This is a sample template an individual can use to draft their own customized will. This
particular will establishes trusts for the benefit of children that are related to the testator.
This template contains both standard clauses and opportunities for the use of optional
terms and conditions making it fully customizable to fit the needs of the user. This
template is ideal for individuals that want to see how a will is organized and drafted.
WILL OF ___________
Non-Tax Sensitive Will with Child Trust
I, ______________, declare this to be my last will and testament (my “Will”):
Revocation of Prior Wills: I revoke all of my prior Wills and Codicils.
1. Declaration Regarding Relatives
I am married to ______________ ("my spouse"). We have the following
children: __________________ and __________________. Such children and
any child of mine born or legally adopted after the date of this Will are called "my
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.
II. SPECIFIC BEQUESTS
1. 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
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predecease me, I give such property in equal shares to my 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.
2. 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.
III. 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 distri
1. Division of Trust Estate Into Separate Trusts [Option: separate trust established
for each kid.
Upon the entry of any decree of distribution establishing the trusts created in this
Article, the Trustees shall divide the trust estate into separate, equal trusts as follows:
() One trust for each child of mine living at the time of my death, to be
managed and distributed as hereinafter provided.
() One trust collectively for the then living issue of each deceased child,
which trust shall be distributed to such issue, upon the principle of representation.
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[Comment: user has several different options here for how to set up the trust. Carefully
read each section and choose each paragraph according to user’s desire. Indicate the choise
by marking an “X” in the highlighted space provided]
1. Distribution of Trust Estate [Option: Family "pot trust" for kids - - property kept
together in one trust until a certain time when it is then divided into separate trusts
for each kid]
() 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
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.
() When all of my 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-
() When all of my children shall attain the age of _____________ years or
shall die, the trust estate shall be divided into separate, equal trusts as follows: One trust for each
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then living child of mine, and one trust collectively for the then living issue of each deceased
2. Distribution of Child's Trust
() The net income of a child's trust shall be distributed to or applied of the
benefit of the child in monthly or other convenient installments.
() 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.
() [Option] 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.
() [Option] 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
3. Distribution After Death of Child
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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
4. Cross Remainder Provision
A. Except to the extent expressly provided to the contrary in any other provision
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.
B. 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.
5. 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.
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6. 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
California then in force relating to separate property not acquired from a parent, grandparent or
previously deceased spouse.
7. Limitations On Outright Distributions
_________________________________________ [Comment: user may place a limitation on
outright distributions, for example gifts to minors]
8. Maximum Duration of Trust
A. 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.
B. 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
distributions therefrom in the discretion of the Trustees as follows:
i. 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.
ii. If section (i) 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.
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C. 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.
9. 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
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.
10. 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.
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11. 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.
IV. PROVISIONS REGARDING FIDUCIARIES
1. 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: __________________, __________________.
2. Appointment of Trustees
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: __________________,__________________.
3. 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.
4. 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
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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.
5. No Bond
No bond shall be required of any fiduciary, whether such fiduciary shall serve
alone or together with one or more co-fiduciaries.
6. 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
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
7. 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
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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.
8. Compensation of Fiduciaries
Any fiduciary shall be entitled to reasonable compensation.
9. Provisions Regarding Co-Fiduciaries
The following provisions shall apply whenever two or more fiduciaries shall be
acting together, and the provisions of subparagraphs (D) and (F) of this paragraph also shall
apply to any person acting as sole fiduciary:
A. 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 fiduciary 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.
B. 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
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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.
C. In the absence of such written medical evidence of the fiduciary's incapacity,
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.
D. Any incapacitated fiduciary shall be deemed to have resigned automatically,
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 (B) 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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E. 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.
F. 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
G. 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
V. POWERS AND GENERAL PROVISIONS
A. 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
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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 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. In
addition, the Executors and Trustees shall have each and all the powers set forth
in sections _________ through _________, inclusive, of the [Comment: insert
any relevant code sections in your state].
B. 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.
2. General Provisions
A. 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.
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B. If any provision of this Will is unenforceable, the remaining provisions
nevertheless shall be carried into effect.
C. 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.
D. 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 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.
E. 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.
F. 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.
G. The aggregate amount of family allowance paid to any person during probate
administration shall be charged to and subtracted from the income earned during
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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.
H. The use of the word "shall" herein indicates a mandatory action or inaction,
while the use of the word "may" indicates a permissive, but not mandatory, action
I. 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
J. The term "proportionately" as used in this Will shall mean equally with respect
to all trusts set aside for my 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.
VI. TAX PROVISIONS.
1. Payment of Taxes
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A. Subject to any contrary provisions in this paragraph, all estate and inheritance
taxes (including penalties and interest) payable by reason of my death shall be
paid as follows:
i. All such taxes attributable to property subject to probate administration
shall be paid from the residue of my probate estate.
ii. 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
2. 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.
The foregoing instrument is subscribed by me on the ___ day, at _____________,
__________________ [Comment: insert city and state].
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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 the ___ day, at _____________, __________________ [Comment: insert
city and state] residing at _______________________.
2. Executed on the ___ day, at _____________, __________________ [Comment: insert
city and state] residing at _______________________.
3. Executed on the ___ day, at _____________, __________________ [Comment: insert
city and state] residing at _______________________.
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