Presentation on theme: "Final Draft and Execution of a Valid Will"— Presentation transcript:
1 Final Draft and Execution of a Valid Will Chapter 7Final Draft and Execution of a Valid Will
2 Contents of a Standard Will Introduction or Exordium or PublicationIdentify testatorState domicileDeclare last will and testament (intent and capacity)General Revocation ClauseRevoke all prior willsPayment of debts and expensesNot requiredDebts required to be paid by law
3 Burial Instructions Instructions for final burial Sample Clause: Organ donor?Research, Education, TransplantSample 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 )].
4 Gifts Specific gifts Residuary Clause Legacies: gifts of money Specific legacySubject to ademption: no gift if the asset does not exist at time of death. Gift expires.Specific deviseA gift of identifiable real propertyGeneral legacyA gift of money from the general assetsDemonstrative legacyA gift of a specific sum of moneyBequests: gifts of personal propertyDevises: gifts of real propertyResiduary ClauseDistributes the rest of the estate not giftedName alternate or successor beneficiaries
5 Personal Representative Appoint personal representative (executor)Must be competentName alternate or successor personal representativesSample 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.
6 Personal Representative - Compensation Cal. Prob. Code § (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.
7 Guardians Appoint guardian Guardian of minor childrenGuardian of property (conservator) to manage property left to minor or incompetent childrenSample 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.
8 Other Clauses Simultaneous death clause Testimonium clause Closing paragraph before signatureSignature of Testator
9 Attestation Clause Attestation Clause Sample Clause: Clause following testator’s signature and precedes the witness signaturesSample 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]
10 Other Contents of a Standard Will Self-proving provisionsLetter of instruction
11 Durable Power of Attorney Gives agent the power of attorney which is effective in the event the principal later becomes disabled.Sample
12 Advance Health Care Directive Living WillAdvance Health Care DirectiveSample
13 Medical Power of Attorney Durable power of attorney for health careGives 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 decisionsSample
14 Disinheritance Clause Not allowed for spousesPermitted for children and othersHeirs can challenge if it is unintentionalSample 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.
15 No Contest Clause No Contest Clause (In terrorem) A provision eliminating a will contest from a beneficiaryUsually states that if contest will, then deemed disinherited
16 Personal Representative Executor or executrix of the estatePerson named as a fiduciary or trusted individual charged with following the instructions of the testatorBond/SuretyUsed to protect estate from wrongdoing of the PR; like an insurance policy
17 Self-Proving ClauseStatutory provision that allows the will to be self-proven and avoid the appearance of witnesses at time of probateWitnesses hard to find at time of probate or not available