Survivorship Condition in a Will

A testator can attach certain conditions to a beneficiary's receipt of an inheritance. For example, the testator could require the beneficiary to be of a certain age before they receive unrestricted access to the asset, e.g. 25. Or the testator could require that the beneficiary achieve an educational milestone, e.g. a high school diploma or a bachelor's degree, before they receive unrestricted access to the asset. 

The most basic condition for a beneficiary to inherit from a decedent is for the beneficiary to survive the testator. For instance, the will might say "a beneficiary must survive the testator for at least 30 days in order for their interest to vest."

Occasionally I have had cases where the will lacks a survivorship clause. My impression is that the plain-meaning of the will indicates that the beneficiary only needed to survive the testator by a moment in order for the beneficiary's interest to vest.

Of note, the lengthiest survivorship period I've seen in a will or trust has been 6 months. A 30-day survivorship period is quite common.

A recent unpublished opinion focused on the lack of survivorship clause in a will.

"The issue in this appeal is whether the probate court correctly interpreted a will. The will provision in question establishes a trust for the benefit of the testator's daughter and directs that if the daughter dies without issue, 'then and in that event my trustee shall pay, deliver and convey all of the trust estate then remaining in its hands to my son."

The testator had two children, John and Maria. 

John passed away in 2014 and Maria passed away in 2020.

The trial court determined that the above language in the testator's will required John to survive Maria in order for John's interest in Maria's trust to vest. On appeal, the appellate court reversed this decision.

"None of respondents' arguments can overcome the fundamental principle that the express language of the will controls, and there is no requirement expressed in the will that John survive Maria. We must give effect to the intention of the testator as expressed in the will, even if plausible arguments can be made about what Genevieve intended. (See Keller, supra, 134 Cal.App.2d 232, 236 [contrary arguments regarding testamentary intent are disregarded when the intent of the testator can be gathered from the wording of the will].)"

Estate of Turco, Santa Clara County Superior Court case no. 1990-1-PR-125299

Residuary Clause in a Will

An important clause to include in a testamentary document such as a will is a residuary clause. This clause serves as a catch-all for any item that is not specifically distributed in the document. The benefit of including a residuary clause is that it serves as a safeguard in case the person fails to distribute their entire estate through specific gifts. Otherwise, the asset or assets will be distributed to their next of kin, i.e. intestate succession. The following example illustrates this point.

Mo Mozart was a widower who had no children. Mo's estate was mainly comprised of a home and bank account. Yes, Mo had a austere existence. Mo decided one day to write a will without the assistance of a lawyer. He found an online will template that was palatable to him. Unbeknownst to Mo, the online form did not contain a residuary clause.  

Mo devised his home to his close friend Bob Beethoven and his bank account to another close friend, Harry Handel. Both were musicians like him. I hope you can see the musical angle here. He also named the two of them co-executors.     

One of the reasons Mo decided to write a will was to make sure that his next of kin, Bo Mozart, his brother, did not inherit his estate. Mo was disappointed that Bo opted to become a professional mime instead of pursuing a career in music like the rest of his family. Mo believed that his will would ensure that Bo did not inherit from him. Or so he thought........

When Mo passed away, his will was submitted to the local probate court by Bob and Harry. An inventory and appraisal of his estate showed that in addition to his house and bank account, Mo had many items that were not accounted for in his will, notably musical instruments.

Bo was notified of the probate because he was next of kin (this is required by CA law). When Bo realized that Mo had not specifically mentioned the distribution of his musical instruments in the will and it contained no residuary clause, he petitioned to be named the beneficiary of the musical instruments. Due to those two aspects, the musical instruments became part of Mo's intestate estate. See Probate Code § 21111(a)(3) This meant that the musical instruments were treated as if Mo wrote no will. Therefore the musical instruments would be distributed to his next of kin, i.e. Bo. Naturally Mo wanted to avoid this scenario. Unfortunately Mo was not given proper legal advice when he wrote his will. Alas Mo could not change his will from beyond the grave and Bo became a beneficiary of Mo's estate.

Attorney Fees

Occasionally a party will represent themselves in a probate matter. "Pro per" is the term used to describe a self-represented party. For example, an heir could challenge the validity of a will by arguing that the testator lacked capacity to execute a will.  

A self-represented party is required to identify themselves that way on court papers.  If you ever look at a probate petition filed on pleading paper, the petition will list in the upper left-hand corner of the 1st page the attorney's name and their bar number, e.g. 258625 (my bar number). For a self-represented party, they will write "pro per" or something similar to that near their name.

Self-representation is permissible because a third-party is not involved. Attorney licensing is required, so the theory goes, to protect clients from unlicensed attorneys who might cause them irreparable harm through incompetent representation. However, there is nothing that prevents a party from representing themselves in an action. Attorney licensure requirements do not protect a party from themselves.

An associated issue that comes up with self-represented parties is whether they are entitled to attorney fees. Normally attorney fees are not awarded to even the prevailing party, much less the losing side. Each side bears their own cost of litigation. The exceptions for this rule, in the probate context, involve certain causes of action. For instance, attorney fees are recoverable under the common fund theory for a beneficiary. See Copley v Copley (1981) 126 CA3d 248, 292. Still, attorney fees are not recoverable for a self-represented party, even if the party is an attorney. See Musaelian v. Adams (2009) 45 Cal.4th 512, 520. So even if a self-represented party prevails in a probate matter and spent 50 hours working on the case, they will not be compensated for the time they spent on the matter.

Logically it makes sense to bar a self-represented party from recovering attorney fees, even if they are an attorney. The prohibition recognizes that attorney fees are for a third-party, not the party themselves. Allowing attorney fees for a self-represented party would create the impression that the self-represented party is somehow two people, the client and the attorney. That would be a neat trick, but such obviously defies reality.

Moreover, since nearly all self-represented parties are not attorneys, the prohibition ensures that there is no attorney licensure loophole. One would expect that attorney fees are reserved for attorneys. If you are not an attorney, you do not receive them.  

Executor of a Will (Letters Testamentary)

A statement I commonly hear, albeit erroneous, is where a person mentions that a relative or friend passed away and they are now the executor after reading their will. However, this hypothetical person is misinformed in terms of California probate law. An executor is only appointed following a court order. Simply by reading a will and seeing you are the nominated executor does not automatically make you the appointed executor of an estate. There is a process in becoming the executor.

In order to become appointed executor of a testator's estate, such person has to petition for probate with the appropriate superior court. If the decedent resided in California, "the proper county for proceedings concerning administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died." Probate Code § 7051. If the testator was domiciled in Monte Sereno, CA but died in Auburn, CA, the proper county to petition for probate would be Santa Clara County not Placer County. Usually determining the decedent's domicile is relatively easy, you just figure out where the decedent lived permanently. Domicile is just a fancy way of saying "permanent residence" or "permanent home." Granted a permanent residence can change over time but you can only have 1 permanent residence at a time. Just try me on this one.

When a person petitions for probate, they submit to the probate court various judicial council forms and a copy of will. Form DE-111, the main document, will ask basic background information about the decedent such as where they resided, if they were married, if they had children, when they passed away, the approximate value of their estate, if they had a will, etc. The judicial council forms can be found here. 

If all the appropriate forms have been correctly submitted, an order for probate will be granted (Form DE-140) and at that point, an executor will be appointed (Form DE-150). If an executor is appointed, DE-150 is completed as letters testamentary. 

Once appointed executor, such person can deal with third-parties on behalf of the decedent's estate. Although third-parties will ask for a copy of letters testamentary as evidence of the executor's authority to act. For instance, a bank will ask for a copy of letters testamentary if the executor desires to access the decedent's account there.         

Lodging of a Will - Probate Code §8200

When a testator passes away, i.e. a person who wrote a will, California law requires the custodian of the will to deliver such to the clerk of the superior court of the county where probate may be initiated. Probate Code §8200. For example, if the testator was a domiciliary of Los Gatos, CA, the custodian of the will would lodge it with the Santa Clara County Superior Court at the 191 N 1st Street courthouse in San Jose. 

The custodian could be a relative, neighbor or the testator's attorney. 

The additional requirement of Probate Code §8200 compels the custodian to mail a copy of the will to the executor, if their whereabouts are known, and if the executor's whereabouts are unknown, the custodian is to mail a copy to a beneficiary, if their whereabouts are known.

AB-2166, a proposed bill in the California legislature, seeks to reduce the obligations on the custodian. AB-2166 would amend Probate Code §8200 such that the custodian would only have to comply with one of the above obligations. That is, the custodian would only have to either (1) mail a copy to the executor or beneficiary or (2) lodge the will with the superior court. If the custodian chooses to deliver the will to the executor or beneficiary, the following notice would need to be included in at least 10-point font:

“As the successor custodian of the decedent’s will, you have a duty pursuant to Section 8200 of the Probate Code to deliver the will within 30 days of receipt to the superior court of the county in which the estate of the decedent may be administered. Additionally, if you are not the person named in the will as executor, but know the whereabouts of the person who is named in the will as executor, you are required to mail a copy of the will to the person named as executor.” 

The rationale behind the bill was to make it easier for the will to be filed. If the custodian is not named in the will as either an executor or beneficiary, they still have to pay $50 to the superior court to have the will lodged. Although the probate code expressly permits the custodian to be reimbursed for this expense, probate typically takes 6-12 months to complete. Hence, repayment of the $50 is by no means immediate. This bill would allow the custodian to shift the responsibility of lodging the will to the executor or beneficiary, parties who have a greater financial interest in seeing the will lodged and probated. Yes, humans are motivated by financial considerations. Shocking I know. 

It is probably that this bill will pass given that there is no opposition on file and is sponsored by the Trusts and Estates Section of the State Bar of California. Still, only time will tell if this bill becomes law. So please do not assume that AB-2166 is current law.

Revoking a Will

When a person revokes a will, it is prudent to dispose of the old will. Out with the old and in with the new as the old adage goes. The obvious reason being is that problems can arise if the testator passes away and the 2 ostensibly valid wills are floating around. One person might find the earlier will and then petition for probate under the impression that the will is valid. Another person might find the later will and think that their will is valid as well. Such is the exact scenario of a recent court case originating from Contra Costa County Superior Court, Case # MSP0900615. Suffice to say, I was surprised to read such a peculiar situation.

On January 28, 1997, the late Daniel Bridges executed a will, written by his attorney John Busby, which named Kim Brumleve as the executor and a beneficiary. Following the will's execution, attorney Busby placed such in his will drawer. On September 28, 1997, Mr. Bridges revoked his prior will and wrote a new will that named Renee Hansen as the executor and a beneficiary. Yet attorney Busby mistakenly filed this second will in another folder. Consequently, the January Will was never properly disposed of because the September Will was not placed in the same file.

On April 10 2009, Mr. Bridges passed away. Attorney Busby then retrieved the January Will from his files so that probate could commence. Since the will was seemingly valid, letters testamentary were issued and Ms. Brumleve was appointed the executor on July 9, 2009 by the probate court in Contra Costa County. However in May 2011, Ms. Hansen located the September Will that named her as the executor and a beneficiary. Consequently, she too petitioned for probate and letters testamentary. Such was the beginning a very lengthy litigation battle.  If protracted trust litigation piques your interest, the unpublished opinion can be found on Google Scholar and the California Court of Appeal's website, Case # A137168, Hansen v. Brumleve.

What I found fascinating about the case was that an apparently innocuous oversight, i.e. the misplacing of the will, caused this entire case. A mole hill had mushroomed into a mountain as the opinion detailed the numerous hearings that had been held over the years. However, I should mention that Ms. Brumleve did not appeal the validity of the second will. Rather she appealed the trial court's decision to surcharge her for misuse, conversion and waste of estate assets. Still, the genesis of the entire case was the result of a misplaced will. 

Abatement

A person's estate cannot distribute more than what one owns at death. This is the rough testamentary equivalent of the phrase "don't write a check that you cannot cash." If a person's will devises too much, a process known as abatement occurs.  In short, abatement is "the reduction of testamentary gifts." Black's Law Dictionary 8th ed. (West Group, 2004). 

For example, assume that in 1999 Thomas wrote a will which devised (a) a gift of $50,000 to his brother Bernardo, (b) $75,000 to his friend Fred and (c) the rest, known as the residue, to his neighbor Ned. When Thomas wrote his will, his estate consisted of $300,000 in a bank account and an unencumbered home in Los Altos, CA. However, economic difficulty soon confronted Thomas. He repeatedly invested in many failed start-ups in Silicon Valley. By the time Thomas passed away in 2013, his estate consisted of only a $60,000 bank account which lacked a pay-on-death beneficiary. His Los Altos home had been earlier foreclosed on. Thus, Thomas's estate clearly lacked the necessary liquidity to fullly satisfy the gifts he made in his will.

The issue then is how are the gifts abated, i.e. what is the priority of satisfaction. The default California law is found in Probate Code § 21402. It lists the order of abatement as follows: 

(1) Property not disposed of by the instrument.
(2) Residuary gifts.
(3) General gifts to persons other than the transferor’s relatives.
(4) General gifts to the transferor’s relatives.
(5) Specific gifts to persons other than the transferor’s
relatives.
(6) Specific gifts to the transferor’s relatives.

From the above example, (a) is considered a specific gift to a relative so it would be (6), (b) is considered a specific gift to a non-relative so it would be (5) and (c) is considered a residual gift so it would be (2). Hence, the residual beneficiary, Ned, would receive nothing as there would be no items left following the distribution of the specific gifts. For Fred, since he lacked priority in regards to Bernardo as he was a non-relative, his gift would be abated in favor of Bernardo. Whereas the estate consisted of $60,000, the first $50,000 of which would be allocated to satisfy the bequest to Bernardo. The remaining $10,000 would be allocated to Fred.

The problem of abatement is usually an issue where the testator devises large monetary gifts. Many people are actually cash-poor even though they might be asset-rich. Americans typically aspire to make their money work for them, thereby their money will be invested in various endeavors. Thus, a specific gift of $25,000 might not seem problematic at first blush but ultimately could prove disruptive if the estate is cash-poor.  

In light of this, many people who write a will often use percentages instead of set amounts when listing beneficiaries. This provides flexibility in case the testator's financial situation changes post-execution of their will. Still, the testator might not be comfortable with a percentage because 50% of an estate might be worth more than a specific gift of say $75,000 years later. From personal experience, I have seldom seen large monetary gifts listed in a will although it occasionally pops up. On balance, I think percentages are desirable because it is easier administratively. When the person passes away, the proverbial pie is split up according to the will and the process is complete. Whereas with a specific monetary gift, assets must be marshaled to satisfy the bequest. 

Revoking a Will

Occasionally a person will change their mind in life about something, e.g. what kind of career they want, where they want to live, when should they retire, what should they eat for dinner that night, etc. Equally true is that a person might decide to revoke their will and write a new one. The key is that the person correctly revoke their will so there is no confusion when they pass away. This is done to avoid the unenviable position of where the executor is confronted with competing wills and they are not sure which one is controlling.

California law provides for 2 methods to revoke a will, revocation by a subsequent written document or by destruction. Prob C § 6120.

For the former, a prior will can either be cancelled through written revocation,  such as by writing "I revoke all wills and codicils I have previously made" in the subsequent will or by writing a subsequent will that is inconsistent with the prior will. The prudent maneuver is to revoke the prior will via written instrument rather than by writing a totally new will because it avoids the need to interpret competing wills once the testator passes away. In short, it is best not to leave the will's interpretation to chance. 

For the latter, a will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.

A real-life example of how one testator decided to revoke their will involved the estate of Steven Wayne Stoker. Estate of Stoker (2011) 193 CA4th 236. In 1997, Mr. Stoker executed a will and a trust. However, a few years later, Mr. Stoker had what could be described as a change of heart. According to the opinion, 

"At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing "estate planning," and he asked Meier to "get a piece of paper and a pen." He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting "word for word" from decedent's dictation. She handed it to him, "he looked at it and he signed it." Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it."

To be clear, this colorful revocation by Mr. Stoker need not be replicated. Burning the will was sufficient alone. Presumably Mr. Stoker was unaware that his zealotry was not required by the California probate code. A simple "I revoke my prior will" on the 2005 will probably would have sufficed. Regardless, Mr. Stoker's unique method of revocation was effective and his 2005 will (which was the subject of the appeal) was admitted to probate instead of his 1997 will. Naturally I would probably never advise a client to revoke a will this way.

Ademption by Satisfaction

When a beneficiary under a will receives their inheritance prior to the testator's death, the question then becomes whether or not the devise is satisfied. This is known as ademption by satisfaction. 

For reference, ademption is defined as property that was listed in the person's will that is not in his or her estate at the time of their death. Black's Law Dictionary 8th ed. (West Group, 2004). Of note, when I was in law school, the term used for ademption by satisfaction was "advancement." Other jurisdictions may use the latter term instead of the former.   

California Probate Code § 21135 states that if one of the following conditions occurs, then ademption by satisfaction is triggered:
(a) Property given by a transferor during his or her lifetime to a person is treated as a satisfaction of an at-death transfer to that person in whole or in part only if one of the following conditions is satisfied:
(1) The instrument provides for deduction of the lifetime gift from the at-death transfer.
(2) The transferor declares in a contemporaneous writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer.
(3) The transferee acknowledges in writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer.
(4) The property given is the same property that is the subject of a specific gift to that person.

For example, Thomas Hobbs, a widower without any children, wrote a will that included a gift of $25,000 to his neighbor Bobby Winghart. The balance of his estate went to his friend, a famous author, Samuel Langhorne Clemens. Thomas named his uncle Elvis Hobbs as executor. 

Thomas was a wealthy man and had amassed a large fortune at the time of his death. He owned multiple properties having been a successful entrepreneur in Silicon Valley. Yet when Thomas died, his estate was illiquid, i.e. it lacked cash resources.  Thomas had tirelessly sought investments and believed that a bank account was a poor asset-maximization vehicle. Thus, his estate did not have sufficient funds to initially provide for Bobby's gift. 

One day, following Thomas' death, Elvis began sorting through Thomas' possessions. When going through Thomas' desk, he discovered that Thomas had given Bobby a gift of $25,000 the year before he died. The check read on the memo line "$25k is worth more today $25k tomorrow, enjoy!" Armed with this information, Elvis believed Bobby's gift had already been satisfied.

Elvis then filed a petition in probate court to determine entitlement to Thomas' estate, arguing that Bobby's gift had adeemed. Elvis argued that since Thomas' gift of $25k to Bobby matched the amount stated in the will and the check referenced the will, ademption by satisfaction should occur. The probate court agreed and ordered that Bobby take nothing from Thomas' estate as he had already received his inheritance.  

Out-of-state will in California

Many people migrate to California each year. The fact that thousands of people come to the Golden State means that their estate planning instruments also follow them to California. The validity of out-of-state wills is subject to Prob C § 6113. 

It reads as follows:   

"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 at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national."

Clearly California has a very broad rule for recognizing the validity of an out-of-state will. For instance, Thomas Walcott was a resident of Brookings, Oregon. Thomas worked for the CA Dept. of Corrections at Pelican Bay State Prison, a short car ride away from his home. Since Thomas did not want to have to pay sales tax or pump his own gas, he lived in Oregon instead of California.

In light of Thomas's very risky occupation, Pelican Bay houses the most violent inmates of California's prison population, he decided to write a will. Since Thomas was not an expert in probate law, Thomas hired an attorney he found on Yelp. The Oregon attorney crafted the will in conformity with Oregon law. The will named his long-time neighbor Nelly Nedson the sole beneficiary of Thomas' estate. Years later, Thomas retired and moved to Thousand Oaks, CA to be closer to his relative. 

When Thomas eventually passed away, his family located Thomas' will. Upon seeing that the will was written in Oregon, his relatives initally became hopeful because they erroneously thought that the will was invalid and that they would inherit Thomas' estate through intestate succession. However, when they took the will a California attorney, the attorney informed them of Prob C § 6113 and said the will might nonetheless be valid. 

The attorney then found the Oregon attorney who helped draft the will and the Oregon attorney provided a declaration attesting to the will's conformity with Oregon law. The California attorney then petitioned for probate with Thomas's Oregon will in Ventura County Superior Court. Eventually, Nelly was contacted and he inherited Thomas' estate at probate's conclusion.  

Execution of a Witnessed Will

 
When a person executes a witnessed will, certain formalities must be adhered to during the process. The following is a brief overview of the process.

First, the will must be signed by one of the following individuals. Prob C § 6110(b)(1)-(3).

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 Section 2580.

For reference, the testator is the person who wrote the will and a conservator is somebody who has been court-appointed to oversee the testator because the testator lacks mental capacity. 

Second, the will must be witnessed by at least 2 other witnesses. Prob C § 6110(c). The requirements to be a witness involved a low threshold, "any person generally competent to be a witness may act as a witness to a will." Prob C § 6112(a). 

Frequently the drafting-attorney and an employee will serve as the witnesses. It is highly recommended that the witnesses be disinterested. The reason for this is because of Prob C § 6112(c), which reads in pertinent part "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." 

For example, if Wilbur was a beneficiary under Theo's will and witnessed it, a rebuttable presumption would arise that Wilbur wrongfully procured this devise. Hence, if Wilbur was to inherit Theo's car, Wilbur would have to prove that there was no wrongdoing on his part for inheriting Theo's car. If Wilbur cannot rebut this presumption, he is entitled to 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." Prob C § 6112(d). In other words, Wilbur would be entitled to his share of Theo's estate as an intestate heir, if he qualified.

These 2 witnesses must countersign after witnessing the testator sign or acknowledge their signature in front of them. The relevant statute reads "the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will." Prob C § 6110(c)(1).

For instance, Thomas types a will one Sunday afternoon and invites his neighbors William and Wendy to serve as witnesses that evening in his kitchen. Thomas just tells them that he needs them to witness a legal document but does not mention that it is a will. Just prior to coming over, Williams decides to make a phone call because he is addicted to his smart phone. Wendy leaves without him and enters Thomas' home to find him in the kitchen. Thinking everything is alright, Thomas signs the will and Wendy signs as a witness. After finishing his phone call, William comes to the kitchen for the first time and signs the will as the second witness. Since William was neither present when Thomas signed his will nor did Thomas acknowledge his signature or will to William upon entering the home, Thomas' will does not comply with the requirements of Prob C § 6110(c) and is arguably invalid.

However, Thomas' will may be found to be valid if "proponent(s) of the will establish by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will." Prob C § 6110(d). Granted, this is not the ideal method to prove a will but it does provide an avenue for relief should the technical attestation requirements not be met.  

Furthermore, a notary should not notarize the will. While studying to become a notary, my training manual actually said it was okay to notarize a will under certain circumstances. The training manual was and remains wrong on this issue. No competent California attorney will tell a client to have a notary notarize a will because 
(1) it is not required and (2) it is so peculiar such that it will arose suspicion that something dishonest is at play. 
   
Also, California law does not require the initialing of each page for a will. The purpose of this is to prove that the testator has presumably read and approved each page. I have seen some wills have initials on each page. Again, this is not required and personally I find this to be overkill. 

Probate Bond

When a person dies, called the decedent, and leaves behind a will, the will's executor will need to probate the will. Consequently, a probate bond is commonly required for this process. The following 6 questions address some key aspects of a probate bond.

1. What is a probate bond?

A probate bond is an insurance policy for associated parties of the decedent should the executor breach a fiduciary duty while administering the decedent's estate during probate.

2. How does a probate bond work?

If an executor breaches a fiduciary duty, affiliated parties of the decedent may seek payment from the bond company to redress the injury caused by the executor's misdeed(s). Thereafter, the bond company is entitled to reimbursement from the executor for up to the amount expended by the bond company. The bond company's liability is generally limited to the amount of the bond.

For example, assume Earl was the executor of Wilfred's will. Wilfred's estate consisted of a home and a small bank account. The will's sole beneficiary was Wilfred's neighbor Beatriz. Earl obtained a probate bond from a bond company during the early stages of probate. During the probate's administration, Earl failed to timely pay the mortgage payments and the home was foreclosed. This constituted a breach of Earl's fiduciary duty as he failed to exercise ordinary care and diligence when managing the home. Prob C § 9600(a). Beatriz then filed a motion in Wilfred's probate case to have the bond company award her damages for Earl's breach. The bond company would then award damages to Beatriz and seek reimbursement from Earl for the amount expended to Beatriz.    

3. Is bond required?

No, bond is not required in the following situations

• The will waives bond.  Prob C §8481(a)(1).                                                                              Although the court may require bond even though the will waives the requirement of bond if: 
• for good cause, on its own motion or on petition of an interested person Prob C §8481(b) and 
• if the proposed representative resides outside California or for other good cause. Cal Rules of Ct 7.201(b).
• All beneficiaries in writing waive bond and the will did not require bond or there is no will. Prob C §8481(a)(2).
• A trust company is appointed executor. Prob C §§83, 301(a).

4. How do you obtain a bond?

The executor will need to file an application with a bond company which will then conduct a credit check of the executor. The cost of the bond is directly proportional to the executor's credit worthiness. The better the credit, the less expensive the bond will be and vice versa.

5. How much will be the bond?

The bond's size generally correlates with the estate's size. 

For example, per Prob C § 8482(a)(1)-(3), "the court in its discretion may fix the amount of the bond, but the amount of the bond shall be not more than the sum of:

1. The estimated value of the personal property.
2. The probable annual gross income of the estate.
3. If independent administration is granted as to real property, the estimated value of the decedent’s interest in the real property."

 6. Can bond be changed?

Yes bond can both be increased and decreased during probate. For example, the bond might be increased if the executor uncovers previously undiscovered assets of the decedent. Conversely, the bond might be decreased if the appraised value of the decedent's assets are less than estimated. 

Codicils

Codicil of Christopher Columbus (No I cannot read it)

It is common for a person who writes a will to later change their mind as to its contents. As time goes by, a person's attitude and circumstance changes invariably and reflectively they might wish to change their will. For example, the testator might want to amend beneficiary designations, the choice of executor or specific bequests. The legal term used for this testamentary instrument is a "codicil." 

A codicil can supplement, amend, qualify or republish a prior testamentary document. Estate of Benson (1944) 62 CA2d 866. The codicil and will coalesce in probate whereby both are read as one document. In a sense, a will and codicil are like chapters in a book. Each chapter needs to be read in order to fully understand the book, and the same holds true for a will and codicil.

What is particularly important when writing a codicil is to ensure a clear intention. The following case illustrates the problems an inarticulate intention, i.e. ambiguities, can create.

Estate of Lund (1973) 34 CA3d 668

Grace Lund's will devised $10,000 to Margarita Varga. Then in a codicil to her will, Ms. Lund stated that Ms. Varga was to receive $20,000 and a mink coat. Naturally, Ms. Varga argued that the codicil supplemented the will such that she would receive $30,000. Conversely, the executor argued that the codicil was substitutional whereby Ms. Varga should only receive $20,000. The Court held that the codicil was not substitutional because it found no evidence of intent to substitute the $20,000 for the $10,000. Rather it found that the codicil supplemented the will and affirmed the $30,000 award to Ms. Varga. This case illustrates the danger of haphazardly executing a codicil. The $10,000 difference in 1973 is today worth anywhere 4x and 10x times that amount. Be clear!

Probate Terms

Probate law has certain terms that have specific legal meanings to them. The following are some of those terms.

Abatement 

Definition: The reduction of testamentary gifts. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: John Negligent decides to leave $50,000 in his will to his friend Larry Appleton with the balance, known as the residuary, to his other friend Homer Thompson. When John wrote his will, his estate was worth $500,000 in liquid assets. However, when John passed away, due to his profligate spending, his estate was only worth $30,000. California laws on abatement say that Larry is entitled to the remaining $30,000, not Homer. Prob C § 214029(a). However, the default rules of abatement can be altered in a will. Prob C § 21400. 

Ademption 

Definition:  Property that was listed in the person's will that is not in his or her estate at the time of their death. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: John Negligent states in his will that his friend James Rodgers is to receive his prized red Ferrari 308 GTS, which was featured in the movie National Lampoon's Vacation. (I have watched that movie about a thousand times now). John then sells his Ferrari to pay off his credit debt and passes away in a tragic hot air balloon accident shortly thereafter. John's gift of the Ferrari to James is therefore adeemed. James will then need to prove, in order to inherit replacement property from John's estate, that there is no sufficient proof to conclude that John intended for the gift to fail. Estate of Austin (1980) 113 CA3d 167. For example, James will argue that John sold the car because he intended to pay off his credit card rather than avoid having James inherit his Ferrari.

Beneficiary

Definition: "A person to whom a donative transfer of property is made or that person's successor in interest." Prob C § 24.

Example: John Negligent leaves, in trust, a beach home in Santa Cruz for his nephew Bobby Smithson.

Class gift

Definition: A gift to all individuals matching the description of the class. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: John Negligent writes a will and leaves his entire estate to his "nieces." When John write his will, he has 4 nieces but at the time of his death he has only 1 niece. Since the devise was to a class of members, rather than individuals, the remaining niece is entitled to inherit the entire estate rather than split the estate with the heirs of the predeceased nieces.

In contrast, a gift made by Katherine Moore in her will to "Carrie D. Griffin and her sister, Anna M. Davis, equally divided" was found not be a class gift.  Estate of Moore (1955) 135 CA2d 122. Thus, Anna could not inherit the entire gift even though Carrie had predeceased Katherine.

Creditor

Definition: "One to whom a debt is owed." Black's Law Dictionary 8th ed. (West Group, 2004)

Example: John Negligent runs over a defenseless old lady in the Santa Cruz mountains on a dark and stormy night. The old lady's family sues sues John for wrongful death and wins. While on appeal, John passes away due to an unforeseen traffic accident. The victim's family is a creditor of John's estate and may assert a creditor's claims during John's probate.

Decedent

Definition: "A dead person." Black's Law Dictionary 8th ed. (West Group, 2004)

Example: Self-explanatory. I will avoid making a potshot at a recently deceased celebrity.

Disclaimer

Definition: "Any writing which declines, refuses, renounces, or disclaims any interest that would otherwise be taken by a beneficiary." Prob C § 265

Example: Homer Thompson is the first named beneficiary of John Negligent's large estate, his uncle. However, Homer has enormous credit card debt and multiple judgments against him. Rather than have his creditors inherit his uncle's estate, Homer disclaims his interest in John's estate so that it transfers to the second named beneficiary. For reference, this is legal. Prob C § 283.

Executor

Definition: An individual nominated in a will to be appointed by the probate court to administer the estate of the decedent's death. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: John Negligent nominates in his will that Freddy Freebird to be the executor of his will. 

Fiduciary

Definition: A person who is required to act for the benefit of another person, on all matters within the scope of their relationship; one who owes to another the duties of good faith, confidence and candor. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: An executor hires an attorney to handle a decedent's probate. The executor is a fiduciary for the decedent's estate and the attorney is a fiduciary for the executor.

Heir

Definition: Any person, including the surviving spouse, who is entitled to take property of the decedent by intestate succession under this code. Prob C § 44. 

Example: Harry is married to Wendy but the couple decides never to have kids. Harry passes away in a tragic rafting accident on the Colorado River in Arizona. At the time of his passing, Harry did not write his will. Wendy is considered Harry's heir. 

An heir is basically a person's next of kin.

Intestate

Definition: A person who has died without a valid will. Black's Law Dictionary 8th ed. (West Group, 2004). 

Example: Irwin decides to write a will but can only locate 1 witness, his neighbor, to sign his type-written will. On the way home from having his will countersigned by his neighbor, Irwin is run over by a pizza delivery guy. Irwin has died intestate because a type-written will requires 2 witnesses. Prob C §6110.

Issue

Definition: All his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent. Prob C § 50.

Example: Harry and Wendy, a married couple, have two children, Sonny and Denise. Denise then gets married and has a child, Gwynn. Harry then passes away in an unforeseen blender accident. Harry's issue would be considered Sonny, Denise and Gwynn. 

Lapse

Definition: A devise to a beneficiary that fails because the beneficiary has either predeceased the testator or has failed to live until a certain point in time. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: Thomas devises to Bobby his home in Los Altos, CA free and clear, 650 Rosewood Court. Bobby unexpectedly passes away before Thomas succumbs to mortality. Bobby's inheritance is a nullity because he has failed to survive Thomas, namely the gift has "lapsed." 

Minor

Definition: An individual under 18 years of age. Fam C §6500.

Example: Self-explanatory   

No Contest Clause

Definition: A clause in a will or trust that disinherits a beneficiary should they contest a will or trust. Black's Law Dictionary 8th ed. (West Group, 2004).

Example: Thomas writes in his will that his son, his sole heir, shall only receive $10,000 of Thomas' $1,000,000 estate. The remainder of the estate will go to Thomas' drinking buddy Barney. The will also contains a no contest clause which states that Thomas will forfeit his $10,000 inheritance if he chooses to pursue litigation in hopes of overturning the will for whatever reason.

Pretermitted Child

Definition: A will, made by a parent, that fails to account for a child.  Black's Law Dictionary 8th ed. (West Group, 2004).  

Example: Harry writes his will in 2000. In 2002, Harry marries Wendy and they have a child named Doris in 2004. In 2011, Harry passes away after toppling a vending machine after he tried to grab the last Diet Mountain Dew from it. Doris is a pretermitted child because Harry's will does not account for her. In light of this, Doris may be able to claim an intestate share of Harry's estate.

The companion to a pretermitted child case is the pretermitted spouse, in which the husband fails to account for the wife in his will.

Residuary

Definition: A residuary gift is a transfer of property that remains after all specific and general gifts have been satisfied. Prob C §21117(f).

Example: Thomas pens a will with the following stipulations (1) $15,000 to my Uncle Buck (2) $20,000 to my neighbor Al Bundy (3) my Honda Accord to my friend Larry Appleton and (4) the residual to Pancho Villa. When he dies Thomas' estate has (1) $100,000 in cash (2) $300,000 in Exxon Mobil stock (3) a home in Beverly Hills, CA (4) a Honda Accord and (5) a Rolex Oyster Perpetual. 

Villa, as the residual beneficiary is entitled to $65,000 in cash, all the Exxon Mobil stock, Thomas' house and his watch. 

Rule Against Perpetuities 

Definition: A nonvested property interest is invalid unless one of the following conditions is satisfied: 

(a) When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive or (b) The interest either vests or terminates within 90 years after its creation. 

Example: William Randolph Hearst, the media baron, wrote in his 1951 will that his trustee was to operate his business, which is estimated to be worth billions of dollars, as long as they see fit and without time limit. Due to the rule against perpetuties, the trust is expected to last until 2040. Hearst v Ganzi (2006) 145 CA4th 1195. The reason for this is because by 2040, the trust will have failed to vest or terminate within 21 years of Hearst' death and it will be 90 years since the trust's creation.

Testator
 
Definition: A person who has made a will.Black's Law Dictionary 8th ed. (West Group, 2004).
     
Example: Pretty sure an explanation is not needed here.

Trustee

Definition: One who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary. Black's Law Dictionary 8th ed. (West Group, 2004). 

Example: Thomas writes a trust and leaves property to his son Samuel. However, since Samuel is a minor, Thomas entrusts the property to Theo to hold in trust until Samuel becomes an adult.

The list of duties a trustee owes a beneficiary are expansive and there is significant liability involved with this undertaking.

Trustor (or Settlor)

Definition: One who creates a trust. Black's Law Dictionary 8th ed. (West Group, 2004). 

Example: Every trust has three components, a trustor (or settlor), the person who creates the trust, the trustee, the legal owner of trust property and the beneficiary, the equitable owner of the property.

Writing a Will

Writing a will is not an overly cumbersome process. The following are some provisions that all wills should contain. Of note, the term for a person who writes a will is "testator." A person who dies with a will dies "testate" whereas a person who dies without a will dies "intestate." 

Your full name and any nicknames you go by 

Clearly it would be difficult to administer a will if the testator was anonymous. Moreover, it is important to include any nicknames you might commonly go by. For example, past clients have routinely gone by their nicknames. Even their bank accounts or driver's license had their nicknames on the account (don't ask how they did this).

The point is to be able to ascertain who in fact wrote the will. 

Place of residence 

The common practice is to list the county of residence, rather than the city of residence, and the state of residence. There is no legal requirement to do so but it is good practice. If you do not know what county you reside in, well, just Google the city you live in and Wikipedia can tell you.

California law says that a will needs to be probate in the county of residence of the decedent. Hence including the county of residence would prove helpful for the executor. Prob C § 705. 

Name of spouse and/or children 

California is a community property state. Each spouse has a 50% community property interest in the entire marital estate. By omitting a spouse in their will, the testator runs the risk that the omitted spouse can claim an intestate share of the testator's estate despite their omission. Prob C §§100-101.  There are exceptions to this rule though. Prob C §21611.

Similarly, if a testator fails to mention his or her children, such omitted children can claim a share of the testator's estate, just like a spouse, despite their omission. Prob C § 21620. Although, again, there are exceptions to this general rule. Prob C § 21621. 

A No-Will Contract 

Yes, a person can write a contract which specifies how they will write their will. Prob C § 21700. I have never personally seen a will contract but have read about them. Regardless, it is good practice to include a no-will contract clause to erase any doubt. 

List of bequests

People read wills because they want to see what they will inherit. Obviously then, it is important to clearly delineate what item goes to which person. For example, a testator can write "my ATT stock to my cousin Bob" suffices.

It is not necessary to be overly verbose or complicated when making bequests. Just pick an item and list a person. 

Name an Executor 

The executor is a person nominated in a will to be appointed by the court to administer the estate at the testator's death.The executor can be virtually anyone, a relative, a family friend, a neighbor or a corporation. 

Just don't pick the crazy neighbor who refuses to mow his lawn, the relative who has filed bankruptcy multiple times or the friend who likes to buy products he sees while watching infomercials at night. 

Testator's signature 

The testator has a few options as to who can sign the will. (1) The testator can sign the will,  (2) a person  in the testator's presence by the testator's direction, or (3)a court-appointed conservator of the testator can sign as well. Prob C § 6110.

The norm is to have the testator sign. 

Attestation Clauses 

California law requires that 2 witnesses sign a formal will. Prob C § 6110. However, a holographic will does not require any witnesses to sign. Prob C § 6111. Still, holographic wills are ripe for fraud and undue influence. Hence, the writing of a holographic will is often discouraged.

Holographic Wills

1. What is a holographic will? 

A holographic will is a will written, as least to the material provisions, in the testator’s handwriting and signed by the testator. 

2. Does California recognize holographic wills? 

Yes, California recognizes holographic wills. Prob C § 6111. 

3. Does a holographic will require witnesses or a date or both? 

A holographic will actually requires neither a date nor attestation by witnesses. Granted, it would be foolish to not date the will because if the holographic will is not dated and an inconsistent will exists, the probate court will consider the holographic will to be invalid invalid to the extent of the inconsistency unless it is shown that the holographic will was executed after the other will. Prob C §6111(b)(1). 

4. Does anybody write a holographic will? 

Yes, some people still write holographic wills, although this scant amount decreases over time because of the ubiquity of word processing software. I know of very few people who do not own a computer. 

5. Are holographic wills still relevant? 

Yes, an appellate court decision involving the validity of a holographic will of a Santa Clara County resident was rendered only a few years ago. Estate of Williams (2007) 155 CA4th 197. 

6. Are holographic wills ripe for fraud? 

Yes, as is the case for estate planning instrument, holographic wills are ripe for fraud but even more so on the account that no witnesses are present and no date is required. Even though a trust does not require witnesses, it is customary to have the settlor’s signatures notarized. Conversely, in the case of a holographic, neither law nor custom compels a testator to have the will be attested to by a third party. Thus, it is easy to try to pass off a holographic will as authentic when in fact it is a fake. 

7. What other problems are associated with holographic wills? 

As demonstrated by Estate of Williams, a seemingly half-baked testamentary document was admitted into probate because the testator had shown the requisite testamentary intent to write a will. Estate of Williams (2007) 155 CA4th 197. For example, the words "Last Will, Etc. or What? Of Homer Eugene Williams" appeared at the top of the document. The document was never signed by the testator as the top of the document was the only place where the testator’s name was found. Finally, the document only disposed of a portion of the testator’s estate.

The lesson from Estate of Williams is that a document which might shows some testamentary intent could be deemed a holographic will even though the testator might have intended it to be a rough draft. Since a holographic will can be completed in a few sentences, it is not very difficult to draft a holographic will. 

8. How long does a holographic will need to be? 

According to California case law, not especially long. In a famous California Supreme Court case (I read this case during law school) the following was the complete version of the testator’s valid holographic will. Estate of Russell (1968) 69 C2d 200.

Front side of small card:   "Turn the card
                                         March 18-1957
                                         I leave everything
                                         I own Real &
                                         Personal to Chester
                                         H. Quinn & Roxy Russell
                                         Thelma L. Russell"

Back side of small card:    My ($10.) Ten dollar gold
                                        Piece & diamonds I leave
                                        to Georgia Nan Russell.
                                        Alverata, Geogia”

The main reason for the case’s relevance is because “Roxy Russell” was the testator’s dog and outright gifts to an animal are void. Estate of Russell (1968) 69 C2d 200. If an animal owner wishes to leave property to their pet, they may do so through a pet trust. Prob C § 15212.