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Here’s the California Statutory Will (ab 1986). Sure, it’s boiler plate and may not fit your situation, but it’s a start and works for many people. A will is especially important to properly plan for the future, so that your money, property and care for your children go where you want it or don’t want it to go to. A will will help avoid will contests, litigation and animosity amongst your children, charities, etc, your heirs.
QUESTIONS AND ANSWERS ABOUT the
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. §6400 – 6414 * Explanation from Nolo.com 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.
A. What about a trust?
4. What is community property?
Can I give away my share in my Will?
If you are married or in a domestic partnership and you or your spouse earned money during your marriage or domestic partnership 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 spouse 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. Probate Code §6240
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A power of attorney for health care
A Health Care Directive is a written document designating an agent (the person you select) to make health care decisions for the principal, (that’s you, the person writing their wishes) whereas an individual health care instruction is a patient’s written or oral directions for his decision on health care. Health Directive P.J Hoskins, Esq. Site Statutory Form
The Five Wishes document helps you express how you want to be treated if you are seriously ill and unable to speak for yourself. It is unique among all other living will and health agent forms because it looks to all of a person’s needs: medical, personal, emotional and spiritual. Five Wishes also encourages discussing your wishes with your family and physician.
Five Wishes lets your family and doctors know:
Which person you want to make health care decisions for you when you can’t make them.
The kind of medical treatment you want or don’t want.
How comfortable you want to be.
How you want people to treat you.
What you want your loved ones to know.
Health Care Instructions
There are two primary choices of health care instructions used by most people. You can select one of them for inclusion in your health care directive:
(a) Choice Not To Prolong Life
I do not want my life to be prolonged if
(1) I have an incurable and irreversible condition that will result in my death within a relatively short time,
(2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or
(3) the likely risks and burdens of treatment would outweigh the expected benefits, OR
(b) Choice To Prolong Life
I want my life to be prolonged as long as possible within the limits of generally accepted health care standards. this is basically the I want to keep the artificial means going? provision
Other Types of Instructions
Another commonly used instruction is:
RELIEF FROM PAIN:
I direct that treatment for alleviation of pain or discomfort be provided at all times, even if it hastens my death.
Other instructions may be added to reflect your specific wishes. P.J Hoskins, Esq. Statutory Form
This is planning for care you would want to get if you become unable to speak for yourself. You can talk about an advance directive with your health care professional, and he or she can help you fill out the forms, if you want to. An advance directive is an important legal document that records your wishes about medical treatment at a future time, if you’re not able to make decisions about your care. You pay nothing if it’s provided as part of the yearly “Wellness” visit and the doctor or other qualified health care provider accepts assignment.
Note: Medicare may also cover this service as part of your medical treatment. When advance care planning isn’t part of your yearly “Wellness” visit, the Part B deductible and coinsurance apply.
Consumer Links & Resources
10 Myths on Health Care Directives
Technical Information & Links
Background from Uniform Act for Statutory Form.
The optional form set forth in this section incorporates the Section 2 [Prob. Code § 4670 et seq.] requirements applicable to advance health-care directives…. An individual may complete all or any [of the first four] parts of the form. Any part of the form left blank is not to be given effect. For example, an individual may complete the instructions for health care part of the form alone. Or an individual may complete the power of attorney for health care part of the form alone. Or an individual may complete both the instructions and power of attorney for health care parts of the form. An individual may also, but need not, complete the parts of the form pertaining to donation of bodily organs and tissue and the designation of a primary physician.
Part 1, the power of attorney for health care, appears first on the form in order to ensure to the extent possible that it will come to the attention of a casual reader. This reflects the reality that the appointment of an agent is a more comprehensive approach to the making of health-care decisions than is the giving of an individual instruction, which cannot possibly anticipate all future circumstances which might arise.
Part [1.1] of the power of attorney for health care form requires only the designation of a single agent, but with opportunity given to designate a single first alternate and a single second alternate, if the individual chooses. No provision is made in the form for the designation of co-agents in order not to encourage the practice. Designation of co-agents is discouraged because of the difficulties likely to be encountered if the co-agents are not all readily available or do not agree. If co-agents are appointed, the instrument should specify that either is authorized to act if the other is not reasonably available. It should also specify a method for resolving disagreements.
Part [1.2] of the power of attorney for health care form grants the agent authority to make all health-care decisions for the individual subject to any limitations which the individual may state in the form. Reference is made to artificial nutrition and hydration and other forms of treatment to keep an individual alive in order to ensure that the individual is aware that those are forms of health care that the agent would have the authority to withdraw or withhold absent specific limitation.
Part [1.3] of the power of attorney for health care form provides that the agent’s authority becomes effective upon a determination that the individual lacks capacity, but as authorized by Section 2(c) [Prob. Code § 4682] a box is provided for the individual to indicate that the authority of the agent takes effect immediately.
Part [1.4] of the power of attorney for health care form directs the agent to make health-care decisions in accordance with the power of attorney, any instructions given by the individual in Part 2 of the form, and the individual’s other wishes to the extent known to the agent. To the extent the individual’s wishes in the matter are not known, the agent is to make health-care decisions based on what the agent determines to be in the individual’s best interest. In determining the individual’s best interest, the agent is to consider the individual’s personal values to the extent known to the agent. Section 2(e) [Prob. Code § 4684] imposes this standard, whether or not it is included in the form, but its inclusion in the form will bring it to the attention of the individual granting the power, to the agent, to any [conservator] or surrogate, and to the individual’s health-care providers.[Part 1.5 implements Probate Code Section 4683.]
Part [1.6] of the power of attorney for health care form nominates the agent, if available, able, and willing to act, otherwise the alternate agents in order of priority stated, as [conservators] of the person for the individual. This provision is included in the form for two reasons. First, if an appointment of a [conservator] becomes necessary the agent is the one whom the individual would most likely want to serve in that role. Second, the nomination of the agent as [conservator] will reduce the possibility that someone other than the agent will be appointed as [conservator] who could use the position to thwart the agent’s authority.
Because the variety of treatment decisions to which health-care instructions may relate is virtually unlimited, Part 2 of the form does not attempt to be comprehensive, but is directed at the types of treatment for which an individual is most likely to have special wishes. Part [2.1] of the form, entitled “End-of-Life Decisions,” provides two alternative choices for the expression of wishes concerning the provision, withholding, or withdrawal of treatment. Under the first choice, the individual’s life is not to be prolonged if the individual has an incurable and irreversible condition that will result in death within a relatively short time, if the individual becomes unconscious and, to a reasonable degree of medical certainty, will not regain consciousness, or if the likely risks and burdens of treatment would outweigh the expected benefits. Under the second choice, the individual’s life is to be prolonged within the limits of generally accepted health-care standards…. Part [2.2] of the form provides space for an individual to specify any circumstance when the individual would prefer not to receive pain relief. Because the choices provided in Parts [2.1-2.2] do not cover all possible situations, Part [2.3] of the form provides space for the individual to write out his or her own instructions or to supplement the instructions given in the previous subparts of the form. Should the space be insufficient, the individual is free to add additional pages.
The health-care instructions given in Part 2 of the form are binding on the agent, any [conservator], any surrogate, and, subject to exceptions specified in Section 7(e)-(f) [Prob. Code §§ 4734-4735], on the individual’s health-care providers. Pursuant to Section 7(d) [Prob. Code § 4733], a health-care provider must also comply with a reasonable interpretation of those instructions made by an authorized agent, [conservator], or surrogate.
Part 3 of the form provides the individual an opportunity to express an intention to donate bodily organs and tissues at death. The options provided are derived from a suggested form in the Comment to Section 2 of the Uniform Anatomical Gift Act (1987). [See Health and Safety Code § 7150 et seq.]
Part 4 of the form provides space for the individual to designate a primary physician should the individual choose to do so. Space is also provided for the designation of an alternate primary physician should the first designated physician not be available, able, or willing to act.[Part 5.1] of the form conforms with the provisions of Section 12 [Prob. Code § 4660] by providing that a copy of the form has the same effect as the original….
The form does not require formal acceptance by an agent. Formal acceptance by an agent has been omitted not because it is an undesirable practice but because it would add another stage to executing an advance health-care directive, thereby further reducing the number of individuals who will follow through and create directives. However, practitioners who wish to adapt this form for use by their clients are strongly encouraged to add a formal acceptance. Designated agents have no duty to act until they accept the office either expressly or through their conduct. Consequently, requiring formal acceptance reduces the risk that a designated agent will decline to act when the need arises. Formal acceptance also makes it more likely that the agent will become familiar with the principal’s personal values and views on health care. While the form does not require formal acceptance, the explanation to the form does encourage principals to talk to the person they have named as agent to make certain that the designated agent understands their wishes and is willing to take the responsibility.[Adapted from Unif. Health-Care Decisions Act § 4 comment (1993).] [29 Cal.L.Rev.Comm. Reports App. 6 (1999)] www.Westlaw.com
Links & References
Nolo.com Sample Will 11 page pdf
Nolo – Quicken WillMaker & Trust $90
Rules for if you don’t have a will
(Intestate Succession – definition)
INTESTATE SUCCESSION GENERALLY §6400-6414
Consumer Resources & Links
WHAT HAPPENS IF A WILL CANNOT BE FOUND?
Do I need a will? CA State Bar
- “Do I Need A Living Trust?”
- “Do I Need Estate Planning?”