Chapter 7 Final Draft and Execution of a Valid Will
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Chapter 7 Final Draft and Execution of a Valid Will

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Chapter 7 Final Draft and Execution of a Valid Will Chapter 7 Final Draft and Execution of a Valid Will Presentation Transcript

  • Chapter 7 Final Draft and Execution of a Valid Will
  • Contents of a Standard Will
    • Introduction or Exordium or Publication
      • Identify testator
      • State domicile
      • Declare last will and testament (intent and capacity)
    • General Revocation Clause
      • Revoke all prior wills
    • Payment of debts and expenses
      • Not required
      • Debts required to be paid by law
  • Burial Instructions
    • Instructions for final burial
      • Organ donor?
      • Research, Education, Transplant
    • Sample Clause:
    • I direct that my remains be ____________ [specify, such as: buried or cremated ] . I have arranged with ____________ [name of funeral director, cemetery authority, crematorium, or other person or entity] for the disposition of my ____________ [ remains or cremains ] . I request ____________ [ no funeral or memorial service or that my ____________ ( funeral or memorial service ) be ____________ (specify, such as: modest and in keeping with my standard of living )] .
  • Gifts
    • Specific gifts
      • Legacies: gifts of money
        • Specific legacy
          • Subject to ademption: no gift if the asset does not exist at time of death. Gift expires.
          • Specific devise
            • A gift of identifiable real property
        • General legacy
          • A gift of money from the general assets
        • Demonstrative legacy
          • A gift of a specific sum of money
      • Bequests: gifts of personal property
      • Devises: gifts of real property
    • Residuary Clause
        • Distributes the rest of the estate not gifted
        • Name alternate or successor beneficiaries
  • Personal Representative
      • Appoint personal representative (executor)
        • Must be competent
        • Name alternate or successor personal representatives
      • Sample Clause for Individual Executor:
        • I designate ____________ [name of individual] as executor of this Will. The word "executors" as used in this will shall include any personal representative of my estate. My executor, either before or after appointment, may designate a successor to serve.
      • Sample Clause for Co-Executors:
        • I designate ____________ and ____________ [names of individuals] as coexecutors of this Will. Whenever the word "executors" is used in this Will, it shall be deemed to refer to whomever of them is acting from time to time, and shall include any personal representative of my estate. If both of my coexecutors fail or cease to serve, either may designate a successor to serve.
  • Personal Representative - Compensation
    • Cal. Prob. Code §10800.
    • (a) Subject to the provisions of this part, for ordinary services the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, as follows:
    • (1) Four percent on the first one hundred thousand dollars ($100,000).
    • (2) Three percent on the next one hundred thousand dollars ($100,000).
    • (3) Two percent on the next eight hundred thousand dollars ($800,000).
    • (4) One percent on the next nine million dollars ($9,000,000).
    • (5) One-half of one percent on the next fifteen million dollars ($15,000,000).
    • (6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.
    • (b) For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal value of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.
  • Guardians
      • Appoint guardian
        • Guardian of minor children
        • Guardian of property (conservator) to manage property left to minor or incompetent children
      • Sample clause for separate guardians of minor and property:
        • If ____________ [first name of spouse] does not survive me and at my death any of my children are minors, I request ____________ [name] to act as guardian of the persons and ____________ [name] to act as guardian of the estates of any such minor children. No bond shall be required of any guardian.
  • Other Clauses
      • Simultaneous death clause
      • Testimonium clause
        • Closing paragraph before signature
      • Signature of Testator
  • Attestation Clause
    • Attestation Clause
      • Clause following testator’s signature and precedes the witness signatures
    • Sample Clause:
    • In our presence, on the date and at the place set forth above, all of us being present at the same time, the testator, ____________ [name of testator] , acknowledged the foregoing instrument consisting of ____________ [number] pages, including the page we are signing, or the testator's signature on the instrument. To the best of our knowledge, the testator was at the time 18 years or older, of sound mind, and under no constraint or undue influence. We understand this instrument to be the testator's will, and we now subscribe our names as witnesses.
    • Each of us declares under penalty of perjury under the laws of the State of California that the foregoing statements are true and correct and that this declaration is signed on the date and at the place set forth above.
    •  
    • ___________________
    •  
    • ______________________________ [Signature of witness]
    • _____________________________________________
    • [Address of witness]
    • ___________________
    •  
    • ______________________________ [Signature of witness]
    • _____________________________________________
    • [Address of witness]
  • Other Contents of a Standard Will
    • Self-proving provisions
    • Letter of instruction
  • Durable Power of Attorney
    • Durable Power of Attorney
      • Gives agent the power of attorney which is effective in the event the principal later becomes disabled.
      • Sample
  • Advance Health Care Directive
    • Living Will
      • Advance Health Care Directive
      • Sample
  • Medical Power of Attorney
    • Medical Power of attorney
      • Durable power of attorney for health care
      • Gives agent the power and authority to make all decisions relating to health and medical care when the patient is disabled or unable to make such decisions
      • Sample
  • Disinheritance Clause
    • Disinheritance Clause
      • Not allowed for spouses
      • Permitted for children and others
        • Heirs can challenge if it is unintentional
      • Sample Clause:
        • I have intentionally made no provision in this Will for any future children whom I might have, either by my present spouse or any future spouse, and whether natural or adopted, other than as otherwise specifically provided for in this Will.
  • No Contest Clause
    • No Contest Clause (In terrorem)
      • A provision eliminating a will contest from a beneficiary
      • Usually states that if contest will, then deemed disinherited
  • Personal Representative
    • Executor or executrix of the estate
    • Person named as a fiduciary or trusted individual charged with following the instructions of the testator
    • Bond/Surety
      • Used to protect estate from wrongdoing of the PR; like an insurance policy
  • Self-Proving Clause
    • Statutory provision that allows the will to be self-proven and avoid the appearance of witnesses at time of probate
    • Witnesses hard to find at time of probate or not available
  • Sample Will
  • Sample Will
    • Sample Will for Single Person
    • Sample Will for Married Person
  • Principal Clauses in a Will