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California Estate Law Summary

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General: The California Probate Code Section 6100 through Section 8226 governs the execution of Wills and contains other provisions relating to Wills law. This summary is not intended to be all inclusive of the law of Wills but does cover many material issues.

Who May Make a Will: An individual 18 or more years of age who is of sound mind may make a will. Also, a conservator may make a will for the conservatee if the conservator has been so authorized by a court order pursuant to Section 2580.

Competence to Make Will: An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B)understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done. see California Probate Code Section 6100.5.

Property to Pass by Will: A will may dispose of the following property:
(a) The testator's separate property.
(b) The one-half of the community property that belongs to the testator under Section 100.
(c) The one-half of the testator's quasi-community property that belongs to the testator under Section 101.

Who may receive property: A will may make a disposition of property to any person, including but not limited to any of the following:
(a) An individual;
(b) a corporation;
(c) an unincorporated association, society, lodge, or any branch thereof;
(d) a county, city, city and county, or any municipal corporation;
(e) any state, including this state;
(f) the United States or any instrumentality thereof; or
(g)a foreign country or a governmental entity therein. See California Probate Code Section 6102.

Execution: A will must be in writing and signed by one of the following:
(1) by the testator;
(2) in the testator's name by some other person in the testator's presence and by the testator's direction;
(3) by a conservator pursuant to a court order to make a will under the Section 2580. The will must be witnessed by being signed by at least two person each of whom (1) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature of the will and (2) understand that the instrument they sign is the testator's will. see California Probate Code Section 6110.
A written will is validly executed if its execution complies with any of the following:
(a) The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200)(California statutory will) or Chapter 11 (commencing with Section 6380)
(Uniform International Wills Act).
(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.
(c) The execution of the will complies with the law of the place where the time of execution or at the time of death the testator is domiciled, has a place of adode, or is a national. See California Probate Code Section 6113.

Validity of Holographic Wills: A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. If a holographic will does not contain a statement as to the date of its execution and:
(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the incosistency unless the time of its execution is established to be after the date of execution of the other will.
(2) If it is established tha the testator lacked testatmentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.
Any statement of testamentary intent contained in a holographic will may be set forth either in the testator's own handwriting or as part of a commercially printed from will. See California Probate Code Section 6111.

Extrinsic Evidence: Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear. See California Probate Code Section 6111.5.

Witnesses: Any person who is generally competent to be a witness may act as a witness to a will. A will or any provision is not invalid because the will is signed by an interested witness. Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud or undue influence. This a a presumption which will affect the burden of proof. This presumption will not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity. If the devise made by the will to an interested party fails because the presumption applied to the devise and the witness fails to rebut the presumption, the interested witness will take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. See California Probate Code Section 6112.

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Revocation: A will or any part of the will may be revoked by the following:
(a) A subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) Being burned, torn, canceled, obliterated, 0or destroyed, with the intent or purpose of revoking it, by either the testator or another person in the testator's presence and by the testator's direction. See California Probate Code Section 6120.
A will executed in duplicate or any part thereof will be revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either the testator or another person in the testator's presence and by the testator's direction. See California Probate Code Sectioln 6121.

Divorce: (a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:
(1) Any disposition or appointment of property made by the will to the former spouse.
(2) Any provision of the will conferring a general or special power of appointment on the former spouse.
(3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator's remarriage to the former spouse.
(c) In case of revocatoin by dissolution or annulment:
(1) Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator.
(2) Other provisions of the will conferring some power of office on the former spouse will be interpreted as if the former spouse failed to survive the testator. See California Probate Code Section 6122.
Unless the will expressly provides otherwise, if after executing a will the testator's domestic www.ip is terminated, the termination revokes all the following:
(1) Any disposition or appointment of property made by the will to the former domestic partner.
(2) Any provision of the will conferring a general or special power of appointment on the former domestic partner.
(3) Any provision o the will nominating the former domestic partner as executor, trustee, conservator, or guardian.
(d) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator establishing another domestic www.ip with the former domestic partner.
(e) In caes of revocation by termination of a domestic www.ip:
Property prevented from passing to a former domestic partner

Locating Will: If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence. 6124.

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Description - California Life Documents Planning Package, including Will, Power of Attorney and Living Will

The Legal Life Documents Personal Planning Package contains essential life documents, information on how to organize life documents and other products. The documents in this package are State Specific.

This package contains the following forms:

Last Will
General Durable Power of Attorney for Property and Finances Effective Immediately
Statutory Durable Power of Attorney for Health Care
Health Care Directive
Statutory Form of Advanced Health Care Directive
Uniform Statutory Power of Attorney - Property - Finances - Section 4401
Statutory Notice Required for Printed Durable POA Forms
Estate Planning Questionnaire and Worksheets
Personal Planning Information and Document Inventory Worksheets

Detail Information on each form:

Last Will - Complete this form to detail in writing your wishes regarding who is to receive your property at death and who will administer your estate. It also enables you to appoint trustees or guardians, if applicable.
General Durable Power of Attorney for Property and Finances Effective Immediately - This General Durable Power of Attorney is a general, durable power of attorney which is effective IMMEDIATELY. The powers granted to an Agent in this Power of Attorney are very broad. This Power of Attorney does NOT provide for health care services. This form complies with all applicable state statutory laws.
Statutory Durable Power of Attorney for Health Care - This form is a durable power of attorney for health care pursuant to California Probate Code Section 4701. The principal must list his/her desires, special provisions, and limitations. The principal may also use this form if he/she wants to limit the term of the durable power of attorney.
Health Care Directive - This is a statutory form that is provided for in the California Probate Code. It is a multi part document that provides a variety of options for the user. Part 1 of this form is a power of attorney for health care. Part 1 lets you name another individual as agent to make health care decisions for you if you become incapable of making your own decisions or if you want someone else to make those decisions for you now even though you are still capable. Part 2 of this form lets you give specific instructions about any aspect of your health care, whether or not you appoint an agent. Part 3 of this form lets you express an intention to donate your bodily organs and tissues following your death. Part 4 of this form lets you designate a physician to have primary responsibility for your health care.
Statutory Power of Attorney for Health Care - This Statutory Power of Attorney for Health Care gives the person you designate as your agent/attorney in fact the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this Power of Attorney. This document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive. You have the right to make health care decisions for yourself as long as you can give informed consent. No treatment may be given over your objection and health care necessary to keep you alive may not be stopped or withheld if you object.
Uniform Statutory Power of Attorney - Property - Finances - Section 4401 - This form is a Uniform Statutory Form of Power of Attorney for California for property, finances and other powers you specify. It also provides that it can be durable.
Statutory Notice Required for Printed Durable POA Forms - This Notice is required on a printed form of a durable power of attorney that is sold or otherwise distributed in California for use by a person who does not have the advice of legal counsel. It shall shall be in not less than 10-point boldface type or a reasonable equivalent. This notice is not required for the Uniform Statutory Power of Attorney form.
Estate Planning Questionnaire and Worksheets - This Estate Planning Questionnaire and Worksheet is for completing information relevant to an estate. It contains questions for personal and financial information. You may use this form for client interviews. It is also ideal for a person to complete to view their overall financial situation for estate planning purposes.
Personal Planning Information and Document Inventory Worksheets - This form enables you to document matters relevant to your life and personal planning such as the location of your important legal documents, relatives names, contact information, medical information, financial asset inventory and more.

California Estate and Personal Planning Forms

California Estate Law Summary