6240-6243
PROBATE CODE
SECTION 6240-6243
6240. The following is the California Statutory Will form:
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, domestic partner, 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 from 18
to 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 belongs to the other named owner without probate. If
your spouse, domestic partner, 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
types 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, a member of a domestic partnership, or
divorced. You must be age 18 or older and of 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 or the current
amount excluded from estate tax under federal law 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,
domestic partner, 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, divorce, or terminate your domestic partnership
after you sign this Will. Divorce, annulment, or termination of a
domestic partnership automatically cancels all property stated to
pass to a former husband, wife, or domestic partner under this Will,
and revokes the designation of a former spouse or domestic partner as
executor, custodian, or guardian. You should sign a new Will when
you have more children, or if your spouse or a child dies, or a
domestic partner dies or marries. You may want to change your Will if
there is a large change in the value of your assets. You may also
want to change your Will if you enter a domestic partnership or your
domestic partnership has been terminated after you sign this Will.
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 be 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 under the age of 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 (from 18 to
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 that
person dies before I do A person must survive you by 120 hours to
take a gift under this Will. If that person does 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 yours 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 in which 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.
21. What is a domestic partner You have a domestic partner if you
have met certain legal requirements and filed a form entitled
"Declaration of Domestic Partnership" with the Secretary of State.
Notwithstanding Section 299.6 of the Family Code, if you have not
filed a Declaration of Domestic Partnership with the Secretary of
State, you do not meet the required definition and should not use the
section of the Statutory Will form that refers to domestic partners
even if you have registered your domestic partnership with another
governmental entity. If you are unsure if you have a domestic partner
or if your domestic partnership meets the required definition,
please contact the Secretary of State's office.
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.
*You do not need to have this document notarized. Notarization
will not fulfill the witness requirement.
* * * * * * * * * * * * * * * * * * * * * * * * * *
NOTICE OF INCOMPLETE TEXT: The California Statutory Will
appears in the hard-copy publication of the chaptered
bill. See Sec. 1 of Chapter 88, Statutes of 2010.
* * * * * * * * * * * * * * * * * * * * * * * * * *
6241. The mandatory clauses of the California statutory will form
are as follows:
(a) 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.
(b) 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.
(c) 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 granted to guardians in this paragraph may be
exercised without court authorization.
6242. (a) Except as specifically provided in this chapter, a
California statutory will shall include only the texts of the
property disposition clauses and the mandatory clauses as they exist
on the day the California statutory will is executed.
(b) Sections 6205, 6206, and 6227 apply to every California
statutory will, including those executed before January 1, 1985.
Section 6211 applies only to California statutory wills executed
after July 1, 1991.
(c) Notwithstanding Section 6222, and except as provided in
subdivision (b), a California statutory will is governed by the law
that applied prior to January 1, 1992, if the California statutory
will is executed on a form that (1) was prepared for use under former
Sections 56 to 56.14, inclusive, or former Sections 6200 to 6248,
inclusive, of the Probate Code, and (2) satisfied the requirements of
law that applied prior to January 1, 1992.
(d) A California statutory will does not fail to satisfy the
requirements of subdivision (a) merely because the will is executed
on a form that incorporates the mandatory clauses of Section 6241
that refer to former Section 1120.2. If the will incorporates the
mandatory clauses with a reference to former Section 1120.2, the
trustee has the powers listed in Article 2 (commencing with Section
16220) of Chapter 2 of Part 4 of Division 9.
6243. Except as specifically provided in this chapter, the general
law of California applies to a California statutory will.