __________ [alternate funeral instructor name], of __________ [alternate funeral instructor address].
Four
Devises
1. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
2. I give all of my property, real, personal, and mixed to my children, in equal shares. If a child of mine does not survive me, I give his or her share to his or her issue by right of representation.
3. If none of my children or issue of my children survive me, then I give all my property, real, personal, or mixed, to my spouse.
4. If my spouse, none of my children, nor any issue of my children survive me, then I give my entire estate to my father, __________ [father name] and mother, __________ [mother name] or to the survivor of either of them. If none of the above-mentioned persons survive me, then my estate shall be distributed to __________ [alternate disposition of estate such as: my heirs as determined by the laws of the State of California relating to descent and distribution].
Five
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Six
Disinheritance
Except as otherwise provided in this will, I have intentionally declined to provide for heirs of mine who may be living at my death, and I direct that such persons, if any, shall take no part of my estate. I intend that such heirs shall inherit all or any part of my estate only on the condition that all the persons mentioned in Sections 2-4 of Paragraph Four of my Will predecease me.
Seven
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Eight
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person of any child of mine who at the time of my death is a minor, to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [execution date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [execution date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:205 Devises to children and stepchildren--Residuary estate to spouse--Will contest provision--Substitution for adeemed devises
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________[spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children and Stepchildren
1. I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have __________ [number of living stepchildren] living stepchildren, the issue of the marriage of my spouse to __________ [name of former spouse of spouse], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
3. I have no deceased children or stepchildren.
4. References in this will to my __________ [child or children] include all the children mentioned in Section 1 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
Four
Property Disposed of by Will
I intend to dispose of all of my property of real, personal or mixed, where ever situated. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
Five
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Six
Devises of Money
1. I give to each of my children who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each child].
2. I give to each of my stepchildren who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each stepchild].
3. I give to __________ [name of optional individual to whom money devised], my __________ [relation to testator of optional individual to whom money devised, such as: uncle or friend], of __________ [address of optional individual to whom money devised], the sum of __________ Dollars ($____) [dollar value devised to optional individual], provided __________ [optional individual he or she] survives me for _____ [number or days beyond testator life devisee must survive to receive money] days.
4. I give to __________ [church or charitable institution, such as: my church, the __________ (name)], the sum of __________ Dollars ($____) [dollar value devised to church or charitable institution].
5. If any one of the devisees mentioned in Sections 1, 2, and 3 of this Paragraph does not survive me for _____ [number of days beyond testator life devisee must survive to receive money] days, then the devise to such person shall lapse and become part of the residue of my estate.
Seven
Devises of Personal Property
1. I give to __________ [such as: my son, __________ (name), of __________ (address), my stamp collection], provided he survives me for _____ [number of days beyond testator life devisee must survive to receive personal property] days.
2. I give to __________ [such as: my daughter, __________ (name), of __________ (address), my oil paintings], provided she survives me for _____ [number of days beyond testator life devisee must survive to receive personal property] days.
3. I give to __________ [such as: __________ (name), of __________ (address), my friend, my hunting and fishing equipment], provided he survives me for _____ [number of days beyond testator life devisee must survive to receive personal property] days.
4. I give to __________ [such as: __________ (name), of __________ (address), __________ (number) shares of stock of __________ (name of corporation) of __________ (state of incorporation)] provided she survives me for _____ [number of days beyond testator life devisee must survive to receive personal property] days.
5. If any of the devisees in Sections 1, 2, 3, and 4 of this Paragraph do not survive me, then the devise to such person shall lapse and become part of the residue of my estate.
Eight
Devises of Real Property
1. I give to __________ [name of real property devisee], my __________ [relationship of real property devisee to testator], of __________ [address of real property devisee] my real property located at __________ [address of devised real property], and more fully described as follows: __________ [legal description of devised real property] together with any insurance on the property in effect and paid for at the time of my death. If __________ [real property devisee he or she] does not so survive me, for _____ [number of days beyond testator life devisee must survive to receive real property] days, then I give that property to __________ [name of alternate real property devisee], my __________ [relationship of alternate real property devisee to testator], of __________ [address of alternate real property devisee], provided __________ [alternate real property devisee he or she] survives me for _____ [number of days beyond testator life devisee must survive to receive real property] days. If __________ [alternate real property devisee he or she] does not so survive me, the devise shall lapse and become part of the residue of my estate.
2. __________ [I direct my executor to pay all taxes on such property due at the time of my death, and to pay the balance of any existing deed of trust note or other encumbrance against the property existing at that time or This gift is subject to all encumbrances on such property at the time of my death, including deeds of trust, and to any taxes or assessments then due on the property].
Nine
Residuary Estate
1. I give the residue of my estate to my spouse, if __________ [spouse he or she] survives me for _____ [number of days beyond testator life devisee must survive to receive residuary estate] days.
2. If __________ [spouse he or she] does not so survive me, I give the residue to such of my children who survive me __________ [if desired, add: for that period of time]. If my spouse and all of my children fail to survive me for _____ [number of days beyond testator life devisee must survive to receive residuary estate] days, I give the residue to those persons surviving me for _____ [number of days beyond testator life devisee must survive to receive residuary estate] days who would be entitled to my property according to the laws of the State of California regarding descent and distribution.
Ten
Ademption
If that I am not the owner, at the time of my death, by reason of having sold or given away, or having lost, destroyed, or otherwise disposed of, any of the items of personal property I have given and devised to the persons named in Paragraph Seven of this Will, then I give to each such person or persons, in lieu thereof, __________ Dollars ($____).
Eleven
Disinheritance
I have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to provide for my heirs who may be living at the time of my death, including any person or persons who may, after the date of this will, become my heir or heirs by reason of marriage or otherwise. I intend that these heirs shall inherit my estate or any part thereof only on condition that my spouse and all of my children fail to survive me.
Twelve
Will Contest
Should any of my beneficiaries in this will contest it in any manner, I revoke any gift to him or her, and direct that his or her share of any gift be disposed of as if he or she had predeceased me.
Thirteen
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [executor bank or trust company address], the executor of this will, to serve __________ [without or with] bond.
Fourteen
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [execution date], at __________[city of execution], California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [name], declared to us that this instrument, consisting of _____ pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
Paragraph Ten
Property a testator gave during lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part only if one of the following conditions is satisfied: (1) the will provides for deduction of the lifetime gift; (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise; or (3) the devisee acknowledges in writing that the gift is in satisfaction. For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first, unless the value is expressed in contemporaneous writing of the testator or in an acknowledgment of the devisee making contemporaneously with the gift. Prob C § 6174. For additional discussion of ademption, see §§ 41:881 et seq.
þNote: If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the devisee is entitled only to as much of the devised securities as is a part of the estate at the time of the testator's death; any additional or other securities of the same entity owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase option; securities of another entity owned by the testator as a result of a merger, consolidation, reorganization or other similar action initiated by the entity; and any additional securities of the entity owned by the testator as a result of a plan of reinvestment if it is a regulated investment company. Distribution before death with respect to a specifically devised security not provided for above are not part of the specific devise. Prob C § 6171.
§ 41:205 [SUPPLEMENT] Devises to children and stepchildren--Residuary estate to spouse--will contest provision--Substitution for adeemed devises
Practice Notes:
Paragraph Ten: Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted (Stats 1994 ch 806 § 40, AB 3686)).
§ 41:206 Devises to children--Two marriages--Joint tenancies--Residuary estate to spouse--Gifts over--Disinheritance
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children
1. I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have __________ [number of living children] living children, the issue of my previous marriage to __________ [former spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
3. I have no deceased children.
4. References in this will to my __________ [child or children] include all the children mentioned in Sections 1 and 2 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
Four
Property Disposed of by Will
I intend to dispose of all of my property real, personal, or mixed where ever situated. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
Five
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Six
Devises to Children
1. I give to each of my children who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each child].
2. I give to my child __________ [first child name], __________ [describe personal property, such as: all my shares of stock in __________ (name of corporation)], provided such child survives me. If such child does not survive me, the devise shall pass to such child's surviving issue, if any. Otherwise the devise shall lapse and become part of the residue of my estate.
3. I give to my child __________ [second child name], __________ [description of property devised to second child], provided such child survives me. If such child does not survive me, the gift shall lapse and become part of the residue of my estate.
4. I give to my children __________ [first child name] and __________ [second child name], as joint tenants __________ [describe real property, such as: a 10-unit apartment building, located at __________ (address), more particularly described as follows: __________ (insert legal description)].
__________ [If desired, add: The above-described property is given subject to all existing encumbrances at the time of my death, including mortgages, deeds of trust, and to any taxes or assessments then due on the property.]
Seven
Devises to Charitable Organizations
1. I give to __________ [charitable organization], located at __________ [charitable organization address], the sum of __________ Dollars ($____) [dollar value devised to charitable organization], but in no event shall this gift exceed __________ percent (____%) [maximum percentage of estate devised to charitable organization] of my distributable estate.
2. If the sum given should exceed such percentage, I direct that this gift be reduced to a sum which will equal such percentage.
Eight
Residuary Estate
1. All the residue of my estate __________ [if appropriate, add: and property over which I may have a power of appointment], I give to my spouse __________ [spouse name], if [she or he] survives me __________ [if desired, add: for _____ (days or months)].
2. If my spouse does not so survive me, I give the residue of my estate __________ [gift over, such as: to my son, __________ (name), who resides at __________ (address), and my daughter, __________ (name), who resides at __________ (address), in equal shares, if they survive me __________ (if desired, add: for _____ days)].
3. If none of those person's survive me I give the residue of my estate to __________ [final alternate disposition of estate according to applicable law such as my heirs at law under the laws of the State of California determined as of the time of my death].
Nine
Disinheritance
Except as otherwise provided in this will, I have intentionally declined to provide for heirs of mine who may be living at my death, and I direct that such persons, if any, shall take no part of my estate.
Ten
Will Contest
Should any of my beneficiaries in this will contest it in any manner, I revoke any gift to him or her, and direct that his or her share of any gift be disposed of as if he or she had predeceased me.
Eleven
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company] the executor of this will, to serve __________ [without or with] bond.
Twelve
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:207 Devises to children and grandchildren--Residuary estate to spouse--Advancements not deductible from devises
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children and Grandchildren
1. I have __________ [number of living children] living children, the issue of my marriage to __________ [name of spouse], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have one deceased child named __________ [deceased child name] who died __________ [date of child death], and who leaves surviving the following __________ [number of living issue of deceased child] children (subsequently referred to as "grandchildren")
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
3. References in this will to my __________ [child or children] include all the children mentioned in Section 1 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse. References in this will to my __________ [grandchild or grandchildren] shall refer to include all the grandchildren mentioned in Section 2 of this Paragraph of my Will and any child or children that may subsequently be born to a child of mine who is not living at the time of my death.
Four
Property Disposed of by Will
I intend to dispose of all of my property of whatever nature and where ever situated.
Five
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Six
Devises to Children and Grandchildren
1. I give to each of my children who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each child].
2. I give to each of my grandchildren who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each grandchild].
3. I give to my child, __________ [child name], my __________ [description of property devised to child], provided [child he or she] survives me for _____ [number of days beyond testator life devisee must survive to receive property] days.
4. I give to my grandchild, __________ [grandchild name], my __________ [description of property devised to grandchild], provided __________ [grandchild he or she] survives me for _____ [number of days beyond which devisee must survive testator to receive property] days.
5. If any of the devisees in Sections 1, 2, 3, and 4 of this Paragraph of my Will do not survive me, then the devise to such person shall lapse and become part of the residue of my estate.
Seven
Residuary Estate
1. All the residue of my estate __________ [if appropriate, add: and property over which I may have a power of appointment], I give to my spouse __________ [spouse name], if __________ [she or he] survives me __________ [if desired, add: for _____ (days or months)].
2. If my spouse does not so survive me, I give the residue of my estate __________ [alternate devisee of residuary estate such as: to my children, both living and deceased, the issue of deceased children to take by right of representation. If any of my children who does not survive me has no issue, such child's share shall pass to my remaining surviving children in equal shares.]
3. If none of the persons named in the preceding Sections 1 and 2 of this Paragraph of my Will survive me, then I give the residue of my estate to __________ [those persons surviving me for _____ (number of days beyond testator death devisee must survive to receive property) days who would be entitled to my property according to the laws of the State of California regarding descent and distribution or as the case may be].
Eight
Advancements
All advancements I may have made, or may subsequently make, to any of my children or grandchildren shall be in addition to, and not in satisfaction of, any devises or other benefit given them by my will.
Nine
Disinheritance
Except as otherwise provided in this will, I have intentionally declined to provide for heirs of mine who may be living at my death, and I direct that such persons, if any, shall take no part of my estate. I intend that these heirs shall inherit my estate or any part thereof, only on the condition that my spouse, all my children, and all my grandchildren fail to survive me.
Ten
Will Contest
Should any of my beneficiaries in this will contest it in any manner, I revoke any gift to him or her, and direct that his or her share of any gift be disposed of as if he or she had predeceased me.
Eleven
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Twelve
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________, California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
§ 41:208 Devises to children, children born before marriage, and parents--Residuary estate to spouse--Devises of void devises
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
1. I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have __________ [number of living children] living children born before my marriage, as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
3. I have no deceased children.
4. References in this will to my __________ [child or children] include all the children mentioned in Sections 1 and 2 of this Paragraph of my Will and any child or children that may subsequently be born out of my marriage to my spouse or adopted by myself and my spouse.
Four
Property Disposed of by Will
I intend to dispose of all of my property of whatever nature and where ever situated.
Five
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Six
Devises to Children
1. I give the sum of __________ Dollars ($____) [dollar amount devised to each child] to each of my children mentioned in Sections 1 of Paragraph Three and to each child who may be subsequently born to or adopted by myself and my spouse.
2. I give to my son, __________ [son name], my __________ [description of property devised to son], provided he survives me for _____ [number of days beyond testator life devisee must survive to receive property] days.
3. I give to my daughter, __________ [daughter name], my __________ [description of property devised to daughter], provided she survives me for _____ [number of days beyond testator life devisee must survive to receive property] days.
4. If a child of mine does not survive me, the share of such child shall be given to his or her issue by right of representation. If any of my children who does not survive me has no issue, such child's share shall pass to my remaining surviving children in equal shares.
5. If none of my children survive me and if no one of my children leaves any issue, then the gifts of property that would have been received by such children shall lapse and form part of the residue of my estate.
Seven
Devises to Children Born Before Marriage
1. I give to my child born before marriage, __________ [name of child born before marriage], the sum of __________ Dollars ($____) [dollar amount devised to child born before marriage], or if such child does not survive me, to __________ [child born before marriage his or her] issue.
2. I give to my child born before marriage, __________ [name of child born before marriage], __________ [description of property devised to child born before marriage], or if such child does not survive me, to __________ [child born before marriage his or her] issue, and if __________ [child born before marriage he or she] has no issue surviving me, the gift of such property shall lapse and become part of the residue of my estate.
Eight
Devises to Parents
1. I give to my father, __________ [father name] and mother, __________ [mother name], of __________ [mother and father address], the sum of __________ Dollars ($____) [dollar value devised to each parent] each.
2. I give to my parents identified in the preceding section of this paragraph, __________ [anticipated form of property ownership by parents, such as, as joint tenants], or to the survivor of either of them, my __________ [description of property devised to parent]. If neither of them survive me, the gift of the above-mentioned money and property shall lapse and become part of the residue of my estate.
Nine
Devises to Charitable Organizations
1. I give to __________ [name of charitable organization], located at __________ [charitable organization address] the sum of __________ Dollars ($____) [dollar value devised to charitable organization] , but in no event shall this gift exceed __________ percent (____%) [maximum percentage of estate devised to charitable organization] of my distributable estate.
2. If the sum given should exceed such percentage, I direct that this gift be reduced to a sum which will equal such percentage.
Ten
Devises of Void Devises
If the devise to any person, organization, or corporation is declared void in whole or in part for any reason, then such void devise, or the void part, shall become part of the residue of my estate and be distributed as such.
Eleven
Residuary Estates
1. All the residue of my estate __________ [if appropriate, add: and property over which I may have a power of appointment], I give to my spouse _________ [spouse name], if [spouse he or she] survives me __________ [if desired, add: for _____ (days or months)].
2. If my spouse does not so survive me, I give the residue of my estate __________ [gift over, such as: to my children, if they survive me __________ (if desired, add: for _____ days)].
3. If any one of my children does not so survive me, then I give his or her share of the residue to his or her lawful descendants living at my death, by right of representation. If any one of my children does not so survive me and dies leaving no lawful descendants living at my death, then I give his or her share to my surviving children, in equal shares.
4. If my spouse, my children, and all my lawful descendants fail to survive me __________ [if desired, add: for _____ (days or months)], I give the residue of my estate to __________ [alternate disposition of residuary estate such as: my heirs as determined by the laws of the State of California relating to descent and distribution].
Twelve
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Thirteen
Taxes
All estate, succession, or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under the terms of this will or otherwise.
Fourteen
Executor
1. I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
2. If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Fifteen
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________, California in the presence of __________ [names of witnesses].
[Signature]
ATTESTATION PARAGRAPH
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
Paragraph Seven
þReminder: Children born out of wedlock and the issue of such persons when appropriate to the paragraph are included in terms of class gift or relationship in accordance with the rules for determining relationship and inheritance rights for purposes of intestate succession. Prob C § 6152; for discussion of the factors that determine whether a parent-child relationship exists, see §§ 41:411 et seq.
§ 41:208 [SUPPLEMENT] Devises to children, children born before marriage, and parents--Residuary estate to spouse--Devises of void devises
Practice Notes:
Paragraph Seven: Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted (Stats 1994 ch 806 § 40, AB 3686)). As to Prob C § 6152, see now Prob C § 21115.
c. WILLS OF MARRIED PERSONS WITHOUT CHILDREN
§ 41:221 Entire estate to spouse--Alternative provisions in event spouse predeceases testator--Disinheritance--Funeral instructions on file
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me. I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
One
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Two
Children
I have no children, living or dead.
Three
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Four
Devises
I give, devise, and devise to my spouse all of my properties, real, personal, and mixed, wherever located, and all rights and interests which I may be entitled to devise. If my spouse does not survive me by __________ [number of days beyond testator life devisee must survive to receive property] days, then I give all of my estate __________ [(alternate disposition of estate such as: to my heirs, to be determined according to the laws of the State of California relating to descent and distribution.)
or
(If my spouse does not survive me, then I give all the rest, residue, and remainder of my estate to __________ (alternate devisee name), of __________ (alternate devisee address) if __________ (alternate devisee he or she) does survives me by __________ (number of days beyond testator life alternate devisee must survive to receive property) days. If he or she does not survive me for that period then I give all of my estate __________ (alternate disposition of estate such as: to my heirs, to be determined according to the laws of the State of California relating to descent and distribution).)]
Five
Debts and Expenses
I direct that all my debts, including funeral expenses and expenses of my last illness, be paid as soon as it is legally possible to do so, provided that no debts barred by the statutes of limitation or discharged in bankruptcy are to be paid.
Six
Disinheritance
I specifically direct that no part of my estate shall be given to __________ [name of excluded individual], of __________ [excluded individual address], __________ [if desired, add: and to the descendants of the above-named person].
Seven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or declines to act as my executor, I nominate and appoint __________ [alternate executor, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of will], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:222 Particular devises--Provisions for spouse--Residuary estate to parents
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children
I have no children living or dead.
Four
Property Disposed of by Will
I confirm to my spouse my spouse's one-half community property interest in all community assets passing under or outside this will. I intend to dispose of all property subject to my testamentary power.
Or
By this will, I intend to dispose of all of the community property belonging to myself and my spouse. It is my desire that my spouse take the assets devised to __________ [spouse him or her] in this will in lieu of __________ [spouse his or her] rights under California laws governing community property.
Five
Funeral and Burial
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Six
Devises in General
I give to __________ [money devisee name], of __________ [money devisee address], if living at the time of my death, the sum of __________ Dollars ($____)[dollar value devised]. If __________ [money devisee name] is not living at the time of my death, I give such sum to __________ [alternate money devisee name].
I give to __________ [personal property devisee name], of __________ [personal property devisee address] if living at the time of my death, the following described personal property: __________ [description of personal property devised]. If __________ [personal property devisee name] is not living at the time of my death, I give such personal property to __________ [alternate personal property devisee name] of __________ [alternate personal property devisee address]. This devise includes any insurance in effect on those properties at the time of my death.
I give and devise to __________ [separate real property devisee name], of __________ [separate real property devisee address], if living at the time of my death, my separate real property situated at __________ [separate real property address], and more fully described as follows: __________ [legal description of separate real property]. If __________ [separate real property devisee name] is not living at the time of my death, I give and devise the real property to __________ [alternate separate real property devisee name] of __________ [alternate separate real property address]. This devise includes any insurance in effect on that property at the time of my death.
Seven
Devises to Spouse
I give to my spouse the sum of __________ Dollars ($____)[dollar value devised to spouse]. If my spouse does not survive me by _____ [number of days beyond testator life devisee must survive to receive money] days, I give the above-specified sum to __________ [in lieu of spouse, money devisee name], of __________ [in lieu of spouse, money devisee address].
I give to my spouse __________ [spouse name], if she survives me by _____ [number of days beyond testator life devisee must survive to receive personal property] days, all articles of household furniture, furnishings, and appliances, books, pictures, silverware, boats, automobiles, clothing, jewelry, and all similar articles of household use and wearing apparel in which I may own any interest at the time of my death. If my spouse __________ [spouse name], does not survive me for that time, I give the above-described property to __________ [in lieu of spouse, personal property devisee name], of __________ [in lieu of spouse, personal property devisee address].
I give to my spouse a life estate, for __________ [spouse his or her] use and benefit during the rest of my spouse's life, in that real property and associated improvements, located at __________ [real property address, of which life estate to spouse] and more fully described as follows: __________ [legal description of real property, of which life estate to spouse]. This devise includes any insurance in effect on that property at the time of my death. On the death of my spouse or in case my spouse does not survive me by _____ [number of years beyond testator life devisee must survive to receive life estate] days, I give the above-described real property to __________ [alternate life estate devisee name], of __________ [alternate life estate devisee address].
Eight
Residuary Estate
I give the rest, residue, and remainder of my estate to my father, __________ [father name] and mother, __________ [mother name], both of __________ [parent address], or to the survivor of either of them. If neither of them survive me, I give the remainder of my estate __________ [alternate disposition of residuary estate such as: to my heirs, to be determined according to the laws of the State of California relating to descent and distribution].
Nine
Debts and Expenses
I direct that all of my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Ten
Taxes
I direct my executor to pay all estate, inheritance, and succession and death taxes assessed by the United States, any state thereof, or any foreign government, against my estate predicated upon my death as the taxable event __________ [source of funds for payment of taxes such as: out of the residue of my estate].
Eleven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [with or without (according to bond status)] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or declines to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
Paragraph Four
Upon the death of a married person domiciled in California, one-half of the decedent's community and quasi-community property belongs to the surviving spouse and the other half belongs to the decedent. Prob C §§ 100, 101.
A spouse is presumed to have only disposed of his or her share of the community property. Estate of Wolfe (1957) 48 Cal 2d 570, 311 P2d 476. If a spouse's will clearly shows an intent to dispose of the whole of the community property, rather than only the spouse's share in the community property, the surviving spouse must elect between taking under the will and taking his or her share of the community property; the surviving spouse cannot do both. Estate of Mader (1970, 2nd Dist) 11 Cal App 3d 409, 89 Cal Rptr 787; for further discussion, see § 41:592.
The intestate share of the surviving spouse in community property is the one-half of the community property that belongs to the decedent under Section 100 of the Probate Code. The intestate share of the surviving spouse in quasi-community property is the one-half of the quasi community property that belongs to the decedent under Section 101 of the Probate Code. Prob C § 6401.
Practice Aids:
Annotations: Priority of surviving spouse who accepts provision of will in lieu of dower or other marital rights over other legatees and devisees and creditors, 2 ALR2d 607.
§ 41:223 Estate to spouse for life or until remarriage--Proceeds from sale of remainder to specified persons
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children
I have no children, living or dead.
Four
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Five
Devises in General
I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse.
I give all of my property, real, personal, or mixed, to my spouse for __________ [spouse his or her] natural life or for so long as my spouse remains unmarried. At the death or remarriage of my spouse, I direct that all of the above-mentioned property shall be sold and the proceeds of such sale be divided equally among the following persons:
Name Residence
__________ __________ [address]
__________ __________ [address]
__________ __________ [address]
Six
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Seven
Taxes
I direct my executor to pay all estate, succession, and death taxes assessed by the United States, any state or subdivision thereof, or any foreign government, against my estate predicated on my death as the taxable event.
Eight
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or declines to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name , bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution] , California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
d. WILLS OF UNMARRIED PERSONS WITH CHILDREN
§ 41:231 Entire estate to children--Alternatively to heirs at law--Disinheritance--Guardianship for minors
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (widow or widower). I was formerly married to __________ (deceased spouse name) who died on __________ (spouse death date).)
or
(I am single. I was formerly married to __________ (ex-spouse name). The marriage was terminated by a __________ (method of marriage termination, such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (marriage termination date), in the __________ (court of marriage termination), State of __________ (state of marriage termination).)]
Two
Children
I have __________ [number of living children] living children, __________ [if applicable, add: the issue of my marriage to __________ (name of former spouse) __________ (who is now deceased or with whom I have been divorced or as the case may be)], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
I have no deceased children.
Three
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Four
Devises
1. I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ [description of property devised to spouse].
or
1. I have intentionally omitted to make provision in this will for any future spouse I might have.
2. I give, devise, and devise all of my properties, real, personal, and mixed, wherever located, and all rights and interests which I may be entitled to devise, to my children, share and share alike, or to the issue of my deceased children by right of representation. If any child of mine predeceases me without leaving issue, his or her share of my estate shall be divided pro rata among the other children. If my children, or the issue of my deceased children, shall be unable to agree among themselves as to the division of my estate, my executor shall divide the same. If I have no surviving children nor surviving issue of any deceased children, __________ [if appropriate, add: nor any surviving spouse] I direct that my estate be distributed to __________ [final alternate disposition of estate such as: my heirs according to the laws of California relating to intestate succession].
Five
Disinheritance
Any provision of this will to the contrary notwithstanding, I specifically direct that under no circumstances shall any part or interest in my estate vest in or be taken by __________ [excluded individual name] of __________ [excluded individual address]. __________ [If desired, add: I specifically disinherit such person because __________ (state reason)].
Six
Taxes
All estate, succession, or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under this will or otherwise.
Seven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Eight
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:232 Devises to children and others--Residuary estate to named child or other specified person--Power of appointment
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (widow or widower). I was formerly married to __________ (deceased spouse name) who died on __________ (spouse death date).)
or
(I am single. I was formerly married to __________ (ex-spouse name). The marriage was terminated by a __________ (method of marriage termination, such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (marriage termination date), in the __________ (court of marriage termination), State of __________ (state of marriage termination).)]
Two
Children
I have __________ [number of living children] living children, __________ [if applicable, add: the issue of my marriage to __________ (name of former spouse) __________ (who is now deceased or with whom I have been divorced or as the case may be)], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
I have no deceased children.
Three
Powers of Appointment
__________ [(If testator desires to exercise any power of appointment, state: I appoint __________ (name) to receive any and all property as to which I have any power of appointment under any will or other instrument.)
or
__________ (If testator does not intend by the will to exercise any power of appointment, state: I do not intend to exercise any power of appointment which I may have.)]
Four
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Five
Devises
1. I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ [description of property devised to spouse].
or
1. I have intentionally omitted to make provision in this will for any future spouse I might have.
2. I give to each of my children who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each child].
3. I give to my son, __________ [son name], my __________ [description of property devised to son], provided he survives me for _____ [number of days beyond testator life devisee must survive to receive property] days.
4. I give to my daughter, __________ [daughter name], my __________ [description of property devised to daughter], provided she survives me for _____ [number of days beyond testator life devisee must survive to receive property] days.
5. I give to __________ [other devisee name], of __________ [other devisee address], __________ [description of property devised to other devisee].
If any one of the devisees mentioned in Sections 2-5 of this Paragraph does not survive me for _____ [number of days beyond testator life devisee must survive to receive property] days, then I give the gift intended for him or her to his or her lawful descendants living at my death. If there be no such surviving lawful descendants then his or her gift shall lapse and shall become part of the residue of my estate.
Six
Residuary Estate
I give the rest and residue of my estate to __________ [residuary devisee name], of __________ [residuary devisee address].
If __________ [name of residuary devisee] does not survive me __________ [if desired, add: __________ for _____ days], then I give the rest of my estate to the issue of __________ [residuary devisee name] who survived me for _____ [number of days beyond testator life devisee must survive to receive residuary estate] days, in equal shares.
If the above-named person does not survive me and has no issue who survives me, I give the residue of my estate to __________ [final alternate disposition of residuary estate such as: my heirs to be determined according to the laws of the State of California relating to intestate succession].
Seven
Taxes
All estate, succession, or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under the terms of this will or otherwise.
Eight
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Nine
Guardian of Minor Children
I appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of mine who at the time of my death is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:233 Devises to specified persons--Life estate to child with remainder to grandchild--Residuary estate to brothers and sisters
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (testator widow or widower). I was formerly married to __________ (deceased spouse name) who died on __________ (spouse death date).)
or
(I am single. I was formerly married to __________ (ex-spouse name). The marriage was terminated by a __________ (method of marriage termination, such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (marriage termination date), in the __________ (court of marriage termination), State of __________ (state of marriage termination).)]
Two
Children and Grandchildren
I have __________ [number of living children] living children, __________ [if applicable, add: the issue of my marriage to __________ (name of former spouse) __________ (status of former spouse such as: who is now deceased or with whom I have been divorce)], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
I have one deceased child named __________ [deceased child name] who died __________ [child death date], and who leaves surviving the following __________ [number of living issue of deceased child] children:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
Three
Funeral and Burial; Disposition of Body
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Four
Devises
I give to __________ [set out general devises, such as:
(1. I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ (describe property).)
or
(1. I have intentionally omitted to make provision in this will for any future spouse I might have.
2. My father, __________ (name), who resides at __________ (address), the sum of __________ Dollars ($____).
3. My child, __________ (name), who resides at __________ (address), the sum of __________ Dollars ($____).
4. My grandchild, __________ (name), son of my deceased __________ (son or daughter) __________ (name), who resides at __________ (address), the sum of __________ Dollars ($____).
5. My child, __________ (name) who resides at __________ (address), a life estate, for her use and benefit during the rest of __________ (his or her) life, in the real property, located at __________ (address) and more fully described as follows: __________ (insert legal description). This devise includes any insurance on such property in effect at the time of my death.)]
On the death of __________ [name of child], or in case __________ [child he or she] does not survive me, I give the above-described property to __________ [name of grandchild], who resides at __________ [grandchild address].
[if appropriate, add: If that any of the persons mentioned in Sections 2-4 of this Paragraph fail to survive me, that person's gift shall form a part of the residue of my estate.]
Five
Residuary Estate
I give the residue of my estate to __________ [disposition of residuary estate such as: my brothers and sisters who survive me for _____ days, share and share alike. If none of my brothers and sisters survives me for that period, I give the residue of my estate to my heirs, to be determined according to the laws of the State of California concerning descent and distribution or as the case may be].
Six
Taxes
All estate, succession, or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under the terms of this will or otherwise.
Seven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:234 Authorizing carrying on of business by executor until child attains specified age--Residuary estate to named child
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (widow or widower). I was formerly married to __________ who died on __________ (date).)
or
(I am single. I was formerly married to __________. The marriage was terminated by a __________ (method of marriage termination, such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (date of maarriage termination), in the __________ (court of marriage termination), State of __________ (state of marriage termination).)]
Two
Children
I have __________ [number of living children] living children, __________ [if applicable, add: the issue of my marriage to __________ (name of former spouse) __________ (who is now deceased or from whom I have been divorced or as the case may be)], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
I have no deceased children.
Three
Funeral and Burial Instructions
I direct that my funeral and burial be conducted according to my written instructions now on file at the __________ [name of mortuary], at __________ [mortuary address]. Those written instructions are incorporated by reference and made a part of this will.
Four
Future Spouse
[(I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ (description of property devised to spouse).)
or
(I have intentionally omitted to make provision in this will for any future spouse I might have.)]
Five
Devises in General
I give to each of my children who survive me for _____ [number of days beyond testator life devisee must survive to receive money] days the sum of __________ Dollars ($____) [dollar value devised to each child].
I give to my child __________ [child name], my business as described in Paragraph Eight below on the terms and conditions stated in that paragraph.
I give to __________ [other devisee name], of __________ [other devisee address], __________ [description of property devised to other devisee].
Six
Devises to Charitable Organizations
I give to __________ [name of charitable organization], located at __________ [charitable organization address], the sum of __________ Dollars ($____) [dollar value devised to charitable organization], but in no event shall this gift exceed __________ percent (____%) [maximum percentage of estate devised to charitable organization] of my distributable estate.
If the sum given should exceed such percentage, I direct that this gift be reduced to a sum which will equal such percentage.
Seven
Residuary Estate
The residue of my estate, excluding property over which I have a power of appointment, I give in equal shares to those of the following who survive me by _____ [number of days beyond testator life devisee must survive to receive property] days: __________ [residuary devisee number 1 name] of __________ [residuary devisee number 1 address]; __________ [residuary devisee number 2 name], of __________ [residuary devisee number 2 address]; and __________ [residuary devisee number 3 name] of __________ [residuary devisee number 3 address]. Should one or more of those beneficiaries not survive that period, then the remaining of those beneficiaries shall share the residue of my estate in equal shares.
If none of the persons mentioned in this Paragraph survives me by _____ [number of days beyond testator life devisee must survive to receive residuary estate] days, then I give the residue of my estate to __________ [final alternate disposition of residuary estate such as: my heirs, to be determined according to the laws of the State of California concerning descent and distribution].
Eight
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Nine
Powers of Executor; Carrying on of Business
I am the owner and __________ [sole proprietor of or partner in] the business known as __________ [name of business] at __________ [address of business], that __________ [nature of business].
If my child __________ [name of child receiving business] has __________ [specify condition under which business is to be given child, such as: completed __________ (his or her) college education or attained the age of __________ or as the case may be], and if such child wishes to carry on such business, then I give my business to such child, together with all property and rights appurtenant thereto. If __________ [child receiving business he or she] will satisfy that condition within __________ [maximum time to fulfill conditions precedent to business acquisition by child] after my death, and if such child wishes to carry on my business, then I direct my executor to continue and carry on my business until such time as my child __________ [description of conditions precedent to business acquisition by child] at which time, I direct that my business and all property and rights appurtenant to it be given to such child.
My executor shall have full power and authority to continue and carry on my business, according to the provisions of this Paragraph of my Will and the Probate Code, and to do all things necessary and proper in the usual course of such business. The carrying on of my business by my executor shall be at the risk of my estate and not at the risk of my executor. Any profits and losses from the business shall be inure to or be chargeable to the business itself or to my estate as a whole, and not to my executor.
If my child __________ [child name], does not predecease me, but does not continue and carry on my business, then I give to such child the sum of __________ Dollars ($____) [dollar value devised to child in lieu of business].
I further direct that until the business is given to my child, any net profits over __________ [the sum of __________ Dollars ($____) or __________ percent (____%) or as the case may be] be divided equally among the following persons:
Name Relationship Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
Ten
Taxes
All estate, inheritance, succession or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under the terms of this will or otherwise. However, any income taxes attributable to the operation of the business described in Paragraph Eight shall be paid first from the income of __________ [the business or my income as partner in the business].
Eleven
Debts and Expenses
I direct my executor to pay all my debts, including general expenses and expenses of my last illness, as soon as it is legally possible to do so, provided that no debts barred by any statute of limitation or discharged in bankruptcy are to be paid.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
Paragraph Eight
þNote: The Probate Code provides for the personal representative to continue operation of the decedent's business if it is to the advantage of the estate and in the best interest of the persons interested in the estate. This authorization only applies to an unincorporated business or venture in which the decedent was engaged or which was wholly or partly owned by the decedent at the time of death, but does not include a partnership in which the decedent was a partner. The personal representative must obtain court approval to operate the decedent's business for more than six months after issuance of letters to the personal representative. Prob C § 9760. Similarly, the court may authorize the personal representative to continue to act as partner in the decedent's place under the conditions authorized by a written partnership agreement or the court's order. Prob C § 9762. For additional discussion, see §§ 41:983 et seq.
e. WILLS OF UNMARRIED PERSONS WITHOUT CHILDREN
§ 41:241 Entire estate to specified relatives or issue--Provision for future spouse--Anatomical dispositions--No funeral services
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (testator widow or widower). I was formerly married to __________ who died on __________ (date).)
or
(I am single. I was formerly married to __________. The marriage was terminated by a __________ (final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (date), in the __________ (court), State of __________.)]
Two
Children
I have no children, living or dead.
Three
Anatomical Dispositions
1. I give my body to the __________ [medical school corpse donee] Medical School __________ [medical school city and state], for the purpose of transplantation, therapy, and medical research, education, or study.
2. If my body is not accepted by that medical school for that purpose, then I direct that my body be cremated and the ashes __________ [disposition, such as: be placed in an urn and kept at __________ (address of urn storage), or specify other disposition].
Four
Funeral
I direct that no funeral services be conducted for me, but that in lieu thereof a memorial service be conducted by __________ [memorial service conductor name], of __________ [memorial service conductor address].
Five
Future Spouse
[(I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ (description of property devised to spouse).)
or
(I have intentionally omitted to make provision in this will for any future spouse I might have.)]
Six
Residuary Estate
I give the rest and residue of my estate to my relatives named below, to be divided equally among them. If they do not agree on how to divide my estate, my executor will divide it in such executor's sole discretion.
Name Relationship Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
If any of the above-named relatives do not survive me by _____ [number of days beyond testator life devisee must survive to receive residue of estate] days, his or her share shall be given to his or her issue, by right of representation.
If any of the above-named relatives do not survive me and die leaving no issue, his or her share shall be given to my relatives listed above or their issue who do survive me, in equal shares.
If all of the above-named relatives and their issue fail to survive me, I give my entire estate to __________ [alternate residuary estate devisee name], who resides at __________ [alternate residuary estate devisee address], or to the issue of such named person by right of representation if __________ [alternate residuary estate devisee he or she] or they survive me by _____ [number of days beyond testator life devisee must survive to receive residuary estate] days.
If none of the persons mentioned in this Paragraph so survives me, then I give the residue of my estate to __________ [final alternate disposition of residuary estate such as: my heirs, to be determined according to the laws of the State of California concerning descent and distribution].
Seven
Debts and Expenses
I direct that all just debts for which timely and proper claims are filed against my estate, and the expenses of my last illness and funeral be paid by my executor as soon after my death as is convenient. However, this direction shall not authorize the payment of any debts or obligations before their maturity in due course, nor does this direction authorize the payment of any debt or obligation which has been barred by the statute of limitations or discharged in bankruptcy proceedings.
Eight
Taxes
All estate, succession, or other death taxes, duties, charges, or assessments, imposed on or in relation to any property by reason of my death, whether passing under this will or otherwise, shall be paid by my executor out of the residue of my estate, without proration of any charge therefor against any person who receives such property under the terms of this will or otherwise.
Nine
Disinheritance
Except as otherwise provided in this will, I have intentionally declined to provide for heirs of mine who may be living at my death, and I direct that such persons, if any, shall take no part of my estate.
Ten
Will Contest
Should any of my beneficiaries in this will contest it in any manner, I revoke any gift to him or her, and direct that his or her share of any gift be disposed of as if he or she had predeceased me.
Eleven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
Twelve
Attorney for Executor
I direct that the law firm of __________ [executor law firm name], of __________ [executor law firm address], be retained by the executor as [executor his or her] attorney.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
On the date last above written __________ [testator name], known to us to be the person whose signature appears at the end of this will, declared to us, the undersigned, that the foregoing instrument, consisting of _____ [instrument page length] pages, including the page on which we have signed as witnesses, was __________ [testator his or her] will. __________ [testator He or She] then signed the will in our presence, and at __________ [testator his or her] request, in __________ [testator his or her] presence and in the presence of each other, we now sign our names as witnesses.
__________ __________
[Signature] [Address]
__________ __________
[Signature] [Address]
__________ __________
[Signature] [Address]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
Paragraph Three
The Uniform Anatomical Gift Act authorizes any individual of sound mind and 18 years of age or more to give all or any part of his or her body for any purpose specified in the Act, the gift to take effect upon death. In addition, the Act specifies certain particular persons to give all or any part of a decedent's body for purposes specified in the statute. H & S C §§ 7150 et seq.; for additional discussion, see §§ 41:331 et seq.
§ 41:242 Entire estate to person furnishing personal services--Alternatively to charity--Exercise of power of appointment
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (testator widow or widower). I was formerly married to __________ (deceased spouse name) who died on __________ (spouse death date).)
or
(I am single. I was formerly married to __________ (ex-spouse name). The marriage was terminated by a __________ (method of marriage termination such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (marriage termination date), in the __________ (court of marriage termination), State of __________ (state of marriage termination).)]
Two
Children
I have no children, living or dead.
Three
Powers of Appointment
I appoint __________ [power of appointment property recipient name], of __________ [power of appointment property recipient address], to receive any and all property as to which I have any power of appointment under any will or other instrument.
Four
Funeral and Burial; Disposition of Body
I direct that my funeral services be conducted at __________ [funeral address], and that my body be buried in the family plot at the __________ [cemetery name] Cemetery at __________ [cemetery address].
Five
Future Spouse
[(I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ (description of property devised to spouse).)
or
(I have intentionally omitted to make provision in this will for any future spouse I might have.)]
Six
Devises
I give all my property, real, personal, and mixed, wherever situated to __________ [devisee caretaker name], who resides at __________ [devisee caretaker address], who has been and is performing the necessary and usual household duties in my home and taking care of and looking after my welfare.
If the above-named person does not survive me by _____ [number of days beyond testator life devisee must survive to receive property] days, I give all my properties to __________ [name of charitable organization], located at __________ [charitable organization address].
Seven
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Eight
Disinheritance
I have intentionally and with full knowledge, omitted to provide for my heirs who may be living at the time of my death, including any person or persons who may become my heir or heirs by reason of marriage or otherwise after the date of the execution of this will.
Nine
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________, California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:243 Entire estate to friend--Alternatively to heirs at law
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (testator widow or widower). I was formerly married to __________ (deceased spouse name) who died on __________ (spouse death date).)
or
(I am single. I was formerly married to __________. The marriage was terminated by a __________ (method of marriage termination such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (date of divorce termination), in the __________ (court of marriage termination), State of __________ (state of marriage termination).]
Two
Children
I have no children living or dead.
Three
Funeral and Burial; Disposition of Body
I direct that my funeral and the disposition of my remains be left to the sole discretion of my friend __________ [funeral organizer name], of __________ [funeral organizer address].
If the above-named person should not survive me, I direct that my funeral and the disposition of my remains be conducted by __________ [name of mortuary], of __________ [mortuary address] __________ [if desired, add: provided that the total cost of my funeral and burial should not exceed __________ Dollars ($____).]
I further direct that a gravestone be erected at the head of my grave with the following words inscribed thereon: __________. I also direct that the total cost of the gravestone should not exceed __________ Dollars ($____).
Four
Future Spouse
[(I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ (describe property).)
or
(I have intentionally omitted to make provision in this will for any future spouse I might have.)]
Five
Devises
I give all the rest of my property, real, personal, and mixed to my good friend, __________ [devisee name], of __________ [devisee address].
If the above-named person does not survive me, I give all my above-mentioned property to __________ [alternate disposition of residuary estate such as: my heirs as determined by the laws of the State of California relating to descent and distribution].
Six
Debts and Expenses
I direct that all my just debts, including the expenses of my last illness and funeral, shall be paid out of my estate by my executor.
Seven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [with or without (according to bond status)] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of will execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See Practice Notes following § 41:201)
§ 41:244 Devises to specified persons--Bequest of interest in partnership--Residuary estate to parents--Settlement of estate with minimum court intervention
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament, and revoke all previous wills and codicils made by me.
One
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (widow or widower). I was formerly married to __________ who died on __________ (date).)
or
(I am single. I was formerly married to __________. The marriage was terminated by a __________ (method of marriage termination such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (date of marriage termination), in the __________ (court of marriage termination), State of __________ (state of marriage termination).)]
Two
Children
I have no children, living or dead.
Three
Funeral and Burial; Disposition of Body
I direct that my funeral be conducted by __________ [funeral conductor] at __________ [funeral address], and that my body be buried in the family plot in the __________ [cemetery name] Cemetery at __________ [funeral address], __________ [provided that the total cost of my funeral and burial is not to exceed __________ Dollars ($____)].
I further direct that a gravestone, __________ [not exceeding the total cost of __________ Dollars ($____)], be erected at the head of my grave with the following words inscribed thereon: __________ [gravestone inscription].
Four
Future Spouse
[(I give to the person who, at the time of my death, is my lawfully wedded spouse, __________ (describe property).)
or
(I have intentionally omitted to make provision in this will for any future spouse I might have.)]
Five
Devises in General
__________ [Set forth general devises, such as:
I give to __________ (name), of __________ (address), the sum of __________ Dollars ($____).
I give to __________ (name), of __________ (address), __________ (describe property).]
If any of the devisees mentioned in the above Paragraphs of this paragraph do not survive me for _____ days, then I give the gift given to him or her to his or her lawful descendants living at my death. If there be no such surviving lawful descendants then his or her gift shall lapse and such gift shall become part of the residue of my estate.
Six
Bequest of Partnership Interest
I give all rights and interest which I may own at the time of my death in a partnership known as __________ [partnership name], whose principal place of business is located at __________ [partnership address], to __________ [partnership devisee name], of __________ [partnership devisee address]. If the above-named person does not survive me, the above-described interest shall become a part of the residue of my estate.
Seven
Residuary Estate
I give all the rest, residue, and remainder of all my property, real, personal, and mixed to my father __________ [father name] and mother __________ [mother name], of __________ [parent address], to be divided equally between them, share and share alike, or to the survivor of either of them. If they cannot agree as to the division, my executor shall determine the division.
If neither my father nor mother survives me, I give the residue of my estate to __________ [alternate residuary estate devisee name], __________ [alternate residuary estate devisee address] or to such person's descendants. If __________ [alternate residuary estate devisee he or she] or they do not survive me I give all my residuary estate to __________ [final alternate disposition of residuary estate such as my heirs as determined by the laws of the State of California relating to descent and distribution].
Eight
Debts and Expenses
I direct that all my just debts, including the expenses of my funeral, shall be paid out of my estate by my executor.
Nine
Taxes
I direct my executor to pay all estate, inheritance, succession, and death taxes assessed by the United States, any state or subdivision thereof, or any foreign government, against my estate predicated upon my death as the taxable event.
Ten
Disinheritance
I have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to provide for my heirs who may be living at the time of my death, including any person who may become my heir or heirs by reason of marriage or otherwise after the date of the execution of this will.
Eleven
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify or is unwilling to act as my executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following § 41:201)
Practice Notes:
(See also Practice Notes following § 41:201)
Clause Six
For discussion of the devise of a partnership interest, see the Practice Notes following § 41:714. For discussion of the executor's right to act as partner in the decedent's partnership, see § 41:984.
3. WILLS MADE PURSUANT TO CONTRACT; JOINT AND MUTUAL WILLS
§ 41:251 Generally
Wills may be made pursuant to a contract.49 Frequently, such a contract will take the form of an agreement by two related individuals to make joint or mutual wills. A joint will is a single testamentary instrument constituting or containing the wills of two or more persons, and jointly executed by them as their respective wills.50 Joint wills are different than mutual wills, sometimes called reciprocal wills.51 Mutual wills are separate wills, frequently used by spouses, in which each testator makes a testamentary disposition in favor of the other,52 or in favor of the survivor among them and of their respective relatives.53 Mutual or reciprocal inheritance may also be accomplished by a joint will.54
Other forms of will made pursuant to contract are a will made subsequent to a waiver of rights signed before or during marriage55 and a will made pursuant to a contract by which the will beneficiary provides lifetime services or other consideration to the testator.56
A joint will may serve both as a will and as a contractual agreement not to revoke the will. Generally, however, a joint will may be revoked by any of the testators in the same manner as any other will.57
The Probate Code provides that a contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if made after December 31, 1984, can be established only by one of the following: (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual will does not create a presumption of a contract not to revoke the will or wills.58
The testator of a will made pursuant to contract generally may revoke the will and breach the contract. If so, the testator's estate is probated without regard to the terms of the contract. However, a court will enforce the contract by imposing a constructive trust on the estate assets in the hands of the beneficiaries of the estate.59
Footnote 49. Estate of Watson (1986, 4th Dist) 177 Cal App 3d 569, 223 Cal Rptr 14.
For discussion of such contracts, see §§ 41:101 et seq.
Practice Aids:
Legal Periodicals: The federal transfer tax consequences of joint and mutual wills. 24 Real Prop, Prob & Trust J 469 (1990).
Footnote 50. Daniels v Bridges (1954) 123 Cal App 2d 585, 267 P2d 343; Van Houten v Whitaker (1959, 2nd Dist) 169 Cal App 2d 510, 337 P2d 900.
Footnote 51. Brown v Superior Court of Los Angeles County (1949) 34 Cal 2d 559, 212 P2d 878.
Footnote 52. Re Estate of Patterson (1923) 64 Cal App 643, 222 P 374, error dismd 266 US 594, 69 L Ed 458, 45 S Ct 225; Daniels v Bridges (1954) 123 Cal App 2d 585, 267 P2d 343.
Footnote 53. Notten v Mensing (1935) 3 Cal 2d 469, 45 P2d 198.
Footnote 54. Re Estate of Learned (1909) 156 Cal 309, 104 P 315; Rolls v Allen (1928) 204 Cal 604, 269 P 450; Brewer v Simpson (1960) 53 Cal 2d 567, 2 Cal Rptr 609, 349 P2d 289 (the makers of a joint and mutual will have the right to provide that all of the property owned by the survivor at death shall pass under their will).
A joint and mutual will has been defined as one instrument executed jointly by two or more persons, the provisions of which are reciprocal. Daniels v Bridges (1954) 123 Cal App 2d 585, 267 P2d 343; Thompson v Boyd (1963, 1st Dist) 217 Cal App 2d 365, 32 Cal Rptr 513; Estate of Mulholland (1971, 3rd Dist) 20 Cal App 3d 392, 97 Cal Rptr 617.
Footnote 55. Prob C §§ 140 et seq.
For property settlement and pre-marital agreements, see Husband and Wife (Ch 37).
Footnote 56. See, for example Estate of Reynolds (1949) 94 Cal App 2d 851, 211 P2d 608.
Footnote 57. See Prob C § 150(b); Daniels v Bridges (1954) 123 Cal App 2d 585, 267 P2d 343.
Footnote 58. Prob C § 150.
Footnote 59. Stahmer v Schley (1979, 2nd Dist) 96 Cal App 3d 200, 157 Cal Rptr 756.
þNote: This remedy is also known as "quasi-specific performance." An agreement between a husband and wife to make mutual wills did not lack the fairness required for quasi-specific performance merely because it called for the mutual wills to dispose of all of the property of either party, irrespective of its separate or community character. Brewer v Simpson (1960) 53 Cal 2d 567, 2 Cal Rptr 609, 349 P2d 289.
For additional discussion, see § 41:102.
§ 41:252 Form drafting principles
A mutual or reciprocal will, which is the testator's separate will executed pursuant to an agreement, may be drafted in the same form as a separate will not executed pursuant to an agreement. A joint will, which is the will of two or more persons contained in a single instrument that is jointly executed pursuant to an agreement, is subject to the same requirements as are wills in general, with the exception that the attestation paragraph of the joint will must be in the plural to include all the testators.60
Footnote 60. For checklists of matters to be considered when drafting a will, see § 41:173.
þRecommendation: Since the parties, by executing mutual wills or a joint will, intend to be contractually bound to the agreed disposition, it is recommended that the wills be drafted so as to include express internal references to the material provisions of the underlying contract. For a form of such provision, see § 41:276.
§ 41:253 Separate mutual will--By spouse pursuant to agreement with other spouse--Entire estate to survivor and to children on death of survivor
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Revocation of Prior Will and Codicils
I revoke all previous wills and codicils.
Two
Marital Status; Spouse's Name
I am married. My spouse's name is __________ [spouse name]. All references in this will to my "spouse" are to __________ [spouse him or her].
Three
Children
I have __________ [number of living children] living children, the issue of my marriage to __________ [spouse name], as follows:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
I have no deceased children.
The terms "child" and "children" as used in this will, include the children mentioned herein, any children of the marriage subsequently born, and any children subsequently adopted by the parties to this marriage.
Four
Consideration for Will
This will is made in consideration of an agreement between myself and my spouse to make mutual wills, which agreement was executed on __________ [mutual will agreement date], at __________[mutual will agreement city], California, each leaving __________ [each party to mutual will agreement his or her] property to the survivor, and each agreeing that the survivor leave __________ [each party to mutual will agreement his or her] property to the children of our marriage, share and share alike.
Five
Bequest and Devises
I confirm to my spouse, my spouse's one-half community property interest in all assets passing under or outside of this will. I intend that this will dispose of all my separate property, my quasi-community property, if any, and my one-half interest in the community property of myself and my spouse. I give all my estate, whether consisting of real or personal property, or both, to my spouse, provided __________ [spouse he or she] survives me for _____ [number of days beyond testator life divisee must survive to receive property] days. If __________ [spouse he or she] does not so survive me, I give my entire estate in equal shares to my children. The heirs and representatives of any child who fails to survive me are to take by representation and share only in the portion the deceased child would have received had he or she been alive.
Six
Disinheritance
I have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to provide for my heirs who may be living at the time of my death, including any person who may become my heir or heirs by reason of marriage or otherwise after the date of the execution of this will.
Seven
Executor
I nominate and appoint my spouse, who resides at __________ [spouse address], as the executor of this will, to serve without bond.
If my spouse does not survive me, or if __________ [spouse he or she] does not qualify as such executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See also Tax Notes following § 41:201)
þCaution: Use of a mutual or joint will causes the estate of the first spouse to die to be included for purposes estate taxation and probate expenses in the surviving spouse's estate. This result can be avoided, while still giving the surviving spouse the benefit of the deceased spouse's estate by use of a QTIP trust will. For additional discussion, see Trusts (Ch 42).
Tax References:
Legal Periodicals: Benefits of joint, mutual, or reciprocal wills are often outweighed by their tax drawbacks. 5 Taxation for Lawyers 218.
Paragraph Five
Limiting the period of necessary survival to take under the will to 6 months preserves the terminable interest of the spouse necessary to take advantage of the marital deduction for federal estate tax purposes. 26 USCS § 2056(b)(3); 26 CFR § 20.2056(b)-3. If the sequence of deaths can be determined and one spouse survives the other for only a brief period, the estate will be entitled to the marital deduction. However, the will can condition the marital deduction devise to the surviving spouse on survival for a specified period. If the spouse survives the period, the property will go to him or her and the estate gets the marital deduction, provided the specified survival period does not exceed 6 months, see 26 USCS § 2056(b)(3).
Practice Notes:
(See also Practice Notes following § 41:201)
Paragraph Four
þNote: A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if made after December 31, 1984, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. Prob C § 150.
§ 41:254 Single person's will--Executed pursuant to agreement--Entire estate to person furnishing personal services
WILL OF __________ [testator full name]
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if applicable, add: formerly known as __________ (maiden name)], residing at __________ [testator address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my last will and testament.
One
Revocation of Prior Wills and Codicils
I revoke all previous wills and codicils.
Two
Marital Status
[(I am single and have never been married.)
or
(I am a __________ (testator widow or widower). I was formerly married to __________ (deceased spouse name) who died on __________ (spouse death date).)
or
(I am single. I was married to __________ (ex-spouse name). The marriage was terminated by a __________ (method of marriage termination such as: final divorce decree or judgment of dissolution of marriage or decree of annulment) entered on __________ (marriage termination date), in the __________ (court of marriage termination) Court of __________ (city of marriage termination), State of __________ (state of marriage termination).)]
Three
Children
I have no children, living or dead.
Four
Property Disposed of by Will
I intend by this will to dispose of all my property, real, personal, and mixed, including any and all property of whatever nature acquired after the execution of this will, wherever situated.
Five
Consideration for Will
This will is executed pursuant to a written agreement entered into at __________ [agreement execution address], California on __________ [agreement execution date], between myself and __________, [name of promisee] in which we agreed that __________ [name of promisee] would __________ [for example: care for me, perform the necessary and usual household duties, and look after my general welfare and comfort for the remainder of my life, in consideration of my promise to devise my entire estate to __________ (promisee him or her)].
Six
Devises in General
I give all my estate, whether consisting of real or personal property, or both, to __________ [name of promisee]. If __________ [name of promisee] does not survive me by __________ [number of days beyond testator life devisee must survive to receive property] days, I give all my estate to __________ [alternate devisee name ] of __________ [alternate devisee address].
Seven
Disinheritance
I have intentionally omitted to provide for any future spouse I might have in this will.
Eight
Executor
I nominate and appoint __________ [executor name], who resides at __________ [executor address], as the executor of this will, to serve __________ [without or with] bond.
If __________ [name of executor] does not survive me, or if __________ [executor he or she] does not qualify as such executor, I nominate and appoint __________ [alternate executor name, bank or trust company], of __________ [executor bank or trust company address], or any successor or assign of that __________ [alternate executor name, bank or trust company], the executor of this will, to serve __________ [without or with] bond.
I executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signature]
Attestation Paragraph
On the date written below, the testator, __________ [testator name], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was __________ [testator his or her] will and requested that we witness it. The testator then signed the instrument in our presence, all of us being present at the same time. At the testator's request, and in the presence of the testator and the other witnesses, each of us subscribes his or her name as witnesses.
__________ [Add, if desired: We believe that the testator is over the age of 18, is of sound mind, and is not acting under duress or undue influence].
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See also Tax Notes following §§ 41:201, 41:253).
A devise received as compensation for personal services constitutes taxable income to the recipient. See Rev Rul 67-375 CB 1967-2.
Practice Notes:
(See also Practice Notes following §§ 41:201, 41:253)
Practice Aids:
Texts: Agreement to make a will or to devise property in exchange for services. 64 Cal Jur 3d, Wills § 225.
Annotations: Remedies during promisor's lifetime on contract to convey or will property at death in consideration of support or services, 7 ALR2d 1166.
--Testamentary devise or bequest conditioned upon beneficiary's supporting or rendering services to named person as providing for condition subsequent or precedent, 25 ALR3d 762.
For a form of a contract to make will leaving an estate to one furnishing personal services, see § 41:112.
§ 41:255 Joint and mutual will--By spouses--Will not made pursuant to agreement--Entire estate to survivor or to children on death of survivor--Reservation of right to revoke
WILL OF __________ [testator number 1 full name] and __________ [testator number 2 full name]
We, __________ [name of husband], __________ [if known by other names, add: also known as: __________], and __________ [name of wife], __________ [if applicable: formerly known as __________ (maiden name)], husband and wife, respectively, residing at __________ [testators address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be our last will and testament.
One
Revocation of Prior Will and Codicils
We revoke all previous wills and codicils made by us, or either of us.
Two
Children
We have __________ [number of children] children the issue of our marriage. The children are:
Name Birth Date Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
All of the above-mentioned children are living. We have no deceased children.
The terms "child" and "children" as used in this will include the children mentioned above, any children born subsequently of whom we are the parents, and any other children we may subsequently adopt.
Three
Funeral and Burial; Disposition of Body
We direct that each of us be buried in the family plot in the __________ [cemetery name] Cemetery at __________ [cemetery address].
Four
Absence of Agreement to Make Will
Each of us declare that the dispositive provisions in this will providing for mutual and reciprocal devises are not made pursuant to any agreement between us or for any consideration.
Five
Reservation of Right to Revoke
Each of us reserves to ourselves the right to revoke this will, without notice to the other, under any and all circumstances, and irrespective of the death of the other.
Six
Devise to Spouse
Each of us gives to the other all property of whatever kind and nature, which we may own or possess or to which we may be entitled, intending thereby that the survivor of us shall be entitled to all that either of us owns and possesses.
Seven
Beneficiaries After Death of Surviving Spouse in Case of Simultaneous Death
Following the death of the survivor of us or if both of us die in a common accident or disaster, we give all the rest, residue, and remainder of our property, of whatsoever kind and nature, which we may own or possess or to which we may be entitled to our children in equal shares. If any child should predecease us, leaving issue, that child's issue shall take by right of representation. If the predeceased child leaves no issue, that child's share shall be divided equally among the surviving children and the predeceased children who left issue.
Eight
Debts and Expenses
We direct that all our debts not barred by the statutes of limitation or discharged in bankruptcy proceedings, expenses of our last illness, and funeral and burial expenses be paid as soon as is legally possible after our respective deaths.
Nine
Disinheritance
We have, except as otherwise provided in this will, intentionally and with full knowledge, omitted to provide for our heirs who may be living at the time of our death, including any person or persons who may become our heir or heirs by reason of marriage or otherwise after the date of this will.
Ten
Executor
We nominate and appoint the survivor of us, the executor of our will to serve without bond. If that we shall die in a common accident or disaster, we nominate and appoint __________ [executor name], of __________ [executor address], as executor of our will.
Eleven
Guardian of Minor Children
We appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of ours who at the time of the death of the survivor of us is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
Each of us executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city of execution], California in the presence of __________ [names of witnesses].
[Signatures]
Attestation Paragraph
On the date written below, the testators, __________ [testator names], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was their will and requested that we witness it. The testators then each signed the instrument in our presence, all of us being present at the same time. At the testators' request, and in the presence of the testators and the other witnesses, each of us subscribes his or her name as witnesses.
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following §§ 41:201, 41:253).
Practice Notes:
(See also Practice Notes following §§ 41:201, 41:253)
þCaution: Use of a mutual will is not recommended as the will must be submitted to probate on the death of the first testator and then resubmitted on the death of the second. It is preferable to have each party execute a separate will, with reciprocal provisions.
§ 41:256 Joint and mutual will--By spouses pursuant to agreement--Entire estate to survivor and to children on death of survivor--Agreement not to revoke or alter will
WILL OF __________ [testator number 1 full name] and __________ [testator number 2 full name]
We, __________ [name of husband], __________ [if known by other names, add: also known as: __________], and __________ [name of wife], __________ [if applicable: formerly known as __________ (maiden name)], husband and wife, respectively, residing at __________ [testators address], being of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be our last will and testament.
One
Revocation of Prior Wills and Codicils
We revoke all previous wills and codicils made by us, or either of us.
Two
Children
We have __________ [number of children] children, the issue of our marriage. The children are:
Name Birth Date Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
All of the above-mentioned children are living. We have no deceased children.
The terms "child" and "children" as used in this will include the children mentioned herein, any children born subsequently of whom we are the parents, and any children we may subsequently adopt.
Three
Consideration for Will
This will is made pursuant to a written agreement between us, __________ [written mutual will agreement date], by which it was mutually agreed that we would execute a joint and mutual will, leaving to the survivor all property, real and personal, of the party first to die, and on the death of the survivor, leaving all of his or her property to our children in equal shares.
Four
Devises
Subject to the provisions of Paragraph Seven of this will, each of us devises to the survivor of us, absolutely and in fee simple, all the property, real, personal, or mixed, which either or both of us may own or have any interest in at the death of first of us to die.
Five
Beneficiaries Following Death of Survivor
It is our will, and we so direct, that on the death of the survivor of us, all of his or her property, real, personal, or mixed, shall be divided among our children equally, share and share alike. If any child or children predeceases the survivor of us, the heirs and representatives of such deceased child or children shall take by representation and share only in the portion the child would have received had he or she survived.
Six
Disinheritance
We have intentionally omitted to make provision in this will for any future spouse which either one of us might have.
Seven
Simultaneous Death
If we die simultaneously in a common accident, or if we die within _____ [number of days following first testator death, second testator death considered simultanious] days of one another, whether from a common accident or not, the dispositive provisions of Paragraph Four shall be inoperative and all our property whether owned jointly or severally shall pass under the provisions of Paragraph Five.
Eight
Agreement Not to Revoke or Alter
We each promise and agree not to make any will or codicil different from this will after the death of either of us, and that this will cannot be changed or varied by either of us without the consent in writing of the other. If our marriage is annulled or we become divorced, the annulment or divorce __________ [will or will not] revoke this will or any of the dispositions of property made by this will.
Nine
Executor
We appoint the survivor of us executor of this will and direct that no bond or other form of security be required of the survivor by reason of his or her acting in such capacity.
We appoint __________ [executor name], of __________ [executor address], executor of this will, to serve without bond, when the survivor of us dies or if our deaths occur simultaneously, or in such proximity so as to preclude the survivor of us from acting in that capacity, or if the survivor of us is otherwise unable or unwilling to serve as executor.
Ten
Guardian of Minor Children
We appoint __________ [guardian name], __________ [guardian address], as the guardian of the person and property of any child of ours who at the time of the death of the survivor of us is a minor, the guardian to serve __________ [with or without (according to bond status)] bond.
Each of us executed this will, consisting of _____ [will page length] pages, on __________ [form date], at __________ [city o execution], California in the presence of __________ [names of witnesses].
[Signatures]
Attestation Paragraph
On the date written below, the testators, __________ [testator names], declared to us that this instrument, consisting of _____ [instrument page length] pages, including this page, __________ [add if applicable: and including the interlineations on pages _____ and _____], was their will and requested that we witness it. The testators then each signed the instrument in our presence, all of us being present at the same time. At the testators' request, and in the presence of the testators and the other witnesses, each of us subscribes his or her name as witnesses.
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
__________, residing at __________
[Signature] [address]
We declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on __________ [form date], at __________ [city of execution], California.
[Signature] [Signature] [Signature]
Tax Notes:
(See Tax Notes following §§ 41:201, 41:253).
Practice Notes:
(See also Practice Notes following §§ 41:201, 41:253)
þCaution: Use of a mutual will is not recommended as the will must be submitted to probate on the death of the first testator and then resubmitted on the death of the second. It is preferable to have each party execute a separate will, with reciprocal provisions.
þReminder: Unless a will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision of the will conferring a general or special power of appointment on the former spouse, any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian. Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator. Other provisions of the will conferring power or office on the former spouse are to be interpreted as if the former spouse failed to survive the testator. Prob C § 6122.
VI. INTRODUCTORY PROVISIONS
A. CAPTIONS
§ 41:261 General form
WILL OF __________ [testator full name]
§ 41:262 Alternate form
LAST WILL AND TESTAMENT OF __________ [testator full name]
§ 41:263 Joint will
WILL OF __________ [testator number 1 full name] and __________ [testator number 2 full name]
B. INTRODUCTORY PARAGRAPHS
§ 41:271 Basic form
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if appropriate for wife's will, add: formerly known as __________ (maiden name)], residing in __________ [testator city or county], California, declare this to be my will.
Tax Notes:
Residence is important for federal estate tax purposes, since it may determine an alien's tax liability and play a role in applying present and future tax treaties. For state death tax purposes, the residence question is of basic importance, and it may affect the amount of credit available for state death taxes, See §§ 41:52.
Practice Notes:
þRecommendation: Inclusion of all names by which the testator has been known may aid the personal representative in finding property belonging to the testator and held in a former name. It also aids in distinguishing property held by the testator from those held by persons with similar names. It can also be an aid where the testator did not use his or her given name in daily affairs.
Practice Aids:
Texts: Manner of expressing intent to make a will. 64 Cal Jur 3d, Wills §§ 25-27.
§ 41:272 Statement of testator's capacity
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if appropriate for wife's will, add: formerly known as __________ (maiden name)], residing in __________ [testator city or county], California, being of sound and disposing mind, declare this to be my will.
Practice Notes:
þReminder: Although commonly used in wills, the language as to the testator being of sound and disposing mind or similar language indicating that the testator has capacity to make a will is not necessary and will not affect a subsequent determination that the testator lacked this capacity. See Estate of Sanderson (1959, 4th Dist) 171 Cal App 2d 651, 341 P2d 358.
§ 41:273 Negating duress, menace, fraud, or undue influence
I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if appropriate for wife's will, add: formerly known as __________ (maiden name)], residing in __________ [testator city or county], California, and not acting under duress, menace, fraud, or undue influence of any person, declare this to be my will.
Practice Notes:
þComment: Execution of a will or part of a will is ineffective to the extent it was procured by duress, menace, fraud or undue influence. Prob C § 6104. This language may be reassuring to a testator. However, it is unlikely that the statement negating the existence of improper influences would be given much effect if the will is contested since the testator would be unaware of successful fraud or undue influence and evidence of duress or menace could be admitted despite the statement.
Practice Aids:
Texts: Effect of undue influence and fraud. 64 Cal Jur 3d, Wills §§ 73 et seq.
§ 41:274 Introduction with traditional Christian sentiments
In the name of God, Amen, I, __________ [name of testator], __________ [if known by other names, add: also known as: __________], __________ [if appropriate for wife's will, add: formerly known as __________ (maiden name)], residing in __________ [testator city or county], California, residing in __________ [testator city or county], California, being in good health and of sound and disposing mind, but realizing the uncertainty of life and the inevitability of death, commit my soul unto the hands of the Almighty Father and trusting in His infinite goodness and mercy, make and declare this to be my last will.
Practice Notes:
(See Practice Notes following § 41:271)
§ 41:275 Negating contract affecting right to make will
There is no contract that affects my right to make this will or to revoke any prior will of mine. __________ [Add, if applicable: Any similarity between the provisions of this will and that of my spouse executed concurrently with this will are not the result of any contract between us].
Practice Notes:
For discussion of will contracts, generally, see §§ 41:101 et seq.
§ 41:276 Statement that will is made pursuant to contract
This will is made pursuant to a __________ [contract or property settlement agreement or premarital agreement] entered into between myself and __________ [other party to contract name], on __________ [contract execution date], under which I agreed to __________ [description of contract provisions].
Practice Notes:
For discussion of will contracts, generally, see §§ 41:101 et seq.
§ 41:277 Revocation of prior wills and codicils
I revoke any and all wills and codicils that I have previously made.
Practice Notes:
þNote: A will or any part thereof can be revoked by a subsequent will which revokes the will or part expressly or by inconsistency. Prob C § 6120. For discussion of revocation of wills, generally, see §§ 41:1221 et seq.
þRecommendation: Express revocation of prior wills and codicils is preferred as it avoids a court having to determine the existence and extent of an inconsistency between two wills.
Practice Aids:
Texts: Revocation of will. 64 Cal Jur 3d, Wills §§ 152 et seq.
Annotations: Wills: revocation as affected by invalidity of some or all of the dispositive provisions of later will, 28 ALR2d 526.
--Implied revocation of will by later will or codicil, 59 ALR2d 11.
--Revocation of will as affecting codicil and vice versa, 7 ALR3d 1143.
--Revocation of will by nontestamentary writing, 22 ALR3d 1346.
C. CONDITIONAL OR CONTINGENT WILL
§ 41:281 General paragraph
This will is conditioned on __________ [conditions precedent of will] and is to take effect only on the happening of that event. __________ [Add, if applicable: Unless and until that even occurs my will dated __________ will remain in full force and effect].
Practice Notes:
A will may validly be made conditional by its own terms and will be admitted or denied probate in conformity with the condition. Prob C § 6105.
Practice Aids:
Texts: Conditional or contingent wills. 64 Cal Jur 3d, Wills §§ 358 et seq.
Annotations: Determination whether will is absolute or conditional, 1 ALR3d 1048.
--Validity and construction of testamentary gift conditioned upon beneficiary's remaining married, 28 ALR3d 1325.
§ 41:282 Will conditioned on testator's death during trip
I declare that I am planning to take a trip to __________ [trip destination] on __________ [trip date]. This will is to take effect and be considered as my last will only if that I die during this trip. For the purpose of this will, the trip will be deemed to commence when I leave my residence in __________ [testator city or county], California to travel to the __________ [trip destination] and will be deemed to terminate and be of no force or effect when I return to that residence.
Practice Notes:
(See Practice Notes following § 41:281)
§ 41:283 Will conditioned on testator's death during or failure to recover from surgery
This will is to take effect and be considered as my last will only if that I die during my contemplated surgical operation for __________ [type of surgery], scheduled for __________ [surgery date], at __________ [hospital name], at __________ [hospital address], or within _____ [number of days after surgery within which death will invoke will] days thereafter from complications from that surgery.
Practice Notes:
(See Practice Notes following § 41:281)
D. DECLARATION OF MARITAL AND FAMILY STATUS
§ 41:291 Purpose of declaration
A declaration as to the testator's marital and family status is not legally necessary but indicates that the testator can remember and understand the testator's relations to living descendants, spouse, and parents and those whose interests are affected by the will which helps to indicate that the testator is mentally competent to make a will.61 and may prevent application of the omitted child statutes.62
þCaution: To avoid application of the omitted child statutes, the testator should follow the definition of child under the Probate Code,63 which is broader than that commonly used. It includes halfblood children64 and adopted children, children born out of wedlock, foster children, and stepchildren in certain circumstances.65
If the testator has minor children by a prior marriage, the other parent of the children should be identified. Additionally, a statement as to the address of adult children may help locate them after the testator's death.
Footnote 61. Prob C § 6100.5(a)(1).
Footnote 62. Prob C § 6572 et seq.; for further discussion, see §§ 41:441 et seq.
Footnote 63. Prob C § 26; for further discussion of definition provisions, see §§ 41:411 et seq.
Footnote 64. Prob C § 6406.
Footnote 65. Prob C § 6408.
§ 41:291 [SUPPLEMENT] Purpose of declaration
--n 65
Prob C § 6408 was repealed in 1993 and replaced by Prob C §§ 6450-6455, added in 1993, defining the parent-child relationship.
§ 41:292 Married testator
I am married to __________ [spouse name], and any reference in this will to my "spouse" is to __________ [spouse him or her].
§ 41:293 Testator never married
I am not and have never been married.
§ 41:294 Testator a widow or widower
I am not currently married. I was married to __________ [deceased spouse name] who died during our marriage on __________ [spouse death date].
Practice Notes:
þNote: Including the date of the spouse's death aids in obtaining information as to the spouse's estate, in determining the credit for prior transfers (26 USCS § 2013) and in determining the tax status of property that passed from the spouse.
§ 41:295 Testator divorced or marriage annulled
I am not married. I was married to __________ [ex-spouse name]. That marriage was terminated by a final judgment of __________ [annulment or dissolution], entered on __________ [marriage termination date], in action No. _____ [marriage termination action No.], before __________ [court of marriage termination].
Practice Notes:
þCaution: A person is considered married until a final judgment terminating the marriage is entered. Estate of Gibson (1990, 5th Dist) 219 Cal App 3d 1486, 269 Cal Rptr 48. Unless the will expressly provides otherwise, if after executing a will that testator's marriage is dissolved or annulled, the dissolution or annulment revokes any disposition or appointment of property made by the will to the former spouse; any provision of the will conferring a general or special power of appointment on the former spouse; any provision of the will nominating the former spouse as executor, trustee, conservator or guardian. Prob C § 6122; for further discussion, see § 41:1222.
Practice Aids:
Texts: Effect of divorce of testator who was married when will was executed. 64 Cal Jur 3d, Wills § 173.
§ 41:296 Testator contemplating marriage--Provision for future spouse
I am single. I plan to marry __________ [fiancee name] on __________ [wedding date]. I have provided for my intended spouse in this will if my marriage to __________ [fiancee him or her] is consummated.
Practice Notes:
þCaution: If the testator is unmarried and is or may later contemplate marriage, he or she should be made aware that the spouse may take a share of the testator's estate unless provided for in the will. Prob C §§ 6560; for further discussion, see §§ 41:441 et seq.
Practice Aids:
Annotations: Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 ALR4th 117.
§ 41:297 Testator contemplating marriage--Marriage not to revoke will
I am single. I plan to marry __________ [fiancee name] on __________ [wedding date]. I make this will in contemplation of such marriage, and intend that my marriage to __________ [fiancee name] will not revoke it.
Practice Notes:
(See Practice Notes following § 41:296)
§ 41:298 Children--All living
1. I have the following living children, the issue of my marriage to __________ [spouse name]:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have no deceased children.
Practice Notes:
The circumstances in which a parent-child relationship arises are defined by statute. Prob C § 6408. For further discussion, see §§ 41:411 et seq.
þCaution: Failure to name or provide for a child in a will may result in the child taking an intestate share of the estate as an omitted heir. See Prob C §§ 6572 et seq. discussed in §§ 41:451.
See the discussion of who is considered a child of a decedent in §§ 41:451 et seq.
For provisions defining "child" or "children," see §§ 41:1083 et seq.
Practice Aids:
Texts: Construction of word "children." 64 Cal Jur 3d, Wills §§ 349, 350.
Annotations: Adoption as precluding testamentary gift under natural relative's will, 71 ALR4th 374.
§ 41:298 [SUPPLEMENT] Children--All living
--Practice Note
Delete cite to Prob C § 6408 and replace with Prob C §§ 6450-6455.
§ 41:299 Children--Living and deceased
1. I have the following living children, the issue of my marriage to __________ [spouse name]:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
2. I have __________ [number of deceased children] deceased children. __________ [deceased child number 1 name], who died on __________ [deceased child number 1 death date], and __________ [deceased child number 2 name], who died on __________ [deceased child number 2 death date].
3. My deceased child, __________ [name deceased child with surviving issue], left surviving the following __________ [surviving issue of deceased child]:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
4. My deceased child, __________ [name deceased child with no surviving issue], left no surviving children or issue.
Practice Notes:
(See Practice Notes following § 41:298)
§ 41:300 Children--None
I have no children, living or dead.
Practice Notes:
(See Practice Notes following § 41:298)
§ 41:301 Children--Other than children of current spouse
I have the following children who are the issue of my marriage to __________ [spouse name]:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
Before my marriage to __________ [spouse name], I had the following children __________ [add, if applicable: from my marriage to __________ (name)]:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
The term "my children" as used in this will refers to all the children named above.
Practice Notes:
(See Practice Notes following § 41:298)
§ 41:302 Children--Adopted, foster or stepchildren
I have __________ [adopted or accepted as my foster child or accepted as my stepchild] the following children:
Name Date of Birth Present Address
__________ __________ __________
__________ __________ __________
__________ __________ __________
The term "my children" as used in this will refers to all the children named above.
Practice Notes:
(See Practice Notes following § 41:298)
§ 41:303 Statement describing testator's heirs
If I were to die on the date of this will, I would leave surviving me __________ [surviving relative number 1 name], my __________ [relative number 1 relation to testator], __________ [surviving relative number 2 name], my __________ [relative number 2 relation to testator], __________ [enumeration of all other known relatives], as my sole and only heirs at law.
Practice Notes:
Heirs means the persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of the decedent. Prob C § 44. Intestate succession is governed by Prob C §§ 6400 et seq.
Practice Aids:
Texts: Construction of terms "heir." 64 Cal Jur 3d, Wills §§ 345, 346.
E. DISPOSITION OF TESTATOR'S REMAINS
1. FUNERAL AND BURIAL INSTRUCTIONS
§ 41:311 Legal principles
Before death, a person may direct the preparation for, type or place of internment of his or her remains, either by oral or written contract. The person or persons otherwise entitled to control the disposition of the remains must faithfully carry out these directions, subject to the coroner's performance of his or her duties. If the instructions are contained in a will, they must be immediately carried out, regardless of the validity of the will in other respects or the fact that the will may not be offered for or admitted to probate until a later date. Unless a decedent gives other directions, the right to control his or her remains vests in and the duty of internment and liability for the reasonable cost of internment devolves in the following order: (1) the surviving spouse; (2) the surviving child or children of the decedent; (3) the surviving parent or parents of the decedent; (4) the persons or persons in the next respective degrees of kindred under the laws of intestacy; (5) the public administrator when the decedent has sufficient assets.66 The wishes of the decedent prevail over desires of family members.67
Although a person designated as executor generally has no powers as such until the appointment is made and becomes effective, the designated person may pay the testator's funeral charges.68 The debts of the decedent and the expenses of administration and the charges against the estate are to be paid in the following order: (1) expenses of administration; (2) funeral expenses; (3) expenses of last illness; (4) family allowance; (5) debts having preference by the laws of the United States; (6) certain wages; (7) mortgages; (8) judgments. Prob C § 11420. The personal representative must pay the funeral expenses and expenses of last illness as soon as the personal representative has sufficient funds. Prob C § 11421.Notwithstanding any other statute, funeral expenses and expenses of the decedent's last illness are charged against the decedent's estate and are not allocated to or charged against the community share of the surviving spouse, whether the surviving spouse is financially able to pay the expenses and whether the surviving spouse or any other person is liable for the expenses.69
Footnote 66. H & S C § 7100.
Practice Aids:
Texts: Bancroft-Whitney's California Civil Practice, 1 Probate Immediate Postdeath Activities (Ch 2).
Annotations: Validity and effect of testamentary direction as to disposition of testator's body, 7 ALR3d 747.
--Enforcement of preference expressed by decedent as to disposition of his body after death, 54 ALR3d 1037.
Footnote 67. Re Estate of Henderson (1936) 13 Cal App 2d 449, 57 P2d 212.
Footnote 68. Prob C § 8400(b).
Footnote 69. Prob C § 11446.
§ 41:312 General paragraph
I have made the following plans for my funeral and burial: __________ [Outline plans or Funeral arrangements are to be conducted by __________ (name of mortician) of __________ (address), in accordance with instructions given to the funeral director]. My executor is directed to do everything necessary to comply with these arrangements.
Tax Notes:
Funeral expenses are deductible from the gross estate of a decedent for federal estate tax purposes. 26 USCS § 2053(a). Deductible funeral expenses are those amounts actually expended by the personal representative of the estate. The expenses must, under the laws of the local jurisdiction, be payable out of the decedent's estate. 26 CFR § 20.2053-2.
Practice Aids:
(See discussion in § 41:311)
Annotations: Enforcement of preference expressed by decedent as to disposition of his body after death, 54 ALR3d 1037.
§ 41:313 Designating spouse or alternatively children in making arrangements
I direct that my funeral arrangements be carried out by my spouse __________ [spouse name], if __________ [spouse he or she] survives me. Should my spouse predecease me, or for some reason be unable to carry out my plan, I direct that my son __________ [son name], and my daughter __________ [daughter name], carry out such arrangements, keeping in mind my desire to be buried in the family plot located at __________ [name of cemetery] at __________ [cemetery address].
Tax Notes:
(See Tax Notes following § 41:312)
Practice Notes:
(See discussion in § 41:311)
§ 41:314 Instructions on file with funeral director or mortician
I direct that my funeral and burial be conducted in accordance with my written instructions, dated __________ [funeral instructions date], on file at __________ [name of funeral director or mortician] at __________ [funeral director or mortician address]. Those written instructions are incorporated into and made a part of this will.
Tax Notes:
(See Tax Notes following § 41:312)
Practice Notes:
(See also discussion in § 41:311)
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. Prob C § 6130.
§ 41:315 Limitation on expense
I direct that the total cost of my funeral and burial is not to exceed __________ Dollars ($____) [maximum dollar cost of funeral and burial]. My executor is directed to pay such funeral and burial expenses out of the assets of my estate.
Tax Notes:
(See Tax Notes following § 41:312)
Practice Notes:
(See also discussion in § 41:311)
þCaution: This provision is probably not desirable as the limitation may be unrealistic at the time of the decedent's death and leaves open the question of liability for any excess.
§ 41:316 Erection of monument or gravestone
I direct my executor to purchase and place on my grave within __________ [maximum time for gravestone placement] after my death, a __________ [monument or gravestone], which __________ [in accordance with the design dated __________ on file with __________ (name) or generally conforms in style and size with the other monuments or gravestones which have previously been placed on adjoining gravesites]. __________ [Add, if applicable: The cost is not to exceed __________ Dollars ($____)]. The cost is to be paid for out of the assets of my estate. I further direct that the __________ [monument or headstone] be inscribed in appropriate letters with my name, spelled in the following manner: __________ [style of name inscription on gravestone], my date of birth, which is __________ [date of birth], the date of my death, and __________ [other inscriptions desired].
Tax Notes:
(See Tax Notes following § 41:312)
Practice Notes:
(See discussion in § 41:311 and Practice Notes following § 41:315)
§ 41:317 Directions as to perpetual care of grave
I authorize and direct my executor to enter into an agreement with __________ [cemetery name ], located at __________, [cemetery address], for the perpetual care of Lot No. _____[plot lot number], Section _____ [plot section number] in the cemetery, on the form of perpetual care agreement ordinarily used by such cemetery. I further authorize and direct my executor to expend out of my general estate any amounts necessary to pay assessments and other charges in arrears, and to put my lot in such order and condition as may be required by the cemetery prior to its acceptance of the perpetual care agreement.
Practice Notes:
(See discussion in § 41:311)
Practice Aids:
Annotations: Gift for maintenance or care of private cemetery or burial lot, or of tomb or of monument, including the erection thereof, as valid trust, 47 ALR2d 596.
§ 41:318 Cremation
I direct that on my death my remains be cremated, and that the ashes __________ [be placed in an urn on which my name, my date of birth, which is __________ (date) and the date of my death are inscribed, and that the urn be placed __________ (in the grave of __________ or deposited in the mausoleum in the __________ (cemetery)), at __________ (address), or __________ (specify other disposition of ashes)].
Tax Notes:
(See Tax Notes following § 41:312)
Practice Notes:
(See discussion in § 41:311)
§ 41:319 Payment of funeral, burial, and monument expenses out of assets of estate
My executor is directed to pay the expenses of my funeral, burial, and monument out of the assets of my estate.
Tax Notes:
(See Tax Notes following § 41:312)
Practice Notes:
(See discussion in § 41:311)
§ 41:320 Authority to perform autopsy
I authorize and direct my executor to authorize the physician who attends me in my last illness to perform an autopsy on my body to determine the cause of my death if the cause is either unknown or in doubt.
Practice Notes:
Texts: Autopsy generally. 23 Cal Jur 3d, Dead Bodies § 3.
2. ANATOMICAL GIFTS
§ 41:331 Legal principles
Under the Uniform Anatomical Gift Act,70 any individual who is at least 18 years old can make an anatomical gift, limit an anatomical gift, or refuse to make an anatomical gift.71 An anatomical gift is a donation of all or part of a human body or a pace maker to take place on or after death.72
An anatomical gift may be made only by a document of gift signed by the donor.73 If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.74 The donor may specify a particular physician or surgeon to carry out the appropriate procedures. If there is no such designation or if the designated person is not available, the person authorized to accept the gift may employ any physician, surgeon, technician or enucleator to carry out the appropriate procedure.75
An anatomical gift made in a will can be amended or revoked in the same manner as other provisions of the will or by following a statutory procedure.76 A donor may amend or revoke an anatomical gift not made by will only by:77
1. A signed statement.
2. An oral statement made in the presence of two individuals.
3. Any form of communication during a terminal illness or injury addressed to a physician or surgeon.
4. The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.
Footnote 70. H & S C §§ 7150 et seq.
Annotations: Statutes authorizing removal of body parts for transplant: validity and construction, 54 ALR4th 1214.
Footnote 71. H & S C § 7150.5(a).
þNote: After death an attorney in fact, certain relatives of the individual or the individual's guardian or conservator may make an anatomical gift of all or part of the individual's body or a pacemaker. H & S C § 7151. However, only the individual may make an anatomical gift on his or her behalf, if it is made known that the individual at the time of death was a member of a religion, church, sect, or denomination which relies solely upon prayer for the healing of disease or which has religious tenets that would be violated by the disposition of the human body or parts thereof or a pacemaker as an anatomical gift. H & S C § 7152.
Footnote 72. H & S C § 7150.1(a).
Footnote 73. H & S C § 7150.5(b).
þNote: An anatomical gift may be made in a will. H & S C § 7150.1(c). If so, the anatomical gift takes effect on the testator's death, whether or not the will is probated. If, after death, the will is declared invalid for testamentary purposes, the anatomical gift remains valid. H & S C § 7150.5(e).
Footnote 74. H & S C § 7150.5(b).
Footnote 75. H & S C § 7150.5(d).
Footnote 76. H & S C § 7150.5(g).
Footnote 77. H & S C § 7150.5(f).
§ 41:332 Gift of body or part thereof
In the hope that I may help others, I make this anatomical gift, if medically acceptable. I give to __________ [name of donee], __________ [any needed organs or parts or only the following organs or parts: __________ (specify the organ(s) or part(s)) for the purpose of transplantation, therapy, or medical research or education or my body for anatomical study].
Practice Notes:
The Uniform Anatomical Gift Act authorizes any individual of sound mind and 18 years of age or more to give all or any part of his body for any purpose specified in the Act, the gift to take effect upon death. H & S C §§ 7150 et seq. for a additional discussion, see § 41:331.
Practice Aids:
Annotations: Validity and effect of testamentary direction as to disposition of testator's body, 7 ALR3d 747.
--Statutes authorizing removal of body parts for transplant: validity and construction, 54 ALR4th 1214.
§ 41:333 Gift of body for medical research with alternate disposition if gift not accepted
I give my body to the __________ [donee of body] located at __________ [donee of body address], for the purpose of medical research. If my body is not accepted by the __________ [donee of body] for the purpose of medical research, I direct that my body be __________ [cremated and the ashes placed in an urn and kept at __________ (location) or specify other disposition].
Practice Notes:
(See discussion in § 41:331)
§ 41:334 Confirmation of gift of part of body--Alternate directions if death occurs outside jurisdiction where will is to be probated
I confirm that I have already donated my __________ [previously donated organs] to __________ [name of donee of previously donated organs such as St. Francis Hospital], located at __________ [donee of previously donated organs address], for its use in __________ [intended use of previously donated organs such as research]. I direct that such __________ [name of donee of previously donated organs such as St. Francis Hospital] be contacted immediately on my death and that all necessary steps be undertaken promptly to remove my __________ [previously donated organs] under their direction. As soon as practible thereafter and before embalming my body I direct that it be placed in the hands of __________ [donee of body]. If my death occurs outside of the State of California, I direct my nearest of kin or the executor of my estate to deliver my body to the nearest medical school for delivery to one of the medical schools in the State of California or to the nearest medical school for studies in the promotion of scientific medicine and the ultimate cremation with others and burial of the ashes with others or such other disposition of the remains as that medical school which receives my body.
Practice Notes:
(See discussion in § 41:331)
§ 41:335 Anatomical gift--By next of kin or other authorized person
ANATOMICAL GIFT BY __________ [NEXT OF KIN OR AUTHORIZED PERSON]
I __________ [next of kin or authorized person], of __________ [next of kin or authorized person address], make this anatomical gift of or from the body of __________ [name of decedent], who died on __________ [death date], in the __________ [city of death], California.
1. I am __________ [relationship to decedent].
2. I give any needed organs or parts from decedent.
3. This gift is made to the following __________ [person or institution]: __________ [donee name].
4. This gift is made for the purpose of __________ [intended use of body part such as transplantation].
Dated __________ [form date], at __________ [execution address].
[Signature of relative]
[Address of relative]
Practice Notes:
(See discussion in § 41:331)
§ 41:336 Revocation of prior anatomical gift
To: __________ [donee name]
__________ [donee address]
On __________ [date of gift], I, __________ [name of donor], of __________ [donor address], executed and delivered to you a document in which I gave to you my __________ [body parts previously donated], such gift to take effect on my death.
Effective immediately, I revoke that gift, and instruct you not to accept my body should it be delivered to you.
Dated __________ [form date].
[Signature]
Practice Notes:
(See discussion in § 41:331)
§ 41:337 Uniform donor card
UNIFORM DONOR CARD
The undersigned makes this anatomical gift, if medically acceptable, to take effect on death. The words and marks below indicate my desires:
I give:
(a) _____ Any needed organs or body parts;
(b) _____ Only the following organs or body parts for the purpose of transplantation, therapy, medical research, or education: __________ [organ(s) or body part(s) donated].
(c) _____ My body for anatomical study if needed. Limitations or special wishes, if any: __________ [if applicable, list specific donee].
Signed by the donor and the following witnesses in the presence of each other:
[Signature of donor]
[form date]
[Signature of witnesses]
[witness addresses]
Practice Notes:
(See also § 41:331)
The above form is sufficient as a document of gift provided for in H & S C § 7150.5.
VII. BENEFICIARIES
A. GENERALLY
§ 41:341 Persons who may be beneficiaries of will
A will may dispose of property to any person, including an individual, corporation, unincorporated association, or governmental entity.78 Other statutes authorize specific entities to benefit under a will.79 A convict may inherit property.80 Unlike former law, there is no express restriction on dispositions to animals, charities, and nonresident aliens.
þNote: Under the Probate Code, the terms "beneficiary" and "devisee" may be used interchangeably as to a decedent's testate estate.81 A "devisee" is any person designated in a will to receive a devise and is the trustee if the devise is to a trust, not the trust beneficiaries.82
A subscribing witness of a will may receive property under the will. However, unless there are at least two other disinterested subscribing witnesses to the will--or the subscribing witness receives property under the will solely in a fiduciary capacity--there is a rebuttable presumption that the witness procured the devise by duress, menace, fraud or undue influence.83 The presumption shifts the burden of proof to the subscribing witness.84 A witness who cannot rebut the presumption can take such proportion of the devise as the witness would have received were the will not established.85 However, Prob C § 6112(c) does not apply if it is established that the will was indeed procured by duress, menace, fraud, or undue influence.86
Footnote 78. Prob C § 6102.
þNote: A person is defined as an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or other entity. Prob C § 56.
Practice Aids:
Annotations: Validity and construction of testamentary gift to political party, 41 ALR3d 833.
Footnote 79. For a list of such statutes and entities, see Law Revision Commission Comments to Prob C § 6102.
Footnote 80. Pen C § 2601.
Footnote 81. See Prob C § 24(b).
Am Jur Proof of Facts: 39 Am Jur Proof of Facts 2d 177, Interference with right to share of decedent's estate.
--12 Am Jur Proof of Facts 2d 459, Determination of heirship.
--2 Am Jur Proof of Facts 2d 693, Mistake in naming or designating beneficiary in will.
Footnote 82. Prob C § 31.
Footnote 83. Prob C § 6112(c).
Footnote 84. Prob C § 6112(c).
Footnote 85. Prob C § 6112(d).
Footnote 86. Prob C § 6112(d).
§ 41:341 [SUPPLEMENT] Persons who may be beneficiaries of will
--n 78, the Note should read:
A person is defined as an individual, corporation, government or governmental subdivision or agency, business, trust, partnership, limited liability company, or other entity.
§ 41:342 Devise to trust
A will may make a devise to a trustee of a trust established or to be established by the testator, by the testator and another person, or by some other person. The devise may be to a funded or unfunded life insurance trust although the settlor of the trust has reserved all rights of ownership of the insurance contracts. The trust must be identified in the will. The terms of the trust must be stated in a written instrument other than a will executed before or contemporaneously with the testator's will or in the last will of a person who predeceased the testator. The devise is not made invalid because the trust is revocable or amendable or because the trust is modified after execution of the will or after the testator's death.87
Unless the testator's will provides otherwise, revocation or termination of the trust before the testator's death causes the devise to the trust to lapse.88
The statute refers to devises to the trustee of a trust "established or to be established." The language does not mean that the trust can be established after the will is executed. The trust must be in existence before or at the time that the will is executed.89
Footnote 87. Prob C § 6300.
For discussion of devises to trusts, see Trusts (Ch 42).
Footnote 88. Prob C § 6300.
Footnote 89. Law Revision Commission Comments to Prob C § 6300.
B. SURVIVAL REQUIREMENTS
1. LEGAL CONSIDERATIONS
§ 41:351 Devisee's failure to survive, generally
A devisee who fails to survive the testator or does not survive until some future time required by the will does not take under the will.90
þRecommendation: Mandating that individual devisees survive the testator by a specified period (usually 1-6 months) is recommended to prevent successive administration of the testator's property in the estate of a devisee who dies shortly after the testator. However, such a requirement may not be beneficial as to a devise to a spouse as the requirement prevents confirmation of the devise to the spouse until the period expires and the testator's estate cannot take a marital deduction for federal estate tax purposes if the spouse fails to survive for that period.91
þCaution: The survival period should not depend on an event such as distribution of the estate to avoid problems with the rule against perpetuities.
þRecommendation: Because of the survival requirement, each devise to an individual should specify an alternate beneficiary should the individual not survive the testator.
Unless the will otherwise provides, the devisee is deemed not to have survived the testator for the required period in the absence of clear and convincing evidence that the devisee has survived.92
Footnote 90. Prob C § 6146(a).
Practice Aids:
Texts: Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Footnote 91. See § 41:45.
Footnote 92. Prob C § 6146(b); for discussion of survival in simultaneous death situations, see §§ 41:381 et seq.
§ 41:351 [SUPPLEMENT] Devisee's failure to survive, generally
--Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted(Stats 1994 ch 806 § 40, AB 3686)).
§ 41:352 Anti-lapse statutes
If a devisee is a kindred of the testator or of a surviving, deceased, or former spouse of the testator, the devisee's issue take the devise where:93
1. The devisee is dead when the will is executed,
2. The devisee is treated as if the devisee predeceased the testator, or
3. The devisee fails to survive the testator or until a future time required by the will.
Probate Code § 6147 is referred to as an "anti-lapse statute."94 Its purpose is to effectuate the probable intent of the testator.95
The term "kindred" refers not only to blood relatives of the testator, but also to half bloods, adopted persons, persons born out of wedlock, stepchildren, foster children and issue of these persons.96 The rules for determining members of a class for purposes of a class gift apply to determine who is kindred.97
A devisee under a class gift is treated under the same principles, unless the testator knew at the time of executing the will that the devisee had already died.98 This result is consistent with the policy behind the general anti-lapse statute and consistent with the presumed intent of the testator.99
The issue take in the devisee's place under the principles of intestate succession.1 If there are no issue of the devisee, the devise lapses and passes as residue or by intestate succession. If the devise is to more than one devisee and the gift to one devisee lapses, the other devisees take the lapsed share in proportion to their interest in the estate.2
The issue of a deceased devisee do not take in the devisee's place if the will expresses a contrary intention or a substitute disposition. The will is deemed to express a contrary intent if it requires that the initial devisee survive for a specified period after the testator's death or until a future time that is related to the probate of the will or administration of the testator's estate.3 The existence of a residuary paragraph does not establish a contrary intent; to establish a contrary intent, the will must provide for disposition of lapsed gifts or provide an alternate disposition if a named beneficiary predeceases the testator.4
The share in a decedent's estate of a beneficiary who survives the decedent but who dies before distribution is distributed to the estate of the beneficiary.5 However, subject to the rule on marital deduction gifts, if the decedent's will provides that the beneficiary is entitled to take under the will only if the beneficiary survives the date of distribution or other period stated in the will and the beneficiary fails to survive the date of distribution or other period, the deceased beneficiary's interest is distributed as though the beneficiary predeceased the decedent.6
Footnote 93. Prob C § 6147(b).
Practice Aids:
Texts: Lapse provisions. Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3); Witkin, 12 Summary of Cal Law (9th ed), Wills and Probate §§ 323-326; 53 Cal Jur 2d, Wills §§ 196-199; CEB, California Will Drafting §§ 11.11-11.16.
Annotations: Devolution of lapsed portion of residuary estate, 36 ALR2d 1117.
--Applicability of antilapse statutes to class gifts, 56 ALR2d 948.
--Who are within terms "relation," "descendant," "child," "brother," "sister," etc., describing the legatee or devisee, in the statute providing against lapse upon death of legatee or devisee before testator, 63 ALR2d 1195.
--Validity, construction, and application of statutory requirement that will beneficiary survive testator for specified time, 88 ALR3d 1339.
Footnote 94. Law Revision Commission Comments to Prob C § 6147.
Footnote 95. See Witkin, 12 Summary of Cal Law, Wills and Probate §§ 324 et seq. (nature and scope of anti-lapse statute).
Footnote 96. Law Revision Commission Comments to Prob C § 6147.
Footnote 97. Prob C § 6152(c); for discussion of these rules, see § 41:392.
Footnote 98. Prob C § 6147(b).
Footnote 99. See Estate of Steidl (1948) 89 Cal App 2d 488, 201 P2d 58 (anti-lapse statute applied to gifts to class).
Footnote 1. Prob C § 6147(b); for discussion of intestate succession, see § 41:4.
Footnote 2. Estate of Begley (1988, 1st Dist) 201 Cal App 3d 791, 247 Cal Rptr 632.
Footnote 3. Prob C § 6147(c).
Footnote 4. Estate of Casey (1982, 2nd Dist) 128 Cal App 3d 867, 198 Cal Rptr 170.
Footnote 5. Prob C § 11801(a).
Footnote 6. Prob C § 11801(b).
§ 41:352 [SUPPLEMENT] Anti-lapse statutes
--Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted(Stats 1994 ch 806 § 40, AB 3686)). As to the anti-lapse provisions previously contained in Prob C § 6147, see now Prob C § 21110.
§ 41:353 Simultaneous death
If title to or devolution of property depends upon priority of death, and clear and convincing evidence does not establish which person survived the other, the general rule is that each person's property is administered or distributed as if that person had survived the other.7 As applied to a will, the general rules are that (1) if property is disposed of so that the right of a beneficiary to succeed to any interest in the property is conditioned on the beneficiary surviving another person and it cannot be established by clear and convincing evidence that the beneficiary survived, the beneficiary is deemed not to have survived the other person,8 and (2) if property is disposed of so that one of two or more beneficiaries would have been entitled to the property if he or she had survived the others, and it cannot be established by clear and convincing evidence that any beneficiary survived any other beneficiary, the property is divided into as many equal portions as there are beneficiaries and the portion of each beneficiary is administered or distributed, or otherwise dealt with, as if that beneficiary had survived the other beneficiaries. 9 As to community or quasi-community property, if it cannot be established by clear and convincing evidence that one spouse survived the other: (a) one-half of the community property and one-half of the quasi-community property will be administered upon or distributed, or otherwise dealt with as if one spouse had survived and if that half belonged to that spouse and (b) the other half of the community property and the other half of the quasi-community property will be administered on or distributed, or otherwise dealt with, as if the other spouse had survived and as if that half belonged to that spouse.10 Similar rules apply to simultaneous death of joint tenants11 and of the insured and beneficiary under a life or accident insurance policy.12
The general rules do not apply to:13
1. Distribution of community and quasi-community property in equal shares in the absence of proof that one spouse survived the other under Probate C § 103;14
2. Distribution to a devisee where proof that devisee survived the testator is necessary under testator's will;15
3. Distribution to a devisee under a California statutory will that requires the devisee be surviving or be living;16 or
4. Distribution to an intestate heir of the decedent, where proof is necessary that the heir survive the decedent by at least 120 hours or be deemed to have predeceased the decedent under the Probate Code.
The general rules also do not apply to a trust, deed, insurance contract, or other situation where:17
1. There is an explicit provision addressing distribution following simultaneous death or death in a common disaster, or otherwise directing distribution in a manner different from the general rule.
2. There is an explicit provision requiring one person to survive another for a stated period in order to take property, or establishing a presumption as to survivorship that is different from the general rule.
Footnote 7. Prob C § 220.
þObservation: The current rules governing simultaneous death do not apply where the person whose priority of death is at issue died before January 1, 1985. Prob C § 226.
Practice Aids:
Texts: Bancroft-Whitney's California Civil Practice, 1 Probate Succession (Ch 3).
Annotations: Wills: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 ALR3d 359.
--Validity, construction, and application of statutory requirement that will beneficiary survive testator for specified time, 88 ALR3d 1339.
Footnote 8. Prob C § 222(a).
Footnote 9. Prob C § 222(b).
Footnote 10. Prob C § 103.
Footnote 11. Prob C § 223.
Footnote 12. Prob C § 224.
Footnote 13. Prob C § 221(a).
Footnote 14. For discussion of distribution of community and quasi-community property, see §§ 41:3, 41:591 et seq.
Footnote 15. See § 41:531.
Footnote 16. Prob C § 6211; see §§ 41:151 et seq.
Footnote 17. Prob C § 221(b).
For forms of provisions addressing simultaneous death, see §§ 41:381 et seq.
Practice Aids:
Annotations: Wills: construction of provision as to which of two or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster, or within a specified period of time, 40 ALR3d 359.
§ 41:354 Survival requirements as to marital deduction gifts
If the will makes a marital deduction gift and includes a condition that the testator's spouse survive the testator by a period that exceeds or may exceed six months the condition is limited to six months as applied to the marital deduction gift.18 If such a will includes a condition that the testator's spouse survive a common disaster that results in the death of the testator, the condition is limited to the time of the final audit of the federal estate tax return for the transferor's estate, if any, as applied to the marital deduction gift.19
Footnote 18. Prob C § 21525(a).
Footnote 19. Prob C § 21525(b).
2. FORMS
a. LAPSE PROVISIONS
§ 41:361 Devise to lapse on death of devisee before death of testator
I give and devise to __________ [devisee name], of __________ [devisee address], __________ [devised property] if _________[devisee he or she] is living at the time of my death. Otherwise, this devise shall lapse and be null and void and shall become a part of my residuary estate.
Practice Notes:
(See discussion in §§ 41:351, 41:352.)
§ 41:362 Requirement that beneficiaries survive testator by specified period
Unless otherwise specifically provided in this will, the interest of any beneficiary who does not survive me by a period of at least __________ [number of days beyond testator life devisee must survive to receive property] will be distributed __________ [alternate disposition of property].
Practice Notes:
This provision will allow the estate of a beneficiary who dies after the period expires to take a devise. Prob C § 6146; see § 41:351. This provision also avoids application of the simultaneous death statutes to devises. Prob C § 221(b); see § 41:353.
§ 41:362 [SUPPLEMENT] Requirement that beneficiaries survive testator by specified period
Practice Notes:
Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted(Stats 1994 ch 806 § 40, AB 3686)).
§ 41:363 Devise not to lapse on death of beneficiary before death of testator
I give to __________ [devisee name, grandparent or a lineal descendant of a grandparent], of __________ [devisee address], __________ [property devised]. If the above-named person fails to survive me, or is otherwise treated as if __________ [devisee he or she] had predeceased me, the issue of such deceased devisee who survive me by __________ [number of days beyond testator life devisee must survive to receive property] shall take in place of such deceased devisee and if they are all of the same degree of kinship to the devisee, they shall take equally, but if they are of unequal degree then those of more remote degree take by representation.
Practice Notes:
If a devisee is a kindred of the testator or of a surviving, deceased, or former spouse of the testator, the devisee's issue take the devise where the devisee: (1) is dead when the will is executed; (2) is treated as if the devisee predeceased the testator; or (3) fails to survive the testator or until a future time required by the will. Prob C § 6147(b); see §§ 41:351, 41:352.
§ 41:363 [SUPPLEMENT] Devise not to lapse on death of beneficiary before death of testator
Practice Notes:
Division 6, Chapter 5 of the Prob C §§ 6140-6179, Rules of Construction of Wills, was repealed in 1994. See now Division 11, Part 1, Ch 1-3, Prob C §§ 21101-21140, Rules for Interpretation of Instruments, enacted 1994 (former Part 1, entitled General Provisions, was repealed in 1994 and reenacted(Stats 1994 ch 806 § 40, AB 3686)). As to the anti-lapse provisions previously contained in Prob C § 6147, see now Prob C § 21110.
§ 41:364 Lapsed devises to become part of residuary estate
Should any devise contained in this will lapse according to law by reason of the death of any person or persons entitled to take under the will, or for any other reason, without an express direction in this will as to how the devise should pass, I direct that the devise become part of my residuary estate and be administered and distributed with the rest of my residuary estate.
Practice Notes:
(See discussion in §§ 41:351, 41:352.)
§ 41:365 Residuary devises not to lapse--Beneficiary's estate to receive devise
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