Last Will and Testament for Divorced Person Not Remarried with Adult and Minor Children
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.
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,
or 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 Section 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 revocation 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 partnership 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.
(b) If any disposition or other provision of
a will is revoked solely by this section, it is revived by the testator
establishing another domestic partnerhsip with the former domestic partner.
(c) In cases of revocation by termination of a
domestic partnership:
(1) Property prevented from passing to a former
domestic
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.
Note: All law summaries and previews are
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