If you were to thumb through the California Probate Code in your downtime—doesn’t everyone do this?—you would eventually come across section 6240, in which the California Legislature has created a Will form that Californians can use to dispose of their property at death. At first, you might think that’s awfully convenient, and wonder if you could put it to use for yourself?
Well, maybe, but it’s a risk. In the first place, the statutory Will offers limited flexibility. If you have substantial assets, own a business, or want to create a trust or specifically delineate who gets what, the statutory Will won’t be much use. Also, you still have to satisfy the formalities involved in creating a Will, and that can be tricky, as I’ve explained before.
Let’s explore that first issue in more detail: The statutory Will offers limited flexibility. You can see those limits in how the statutory Will deals with dispositions and special provisions for young beneficiaries.
The statutory Will includes basic provisions for a person to dispose of his or her property. It divides a person’s property into four distinct categories:
- His or her principal residence (i.e., home);
- His or her automobiles, furniture, household items, clothing, jewelry, and other tangible articles of a personal nature;
- Specific cash gifts; and
- Everything not otherwise disposed of.
And that’s it. These four categories cannot be divided further to provide more detailed instructions. For example, the Will cannot specify that automobiles go to one child, furniture and household items to another, and jewelry to a third.
Instead, the statutory Will allows each of the above categories (other than cash gifts) to be given to one of the following people or groups:
- The testator’s spouse or domestic partner, or to his or her descendants if the spouse or domestic partner dies first;
- The testator’s descendants, and nothing to his or her spouse or domestic partner;
- Any one person specifically named; or
- Equally among two or more people specifically named.
Cash gifts can be made to any person or charity, and more than one person or charity can receive a cash gift. Otherwise, these categories are also quite restrictive. For example, if you wanted to leave your assets to your descendants as a class, with the exception of one of your children, there’s no way to do that in the statutory Will.
Special Provisions for Children and Beneficiaries Under 25
One of the advantages of having a Will is being able to nominate a guardian for any child under 18 if, when you die, the child’s other parent is not living. The statutory Will includes a section for that purpose, too, enabling you to nominate up to three individuals as alternative choices.
Another advantage of a Will is to prevent a child (or immature adult) from receiving property until he or she reaches a certain age. The statutory Will allows the testator to dictate that any property to be given to a person younger than 25 is to be held by a custodian until the person turns 25 (or any other age you choose between 18 and 25).
However, the ability to control when a person receives his or her property is more limited under the statutory Will than it would be under a Will drafted by an attorney. In a Will drafted by an attorney, you could establish a trust to hold the person’s property for his or her benefit until he or she turns any age you select, or until he or she graduates from college, or gets married. Simply put, you have a lot more flexibility in this regard in an attorney-drafted Will, too.
Can You Edit the Statutory Will Before Signing?
“But,” you may be thinking, “Surely I can simply cross out some text, or add in my own provisions, right?”
Wrong. The instructions to the statutory Will command: “Do not add any words to the Will (except for filling in blanks) or cross out any words.” In the questions that precede the text of the Will in Probate Code § 6240, the Legislature explains in more detail: “If you [add or cross out any words], the Will may be invalid or the court may ignore the crossed out or added words.”
Probate Code § 6226 goes further, explaining that additions or deletions from the text can be given effect only if clear and convincing evidence (a high standard) shows that they would effectuate the clear intent of the testator. If the person relying on your Will can’t prove that, the court could ignore the changes you tried to make or declare the entire Will invalid.
In short, if you want full control over your estate planning and access to sophisticated planning techniques, you need to work with an estate-planning attorney to draft a Will that meets your needs. The statutory Will is just too simple and restrictive to meet everyone’s estate-planning needs.