|
|
|
State Law
Federal Law
|
California Probate Code PROB Section 6240Legal Research Home > California Lawyer > Probate Code > California Probate Code PROB Section 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.
* * * * * * * * * * * * * * * * *
NOTICE OF INCOMPLETE TEXT: The California Statutory Will appears
in the hard-copy publication of the chaptered bill.
See Sec. 5 of Chapter 32, Statutes of 2003.
* * * * * * * * * * * * * * * * *
Section: 6240 6241 6242 6243 Next
California Lawyers
Last modified: April 11, 2008 |