Last Will and Testament

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Last Will and Testament Powered By Docstoc
					This document is a Last Will and Testament and may be used by an individual to
identify their intentions. This document is drafted to adequately provide for the
appointment of a personal representative who will administer the individual's last will
and testament and carry out its provisions. This document will make sure that the
individual's assets and property are distributed in the manner prescribed by the
individual. This document is a useful estate planning tool for individuals who want to
determine the manner in which their assets are distributed upon death.
                           WILL OF ___________

     I, ______________, declare this to be my last will and testament (my “Will”):



1. INTRODUCTION

     A.     Revocation of Prior Wills

                    I revoke all of my prior Wills and Codicils.

     B.     Declaration Regarding Relatives

                    I am married to ______________ ("Spouse"). We have ___ [Comment:

            insert number] children: __________________. [Comment: insert names of all

            children] Such children and any child of mine born or legally adopted after the

            date of this Will are called "Children" and individually “Child.”

     C.     Disposition

                    I intend by this will to dispose of all property which I may be entitled to

            dispose of by Will, including all of my separate property, if any, and my share of

            the community property of my Spouse and myself. Except as otherwise expressly

            provided, I do not intend to exercise any power of appointment which may be

            vested in me at the time of my death. In addition, I have not entered into a

            contract to make a Will nor a contract to refrain from revoking my Will. I have
            intentionally omitted to provide for any of my heirs not specifically mentioned in

            this Will or in any Codicil to it.




2. SPECIFIC BEQUESTS
     A.     Tangible Personal Property
                        I give all automobiles, works of art, household furniture and furnishings,

                household equipment and appliances, silverware, jewelry, clothing and personal

                effects ("Tangible Personal Property") to my Spouse. If my Spouse shall

                predecease me, I give such property in equal shares to the Children living on the

                date of my death. If any child shall be a minor at the time of distribution of such

                property, the minor's share of such property shall be distributed for his or her

                account to the guardian of his or her person or to the other adult with whom such

                minor shall reside.

[Comment: user may amend this section as user desires]

        B.      Failure to Survive - Bequests Lapse

                        If any person named or described in this Article shall predecease me, all

                bequests to or for the benefit of such person shall lapse and all property so

                bequeathed shall be disposed of as part of the residue of my estate, except to the

                extent expressly provided to the contrary in this Will.



3. DISPOSITION OF RESIDUARY ESTATE

        I give the residue of my estate, real and personal, wherever situated, including all failed

and lapsed gifts, to my Spouse. If my Spouse shall predecease me, I give such residue, called the
"trust estate," to the Trustees, in trust, to manage and distribute as hereinafter provided.

        A.      Distribution of Trust Estate

                (i)     Upon the entry of any decree of distribution establishing the trust estate,

income from the trust estate shall be added to and become principal, and the Trustees shall pay to

or apply for the benefit of my issue living from time to time, or any one or more of them, such

sums and in such proportion as the Trustees, in their discretion, determine to be necessary from

time to time for their respective support, health or education. In no event shall the Trustees be

subject to any obligation, liability or surcharge on account of making distributions from the trust
estate to differing beneficiaries in differing amounts, or for the extent to which or the manner in

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which any such action was taken in good faith. Any payment or application of benefits pursuant

to this paragraph shall be charged against the trust estate as a whole rather than against the

ultimate share of a beneficiary to whom or for whose benefit the distribution is made.

                  (ii)   When all of the Children shall attain the age of _____________ years or

shall die, the trust estate shall be distributed to my then living issue, upon the principle of rep-

resentation.

        B.        Distribution of Child's Trust

                  (i)    Income of a child's trust shall be added to and become principal, and the

Trustees shall distribute to or apply for the benefit of the child such sums as the Trustees, in their

discretion, determine to be necessary from time to time for the child's support, health or

education, until the child shall attain the age of ____________ years. From and after such time

as the child shall attain the age of _____________ years, the net income of the trust shall be

distributed or applied for the benefit of the child in monthly or other convenient installments.

                  [Comment: user can instead insert the following language (i) “One-half of the

trust shall be distributed to the child when the child shall attain the age of __________

years, and the remainder thereof shall be distributed to the child when the child shall

attain the age of _____________ years” OR (ii) “One-third of such trust shall be distributed

to the child when the child shall attain the age of ____________ years, one-half of the
remainder of the trust shall be distributed to the child when the child shall attain the age of

__________ years, and the remainder thereof shall be distributed to the child when the

child shall attain the age of ___________ years.]

        C.        Distribution After Death of Child

                  Upon a child's death before becoming entitled to receive distribution of the child's

entire trust, the trust shall be distributed to the child's then living issue, upon the principle of

representation.

        D.        Cross Remainder Provision



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                (i)     Except to the extent expressly provided to the contrary in any other pro-

vision of this Will, if any beneficiary for whom a trust has been established hereunder (or the last

survivor of any group of beneficiaries for whom a single trust has been established) shall die

before becoming entitled to receive distribution of his entire trust and shall leave no issue

surviving him, then upon his death, such trust shall be distributed in equal shares to his brothers

and sisters, excluding each brother or sister theretofore deceased leaving no issue then living, but

including, upon the principle of representation, the then living issue of any such deceased brother

or sister. If the beneficiary shall leave no brothers or sisters or any of their issue surviving him,

his trust shall be distributed to my then living issue, upon the principle of representation.

                (ii)    If a trust shall exist under this Will for any person entitled to receive a

distribution pursuant to this paragraph, the property which otherwise would be distributed to

such person shall instead be added to the trust held for his benefit, and shall be administered and

distributed as a part thereof.

        E.      Power of Invasion

                During the life of any trust for the benefit of my issue created under this Will, the

Trustees shall distribute to or apply for the benefit of any beneficiary then entitled to receive the

net income of such trust such sums from the principal of such beneficiary's trust as the Trustees,

in their discretion, determine to be necessary from time to time for the beneficiary's reasonable
support, health or education.


        F.      Death of Primary Beneficiaries

                One-half of any part of any trust not disposed of under the provisions of this

Article shall be distributed to my legal heirs, and one-half shall be distributed to my Spouse's le-

gal heirs, the identity and respective shares of such heirs shall be determined as though the death

of each of my Spouse and myself had occurred immediately following the happening of the

event requiring distribution of such part, and according to the laws of succession of the State of




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California then in force relating to separate property not acquired from a parent, grandparent or

previously deceased spouse.

         G.     Maximum Duration of Trust

                (i)       Unless terminated at an earlier date under any other provision of this Will,

all trusts created under this Will shall terminate one day prior to the twenty-first anniversary of

the death of the last survivor of me and my Spouse's grandparents' issue living on the date of my

death.

                (ii)      Upon such termination, each such trust shall be distributed to the persons

then entitled to the income thereof or, if there are none, to the persons then entitled to distri-

butions therefrom in the discretion of the Trustees as follows:

                          (a)    If all such persons shall be the issue of the same parent of any

person named or described in this Will, such trust shall be distributed to such issue, upon the

principle of representation.

                          (b)    If section (a) shall not apply, such trust shall be distributed to such

persons and in such shares as determined by the Trustees, in their discretion, taking into account

the terms of this Will.

                (iii)     Any trust created through the exercise of a power of appointment granted

under this Will, other than a lifetime general power of appointment, shall be subject to the
provisions of this paragraph. Any trust created through the exercise of a lifetime general power

of appointment shall terminate and be distributed as provided in the instrument in which such

power shall be exercised.

         H.     Power to Postpone Distribution

                Notwithstanding the foregoing provisions of this Article, the Trustees shall have

the power to postpone the distribution of a fractional part of the principal of a trust or of an entire

trust if they shall determine that there is a compelling reason to postpone such distribution, such

as a serious disability, a pending divorce, potential financial difficulty, a serious tax disadvantage
in making such distribution,, or similar substantial cause. Accordingly, the termination of any

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trust may be postponed, and any such postponement may be continued from time to time, up to

and including the entire lifetime of a beneficiary. During the postponement, the retained portion

of the trust shall be distributed in the same manner as it was distributed immediately prior to the

happening of the event requiring the distribution which was postponed.

        I.      Power to Terminate Trust

                After the death of my Spouse, if the value of any trust has declined to such an

amount that the Trustees deem it uneconomical, imprudent or unwise to continue to retain the

principal in trust, the Trustees shall have the power to terminate such trust and to deliver the then

remaining principal to or for the benefit of the beneficiary then entitled to receive the income of

such trust or among such beneficiaries if there shall be more than one. If there shall be no

beneficiaries then entitled to receive the income of such trust, such principal shall be delivered to

or for the benefit of the beneficiaries then entitled, in the discretion of the Trustees, to receive

distributions therefrom. Payment shall be made in equal shares or in shares determined by the

Trustees, in their discretion, by reference to the terms of this Will.

        J.      Trust Interest Not Transferable

                The interests of beneficiaries in principal or income of any trust shall not be

subject to the claims of their creditors or others, nor to legal process, and may not be voluntarily

or involuntarily alienated or encumbered.




6. PROVISIONS REGARDING FIDUCIARIES

        A.      Appointment of Executors

                I appoint my Spouse _________________ as Executor of this Will. If

__________________ shall be unable or unwilling to act as Executor, the following persons, in

the order named, shall act in her place: ______________________, __________________,

____________________.
        B.      Appointment of Trustees

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                I appoint ______________ as Trustee of all trusts created under this Will. If

______________ shall be unable or unwilling to act as Trustee, the following persons, in the

order named, shall act in his place: ______________, ______________.

        C.      Appointment of Guardian

                If it shall be necessary to appoint a Guardian for the person of any minor Child, I

appoint ______________ as Guardian of the person of such Child or children. If

______________ shall be unable or unwilling to act as Guardian, I appoint ______________ as

Guardian.

        D.      Power to Designate Co-Fiduciaries and Successor Fiduciaries

                Notwithstanding the foregoing provisions of this Article, each of the individuals

acting from time to time as a fiduciary shall have the power to designate a co-fiduciary to act

with him or successors to act either concurrently or serially when he shall become unable or

unwilling to act as a fiduciary. Each such individual may designate the same or different persons

to so act. Each such individual may also from time to time remove any co-fiduciary designated

pursuant to this paragraph or revoke any designation of any successor theretofore made by any

fiduciary, and may designate other persons or one or more of the same persons, or all of the same

persons previously designated, in a different order, as co-fiduciary or as successor fiduciary. All

such designations or revocations shall be exercised in writing and shall be effective upon the
delivery thereof to the person designated to act as such successor fiduciary, and, in the case of a

revocation, to the person whose designation is so revoked. As used in this paragraph, the term

"person" shall be deemed to included a corporate fiduciary.

        E.      No Bond

                No bond shall be required of any fiduciary, whether such fiduciary shall serve

alone or together with one or more co-fiduciaries.

        F.      Successor Fiduciaries Succeed to All Powers

                Any successor fiduciary shall succeed as such with like effect as though originally
named in this Will. All authority, powers and titles conferred upon any original fiduciary shall

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pass to any successor fiduciary without further act or deed. No successor fiduciary under this

Will shall be liable for any act or omission of his predecessor nor shall he be obligated to inquire

into the validity or propriety of any such act or omission. Any such successor shall be entitled to

accept as conclusive any accounting and statement of assets furnished to such successor by his

predecessor.

        G.      Resignation of Fiduciary

                Any fiduciary shall have the right to resign his position at any time by written

instrument filed with the next person named herein or designated as provided herein as such

fiduciary who is then capable of acting. The term "person" as used herein shall exclude any

deceased or legally incompetent person or a person who cannot be found after diligent search. If

there is no such named or designated person, such written instrument shall be filed with the court

having jurisdiction over my estate or any trust.

        H.      Compensation of Fiduciaries

                Any fiduciary shall be entitled to reasonable compensation.

        I.      Provisions Regarding Co-Fiduciaries

                The following provisions shall apply whenever two or more fiduciaries shall be

acting together, and the provisions of subparagraphs (4) and (6) of this paragraph also shall apply

to any person acting as sole fiduciary:
                (i)     Each fiduciary shall have the power from time to time to delegate all or

any of his powers as fiduciary, during vacation periods or other temporary absences from the

state of his domicile, to the other fiduciary acting in the same capacity. The power of delegation

shall be exercised by delivery by the delegating fiduciary to the other fiduciary of written notice

specifying the powers delegated. Such delegation shall terminate upon delivery by the

delegating fiduciary to the other fiduciary of written notice of termination. The delegating fi-

duciary shall incur no liability to any beneficiary of my estate or of any trust created hereunder

regarding the administration of my estate or of such trust with respect to the exercise of the
powers delegated during the period of such delegation.

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                (ii)    If either fiduciary is incapable of exercising his powers in the best interests

of the beneficiaries hereunder, then the other fiduciary may, during the period of such fiduciary's

incapacity, make any and all decisions as though he were the sole fiduciary. In determining the

disability of a fiduciary the other fiduciary shall rely on a certificate or other written statement

from two physicians certified by a recognized Medical Specialty Board, who are not related by

blood or marriage to any fiduciary or beneficiary under this Will, stating that they have examined

the incapacitated fiduciary and that they have concluded, based upon such examination, that the

incapacitated fiduciary is unable to exercise his powers in the best interests of the beneficiaries

hereunder. The expenses of any such examination shall be paid from my estate or the trusts of

which such individual shall be a Trustee.

                (iii)   In the absence of such written medical evidence of the fiduciary's inca-

pacity, the other fiduciary shall petition the court having jurisdiction over my estate or any trust

for authority to proceed as sole fiduciary under the authority of this paragraph. If a dispute shall

arise as to whether or not the incapacitated fiduciary shall have recovered from his disability, the

fiduciaries shall rely on the conclusion stated on a certificate or other written statement from the

same two physicians. If the same two physicians shall be unavailable, or if the court shall have

been petitioned to declare such fiduciary incapacitated, any two physicians certified by a

recognized Medical Specialty Board who are not related by blood or marriage to any fiduciary or
beneficiary may make such declaration.

                (iv)    Any incapacitated fiduciary shall be deemed to have resigned automati-

cally, without any act on his part, if such incapacity shall persist for a period in excess of ninety

days (any two periods separated by ten days or less being considered to be one period), or if two

physicians with the qualifications described in subparagraph (2) of this paragraph shall state in

writing that the incapacitated fiduciary has become, and is more likely than not to remain for an

indefinite period of time, unable to exercise his powers as fiduciary in the best interests of the

beneficiaries of my estate or of any trust.



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                (v)      No fiduciary shall be liable or responsible for any act, omission or default

of any other fiduciary, provided that he shall have had no knowledge of facts which might

reasonable be expected to put him on notice of it.

                (vi)     Each fiduciary, by accepting his office as such, agrees (a) to cooperate in

any examination necessary to carry out the provisions of this paragraph, (b) to waive the doctor-

patient privilege in respect to implement this paragraph and otherwise to facilitate the

administration of my estate and of all trusts hereunder, and (c) that his obligation to comply with

the provisions of this subparagraph shall be specifically enforceable.

                (vii)    When more than two Executors or Trustees are acting, the determination

of a majority of them shall be controlling with respect to any matter affecting my estate or any

trust (except that if any fiduciary shall be specifically excluded hereunder from participating in

making any determination with respect to a particular matter, the determination of the remaining

fiduciaries shall control). The dissenting fiduciaries shall not be liable to any person for any

action taken, or for the failure to take any action, pursuant to the decision of a majority of the

fiduciaries.

5. POWERS AND GENERAL PROVISIONS

        A.      Powers

                (i)      The Executors and Trustees shall have the power to mortgage, lease or sell
the whole or any part of my estate or any trust at either public or private sale, with or without

notice; to determine what is principal or income of my estate or any trust and to apportion and

allot receipts and expenses between these accounts; the power to invest and reinvest principal

and income of my estate or any trust; and the power, upon any division or partial or final

distribution of my estate or any trust, to partition, allot or distribute my estate or such trust in

undivided interests or in kind, or partly in money and partly in kind, at equitable valuations

determined by the Executors and Trustees in a pro rata or non-pro rata manner, so long as assets

allocated to beneficiaries have equivalent or proportionate fair market value; and to hold, manage



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or operate any property or business I may hold or own at the time of my death for as long as they

shall deem it advisable.

                (ii)    The enumeration of certain powers in this Will shall not limit the general

powers of the Executors and Trustees, who shall have all the rights, powers and privileges which

an absolute owner of the same property would have, subject to their fiduciary obligations.

        B.      General Provisions

                (i)     In all matters of interpretation the masculine shall include the feminine

and neuter and vice versa, the singular shall include the plural and the plural shall include the

singular. The headings, titles and subtitles in this Will are solely for convenient reference and

shall be ignored in any construction of this Will. Whenever reference is made in this document

to a provision contained in a specific Article, such reference shall be to that Article of this Will.

In addition, all references to specific statutes, codes or regulations shall include any successors

thereto.

                        Unless otherwise specified, all references to the Executors, Trustees or any

other fiduciary shall refer to the individuals or institutions serving from time to time in such

capacity under this Will.

                (ii)    If any provision of this Will is unenforceable, the remaining provisions

nevertheless shall be carried into effect.
                (iii)   No interest shall be paid on any gift or legacy under this Will or any

Codicil to it other than any gift or legacy to or for the benefit of a charitable organization.

                (iv)    If any devisee, legatee or beneficiary under this Will, or any legal heir of

mine or person claiming under any of them, shall, alone or in conjunction with any other person

or persons, contest this Will or attack or seek to impair or invalidate any of its provisions, or

conspire with or voluntarily assist anyone attempting to do any of these things, in that event I

specifically disinherit each such person, and for all purposes of this Will, such person shall be

deemed to have predeceased me. Expenses to resist any contest or other attack of any nature
upon any provision of this Will shall be paid from my estate or the trusts as expenses of

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administration. Nothing in this paragraph shall be construed as preventing any person from

disclaiming all or any part of any bequest to him under this Will.

                (v)     Except as otherwise expressly provided, if any person named or described

in this Will shall fail to survive me by ninety days, then for all purposes hereof such person shall

be deemed to have predeceased me.

                (vi)    All income of my estate during administration (other than income from

property specifically bequeathed), after deducting from said income only a pro rata share of the

income taxes paid which are attributable thereto and paid by the Executors and the aggregate

amount of any family allowance granted by a court of competent jurisdiction shall constitute the

net income of the residue of my estate. No interest shall be paid on said net income.

                (vii)   The aggregate amount of family allowance paid to any person during

probate administration shall be charged to and subtracted from the income earned during probate

administration to which such person shall be entitled, directly or indirectly. If such person shall

not be entitled to receive any such income or if such income shall be inadequate, the family

allowance payments or the excess portion thereof shall be charged against the principal of the

portion of the residue of my estate distributable to the payee of such family allowance or to the

trust held for the benefit of such payee.

                (viii) The use of the word "shall" herein indicates a mandatory action or inac-
tion, while the use of the word "may" indicates a permissive, but not mandatory, action or in-

action.

                (ix)    The words "child" and "issue," and derivations thereof, shall in every

instance include children and issue who were legally adopted prior to their attaining majority,

and a child or issue in gestation shall be considered as then living for purposes of this Will if

such child or issue is later born alive. A child born out of wedlock shall be treated as an issue of

his mother for purposes of this Will, but shall not be treated as an issue of his father unless the

parent and child relationship exists under the California Uniform Parentage Act existing from
time to time.

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                (x)     The term "proportionately" as used in this Will shall mean equally with

respect to all trusts set aside for Children. Comparable principles shall apply with respect to

other beneficiaries or to other provisions of any trust in which the term "proportionately" or

derivations thereof shall be used.



11. TAX PROVISIONS.

        A.      Payment of Taxes

                (i)     Subject to any contrary provisions in this paragraph, all estate and in-

heritance taxes (including penalties and interest) payable by reason of my death shall be paid as

follows:

                        (a) All such taxes attributable to property subject to probate administra-

tion shall be paid from the residue of my probate estate.

                        (b) All such taxes attributable to property not subject to probate admini-

stration ("Non-Probate Property") shall be paid by the Executors and charged to and collected

from the respective persons receiving such property.

                B.      Tax Elections

                The fiduciaries shall have the power in their discretion to take any action and to

make any election to minimize the tax liabilities of my estate, any trust, and the respective
beneficiaries thereof. Except as otherwise provided herein, the fiduciaries shall allocate the

benefits among the various beneficiaries, and make adjustments in the rights of any beneficiaries

or between the income and principal accounts to compensate for the consequences of any tax

election or any investment or administrative decision which they believe has had the effect of

directly or indirectly preferring one beneficiary or group of beneficiaries over another. The

fiduciaries shall also have the power to file a joint federal or state income tax return with my

spouse and to consent to the splitting of gifts with my spouse for federal gift tax purposes.




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        The foregoing instrument is subscribed by me on this ___ day of __________, 20__, at

_______________. [Comment: insert city and state]



_____________________________ [Comment: insert printed name below signature]



                                           WITNESSES

        Each of us declares under penalty of perjury under the laws of the State of _________

that the Testator declared this to be the Testator's Will and signed the same in our presence, all of

us being present at the same time, and we now, at the Testator's request, in the Testator's

presence, and in the presence of each other, sign below as witnesses, declaring that the Testator

appears to be of sound mind and acting under no duress, fraud or undue influence.



    1. Executed on ___ day of __________, 20__, at _______________. [Comment: insert city

        and state] residing at __________________________ [Comment: insert address].

    2. Executed on ___ day of __________, 20__, at _______________. [Comment: insert city

       and state] residing at __________________________ [Comment: insert address].
Executed on ___ day of __________, 20__, at _______________. [Comment: insert city and
state] residing at __________________________ [Comment: insert address].




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DOCUMENT INFO
Description: This document is a Last Will and Testament and may be used by an individual to identify their intentions. This document is drafted to adequately provide for the appointment of a personal representative who will administer the individual's last will and testament and carry out its provisions. This document will make sure that the individual's assets and property are distributed in the manner prescribed by the individual. This document is a useful estate planning tool for individuals who want to determine the manner in which their assets are distributed upon death.
This document is also part of a package Estate Planning for Married with Minor Children 9 Documents Included