INTER VIVOS TRUSTS
taken from Bancroft Whitney
forms and practice
for limited educational use
note: materials and laws may be dated
§ 42:101 In general
An inter vivos, or "living," trust is an important estate planning device. While a transfer to a trust is generally subject to the gift tax laws, such a transfer may result in a savings to the settlor of income and estate taxes.
The use of inter vivos trusts, in certain instances may avoid probate expense and delay as well as publicity about the settlor's estate. Such a trust may also relieve the settlor of the problems of management of property and protect the settlor in the event of the settlor's own incompetency. The inter vivos trust is also valuable in creating authority and capacity in an experienced and reliable person or qualified trust company to apply the income and corpus of the trust property to a beneficiary's needs as they arise in the future
Note: If a trust provides for one or more successor beneficiaries after the death of the settlor, the trust is not invalid, merged, or terminated where there is one settlor who is the sole trustee and the sole beneficiary during the settlor's lifetime or where there are two or more settlors, one or more of whom are trustees, and the beneficial interest in the trust is in one or more of the settlors during the lifetime of the settlors. Prob C § 15209.
Trusts for minors qualifying for annual gift tax exclusion
Gifts in trusts to minors are quite common, both as a means of building up a child's estate and as a way to minimize federal gift, income53 and estate taxes payable by the settlor or the settlor's estate. A carefully drafted minor's trust can provide competent management of the property on the minor's behalf, while avoiding any problem of the minor's disability to act with respect to that property. Such a trust can effect substantial tax savings for the settlor-donor while regulating distribution of the trust income and principal in keeping with the needs of the minor. In order that the gift in trust qualify for the annual gift tax exclusion, the trust must conform to the requirements of Section 2503(c) of the Internal Revenue Code54 and the regulations issued thereunder.55 Generally, such gifts qualify for the exclusion if the property and the income therefrom may be expended by or for the benefit of the minor before he or she reaches the age of 21 years and will to the extent not so expended pass to the minor on his or her reaching 21; or, in the event the minor dies before attaining the age of 21, will be payable to the minor's estate or as the minor may appoint under a general power of appointment. The trustee may be given the power in the trustee's discretion to accumulate part or all of the income during the beneficiary's minority. On the other hand, the trust agreement must provide for invasion of corpus, and no substantial restriction can be imposed on the discretionary powers to accumulate or to invade. In some circumstances, a gift of trust income alone, without any distribution of corpus, can be made to qualify for the exclusion, to the extent of such income interest. Thus, if the value of the income interest in the property transferred in trust will exceed the amount of the available exclusion, it is not necessary to give the trustee the same broad discretion over the principal. The trustee need only be given broad discretion as to income and accumulated income.
The Crummey Demand Trust is one under which a minor beneficiary or his or her guardian may make demand on the trustee for the distribution of an amount equal to the gift to the trust in any given year by any single donor or of the amount of the annual gift tax exclusion then in effect per donor, whichever is less. Since the beneficiary has a present interest in a trust property subject to his or her demand rights, the gifts to the trust qualify for the annual gift tax exclusion.57
Footnote 53. ūNote: The amount of income tax savings from shifting income is sharply limited if the beneficiary is under age 14. The reason for this is the "kiddie" tax which causes a child under age 14 to be taxed at his or her parent's rate on investment income over a specified amount. 26 USCS § 1(g).
Footnote 54. See 26 USCS § 2503(c).
Footnote 55. See 26 CFR § 25.2503-4.
Note: As to California Uniform Transfers to Minors Act, see Prob C §§ 3900 et seq.
Footnote 56. See 26 USCS § 2503.
Inter vivos trusts of life insurance policies have come into wide use. One principal advantage of insurance trusts is that they permit a greater flexibility in investment and distribution than may be effected under settlement options generally included in the policies themselves. Another advantage is that such trusts, like other gifts of insurance policies, may afford substantial estate tax savings.58
An insurance trust may be either funded or unfunded, revocable
or irrevocable, and may be created by either the insured or another.
In an unfunded insurance trust, either the policy is paid up or
the settlor, or another, contemplates making future periodic premium
ūObservation: Insurance companies sometimes require the filing with them of any trust agreement relating to one of their policies before they will make payment of the proceeds in accordance with that agreement.
Generally, life insurance proceeds are includible in the insured's
gross estate for federal estate tax purposes only if the proceeds
are payable to the insured's estate or if the insured possessed
at the time of his or her death "any of the incidents of
ownership" in the policy, exercisable either alone or in
conjunction with another.59
ūCaution: The term "incidents of ownership"
includes, among other powers and interests, any power to revoke
the trust or to change beneficiaries. Therefore, to remove the
insurance proceeds from the insured's estate, the trust must be
irrevocable and must not be subject to amendment with regard to
the beneficial interest. The trust must be drafted, generally,
so as to effect a complete divestment of the insured's rights
in a policy.60
Footnote 58. ūNote: As to statutory provisions relating to nonprobate transfers to a trustee named in decedent's will, see Prob C §§ 6320 et seq.
Footnote 59. 26 USCS § 2042.
Footnote 60. ūTax Caution: Transfers of life insurance policies made within three years of the death of the transferor are included in the transferor's gross estate for estate tax purposes. 26 USCS § 2035(a) and (b).
As to liability of life insurance beneficiaries for federal
estate tax on insured's estate, see 26 USCS § 2206.
The "sprinkling" or "spray" trust, in which the trustee or trustees are given the power to determine how the trust's income or principal, or both, are to be allocated among a group of specified beneficiaries or within a designated class of beneficiaries, is a popular device. The advantages are the flexibility permitted in distributing income or principal to those beneficiaries who need it most and the income tax savings possible by channeling distributions to beneficiaries in the lowest tax bracket. Other advantages of the sprinkling trust are that it provides a built-in spendthrift feature and that it affords opportunities for estate tax savings.
Generally, the federal income tax consequences for the settlor
vary with the type of trustee or other holder of the power to
sprinkle income and principal. So-called "independent trustees"
may be given broad sprinkling powers over income and principal,
including the power to accumulate income, even though no standard
is provided for the exercise of such power.61 Trustees other than
the settlor or the settlor's spouse if living with the settlor,
must be given the powers to distribute or to accumulate income,
provided the powers are limited by a reasonably definite external
standard. Only limited powers over income and principal may be
held by anyone, including the settlor, without tax to the settlor
on the trust income: the power to distribute principal to either
income beneficiaries or remaindermen, provided such power is limited
by a reasonably definite standard; the power to distribute principal
to income beneficiaries, without any standard, provided the distribution
is chargeable against the proportionate share of principal held
in trust to pay income to such beneficiaries; and the power to
accumulate or withhold income temporarily, during disability or
minority of income beneficiaries, provided the accumulation does
not substantially affect the ultimate vesting of the income.62
ūObservation: For purposes of the federal gift tax, the
annual gift tax exclusion63 is generally not available on sprinkling
trusts because the property transferred is not considered a present
interest, even as to the income that the trustee is given power
to apportion among beneficiaries.
If the trust is irrevocable, the property of the trust is generally not subject to federal estate tax in the settlor's estate.64
ūCaution: The "generation skipping" transfer
tax65 requires caution in the establishment of sprinkling trusts,
since the power to establish or alter the beneficial enjoyment
of the income or corpus of the trust makes the trustee one of
the persons whose death or other relinquishment of power or interest
will trigger such tax unless the only permissible recipients of
the sprinkling power are lineal descendants of the settlor of
a generation younger than the trustee.66
Footnote 61. See 26 USCS §§ 672 and 674(c).
Footnote 62. See 26 USCS §§ 641, 651, 652, 661, 662, 674(d).
ūNote: An accumulation of the income of property may
be directed by any trust in writing sufficient to pass the property
or create the trust out of which the fund is to arise, for the
benefit of one or more persons, objects or purposes, but may not
extend beyond the time permitted for the vesting of future interests.
CC § 724(a).
Footnote 63. 26 USCS § 2503(b).
Footnote 64. 26 USCS §§ 676 and 2038.
Footnote 65. 26 USCS §§ 2611 et seq.
Form drafting principles
The elements essential to an inter vivos trust agreement are
those required in creating any valid express trust.67 The language
employed should clearly indicate the settlor's intention that
specific property be held by a trustee and that the income and
principal of such trust be devoted to a specific purpose for an
indicated period of time.68
ūObservation: An inter vivos trust agreement ordinarily takes the form of a contract between the settlor and the trustee. The corpus, or principal, is either described in the instrument or in an annexed schedule. The trustee usually acknowledges receipt of the property in the trust instrument.
Footnote 67. As to form drafting principles of trusts, generally, see §§ 42:11 et seq.
Footnote 68. ūNote: As to statutory provisions relating to the nature and creation of a trust, see Prob C §§ 15200 et seq.
Form drafting principles--Checklist--Matters to be considered
in drafting inter vivos trusts, generally
1. Settlor or settlors.
c. Relationship between settlors, if any.
2. Trustee or trustees.
a. Names and addresses.
b. Settlor or settlor's spouse as trustee.
c. Bank or corporate trustee.
d. "Adverse party" as trustee.
e. "Independent trustee."
3. Words of transfer, conveyance and delivery in trust.
4. Name of trust.
5. Income beneficiaries.
c. Relationship to settlor.
d. Ages of minor beneficiaries.
e. Successive beneficiaries.
c. Relationships to settlor.
7. Duration of trust; perpetuities savings clause.
8. Purpose of trust.
9. Consideration, if any.
10. Description of trust property.
a. Property described in attached schedule.
c. Real estate.
d. Stock and other securities.
e. Insurance policy or policies.
f. Other personal property.
11. Additions to trust.
12. Revocability of trust.
b. Revocable by sole settlor or by designated member or by all of several settlors.
13. Dispositive provision.
a. Payment of income generally.
b. Withholding of income from a beneficiary.
c. Application of income to beneficiary's support.
d. "Sprinkling" of income among class of beneficiaries.
e. Accumulation of income.
f. Invasion of trust principal.
g. Limitations or standards for exercise of dispositive powers.
14. Power of appointment.
c. Power in settlor.
d. Power in beneficiary or third party.
15. Distribution of trust principal on termination of trust.
a. In cash after liquidation of trust assets.
b. In kind.
c. In cash or in kind at discretion of trustee.
d. Specify proportions of trust remaindermen.
16. Termination of trust.
a. On settlor's death.
b. On income beneficiary's death or attaining specified age.
17. Authority and tenure of trustees.
a. Action by multiple trustees.
b. Retention of interest or control by settlor.
c. Resignation or removal.
d. Successor trustees.
18. Powers of trustees.
a. Discretionary power.
b. Restrictions on powers.
c. Retention of trust property.
d. Sale or exchange of trust property.
e. Lease of trust property.
f. Scope of investment.
g. Borrowing money and encumbering trust assets.
i. Operation of business.
j. Compromise of claims.
k. Allocation of receipts and expenses between trust income and principal.
l. Agents and consultants.
19. Rights, duties and liabilities of trustees.
a. Duty of care.
c. Limitation on liability.
20. Powers retained by settlor.
a. Revocation or amendment.
b. Change of beneficiary.
c. Change of disposition of income or principal.
d. Management and investments.
e. Limitations or standards for exercise of powers.
21. Alienability of beneficial interest.
22. Payment of federal estate taxes on settlor's trust.
23. Incontestability or forfeiture provision.
24. Severability of provisions.
25. Law to govern construction and operation of trust.
26. Acceptance of trust by trustee or trustees.
28. Acknowledgments, if necessary or desired.
Form drafting principles--Checklist--Matters to be considered
in drafting trust for minors qualifying for annual gift tax exclusion
1. Settlor or settlors.
a. Names and addresses.
b. Status as husband and wife.
c. Other relationship between settlors.
2. Trustee or trustees.
3. Words of transfer and delivery in trust.
a. Names and addresses.
b. Relationships to settlor or settlors.
5. Purpose of trust; statement that trust benefits are in addition to settlor's performance of legal obligations to beneficiary.
6. Description of trust property.
7. Additions to trust.
8. Irrevocability of trust.
9. Disposition of income and principal that may be expended by or for benefit of beneficiary before he or she reaches age 21.
a. Current income distribution.
b. Power to accumulate income, if desired, subject to no substantial restriction on trustee's discretion.
c. Power of invasion, subject to no substantial restriction on trustee's discretion.
d. Distributions for support of beneficiary, if not otherwise adequately provided for.
10. Manner of disposition during beneficiary's minority.
a. Directly to minor.
b. To legal guardian or relative for benefit of minor.
c. Expenditure by trustee for minor's benefit.
11. Distribution of principal and accumulated income to beneficiary on attaining age 21.
12. Distribution of principal and accumulated income, in event beneficiary dies before reaching age 21.
a. To beneficiary's estate.
b. As beneficiary may appoint under general power of appointment.
c. In default of appointment, to designated alternative beneficiaries.
13. Powers of trustees.
a. List of general powers.
b. Power to make joint investments with trustees of similar trusts created by settlor.
c. Powers to be discretionary rather than mandatory.
14. Disclaimer of powers by settlor.
a. Disclaimer of powers over beneficial enjoyment or administration that would render settlor subject to income tax.
b. Disclaimer of powers or rights that would render all or part of corpus includible in settlor's gross estate for estate tax purposes.
15. Resignation and succession of trustees.
16. Spendthrift clause.
17. Law to govern construction and operation of trust.
18. Acceptance of trust by trustee.
20. Acknowledgments, if necessary or desired.
This checklist comprises matters to be considered in drafting
an agreement setting up an inter vivos trust for a minor that
conforms to the requirements of 26 USCS § 2503(c). It should
be used in conjunction with the more extensive general checklist
at § 42:106.
GENERAL REVOCABLE TRUSTS
Revocable trust--General form
Trust agreement made __________ [agreement date], between __________
[name of settlor], of __________ [settlor address], County of
__________ [settlor county], State of California, as settlor,
and __________ [name of trustee], of __________ [trustee address],
County of __________ [trustee county], State of __________, as
In consideration of the mutual covenants and promises set forth herein, settlor and trustee agree:
Settlor hereby assigns, transfers and conveys to trustee the property described in Schedule A, annexed and incorporated by this reference. Receipt of such property is hereby acknowledged by trustee. The property shall be held by trustee in trust on the terms and conditions herein set forth.
Revocation and Amendment
Settlor reserves the right at any time, by an instrument in writing delivered to trustee to revoke or amend this trust in whole or in part. The duties and liabilities of trustee shall under no circumstances be substantially increased by any amendment hereunder except with trustee's __________ [type of consent, such as: written] consent.
Additions to Trust Estate
Settlor reserves the right for __________ [settlor himself or herself] or any other person to increase this trust by delivering property to trustee, by having the proceeds of insurance policies made payable to trustees, or by bequest or devise by will. Settlor will notify trustee in writing of any policies made payable to trustee as custodian thereof. Trustee's duties and liabilities hereunder shall under no circumstances be substantially increased by any such additions, except with trustee's __________ [type of consent, such as: written] consent.
Disposition of Income and Principal
After paying the necessary expenses incurred in the management
and investment of the trust estate, including compensation of
trustee for trustee's own services, trustee shall pay the net
income of the trust and distribute the principal of the trust
in the following manner:
__________ [terms re: payment of income and distribution of trust principal (see Secs. 42:401 et seq.)].
Invasion of Principal for Benefit of Settlor's Surviving Spouse and Descendants
After settlor's death, trustee may apply so much of the principal of the trust for the use of settlor's spouse, __________ [settlor spouse name], and settlor's descendants, or any of them, at such time or times as, in trustee's discretion, trustee may deem advisable for their proper education, health or support. The provisions of this Section are intended primarily as a means of affording financial assistance to settlor's spouse and children in the event of their serious illness, misfortune or other emergency or unusual condition. The provisions of this Section are also intended to assist settlor's descendants during the period of their education or setting up in business or at the time of their marriages. This enumeration is to serve only as a guide and shall not be construed to restrict the discretionary powers so conferred on trustee. Any amount so applied to the use of settlor's spouse or any descendant shall be charged against, or deducted from, the principal of any share then, or thereafter, set apart for such spouse or descendants.
Distributions to Minors
Trustee, in trustee's discretion, may make payments of income or principal applicable to the use of any minor hereunder by paying the same to the parent or guardian of such minor, or to any other person having the care and control of such minor, or by expending any payment of income or principal in such other manner as trustee, in trustee's discretion, believes will benefit such minor. Trustee may also pay as an allowance directly to the minor such sums as trustee may deem advisable. Trustee may accumulate for the benefit of any minor so much of any income applicable to such minor's use as trustee in trustee's discretion may deem advisable, and any income so accumulated shall be paid to the minor upon such minor's attaining majority. Trustee, in trustee's discretion, may make payments of principal vesting in and payable to a minor, to such minor's parent or guardian, or may defer payment of any part or all thereof until the minor attains majority, meanwhile applying to such minor's use so much of such principal and of the income thereof, and at such time or times, as in trustee's discretion it may deem advisable for such minor's proper education, health or support. Any payment under this Section shall operate as a full discharge to trustee with respect thereto.
Powers of Trustee
__________ [terms re: trustee’s powers, as desired (see Secs. 42:561 et seq.).]
Transactions with Third Persons
No person or corporation dealing with trustee shall be required to investigate trustee's authority to enter into any transaction or to administer the application of the proceeds of any transaction.
Compensation of Trustee
__________ [terms re: trustee’s compensation or waiver thereof (see Secs. 42:521 et seq.).]
Removal and Resignation of Trustee
Trustee may be removed at any time by settlor or, after settlor's death, by __________ [name of person authorized to remove trustee] by written notice to trustee. Trustee may resign by written notice to settlor during settlor's lifetime or, after settlor's death, by written notice to __________ [designate name]. Until the accounts of trustee are settled and trustee is discharged, trustee shall continue to have all the powers and discretions granted to trustee hereunder or conferred by law. In the event of removal or resignation of trustee, settlor or __________ [designate name] may, by written instrument, appoint a successor trustee. Such successor trustee, on executing a written acceptance of the trusteeship and on the settlement of the accounts and discharge of the prior trustee, shall be vested, without further act on the part of anyone, with all of the title, powers, duties, immunities and discretions granted to the original trustee.
Employment of Agents; Expenses of Trust
Trustee may employ agents, including counsel, and pay them reasonable compensation. Trustee shall be entitled to reimbursement therefor and for all other reasonable expenses and charges of the trust out of principal or income, as trustee shall determine.
This trust shall be governed and construed in all respects according to the laws of the State of California.
This agreement shall be binding on settlor, settlor's executor,
administrator, successors and assigns, and trustee and trustee's
successors and assigns.
In witness whereof, settlor and trustee have executed this agreement at __________ [execution location] the day and year first above written.
__________ [If applicable, add consent of spouse, such as the following:
APPROVAL AND CONSENT OF TRUSTOR'S SPOUSE
I, __________ (settlor spouse name), state that I am the __________
(husband or wife) of the settlor named in the foregoing trust
agreement, dated __________ (agreement date). I have read and
understand all of its provisions, including the fact that __________
(name of settlor) has conveyed or transferred my share of the
community property described in Schedule A to the trustee, and
the fact that the trust agreement has provisions that will govern
my interest in such community property on the death of the settlor
or myself. I approve the agreement and consent that all property
originally or hereafter contributed to such trust shall be held,
administered, and distributed as provided in the agreement, and
I agree to be bound thereby.
(Signature of settlor spouse)]
[Attach schedule of property]
ūReminder: The settlor continues to be taxed on the income of a revocable trust and the trust principal will be included in settlor's gross estate at his or her death. 26 USCS §§ 676 and 2038.
ūReminder: Any documents necessary to effect transfer of title to trust property from the settlor to the trustee should be prepared for execution contemporaneously with execution of the trust agreement. Note also that if the trust concerns real property or interests therein, it may be recorded, in which case it must be acknowledged. In most cases, however, only the deed(s) actually transferring the property will be recorded.
Legal Periodicals: Current trends and techniques in the use of and drafting of revocable trusts. 47 J Taxation 332.
ūNote: As to testamentary additions to trusts, see Prob C § 6300.
Annotations: Exercise by will of trustor's reserved power to revoke or modify inter vivos trust, 81 ALR3d 959..
ūNote: As to California Uniform Transfers to Minors Act, see Prob C §§ 3900 et seq. As to statutory provisions relating to devises subject to the California Uniform Transfers to Minors Act, see Prob C §§ 6341 et seq.
Annotations: What gifts in trust to a minor "may be expended by, or for the benefit of" the donee so as to qualify for gift tax exemption within the provisions of 26 USCS § 2503(c)(1). 3 ALR Fed 973.
ūNote: As to statutory provisions relating to the obligations of trustees, see Prob C §§ 16000 et seq. As to trustee's statutory powers, see Prob C §§ 16200 et seq.
Proof of Facts: Fiduciary's breach of investment duties. 1 Am Jur Proof of Facts 2d 467.
ūNote: As to statutory provision for compensation of trustees, see Prob C §§ 15680 et seq.
Annotations: Right of trustee to compensation on corpus withdrawn from the trust, 18 ALR2d 1379.
--Fiduciary's compensation on estate assets distributed in kind, 32 ALR2d 778.
--Right to double compensation where same person (natural or corporate) acts as executor and trustee, 85 ALR2d 537.
--Limiting effect of provision in contract, will, or trust instrument fixing trustee's or executor's fees, 19 ALR3d 520.
--Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 96 ALR3d 1102.
ūNote: As to statutory provisions relating to succession and appointment of new trustees, see Prob C §§ 15600 et seq.
Annotations: Trustee's power to employ broker or agent to sell or lease estate property, 47 ALR2d 1379.
--Right of coexecutor or cotrustee to retain independent legal counsel, 66 ALR2d 1169.
Married person's "pour-over" will--Residue to living trust
Will of __________ [name of testator]
I, __________ [name of testator], __________ [if known by other names, add: also known as __________ (name) and __________ (name)], of __________ [testator address], County of __________ [testator county], State of California, declare this to be my last will.
I revoke all previous wills and codicils.
I declare that I am married and that my __________ [husband's or wife's] name is __________. All references in this will to my __________ [husband or wife] are to __________ [him or her]. I have __________ [number of testator children] children whose names and birthdates are as follows:
__________ born __________,_____
__________ born __________,_____
__________ born __________,_____
[Repeat as necessary.]
References in this will to "my children" include the children listed above and any children that may hereafter be born to or adopted by me.
I confirm to my spouse my spouse's one-half community property interest in all community assets passing under or outside of this will. I intend that this will dispose of all property subject to my testamentary power.
I give to my __________ [husband or wife], if __________ [spouse he or she] survives me __________ [if desired, add: for __________ (number) days], any interest I may have in the residence in which we may be living at the time of my death, subject to any mortgage or other encumbrance and all unpaid real estate taxes and special assessments which are a lien at the date of my death. If my __________ [husband or wife] does not so survive me, this gift shall lapse and my residence shall become a part of the residue of my estate.
I give to my __________ [husband or wife], if __________ [spouse he or she] survives me __________ [if desired, add: for __________ (number) days], any interest I may have in __________ [insert items desired, such as: household furniture, all furnishings and fixtures, jewelry, china, silverware, books, pictures, clothing, and all other items of domestic, household, personal use, or adornment, and all automobiles, boats, and other motor vehicles]. If my __________ [husband or wife] does not so survive me, then I give the property described in this Clause to my children in equal shares.
All the residue of my estate, I give to __________ [name of trustee; if corporate trustee add: a corporation, or any successor or assign of the corporation, whether by way of consolidation, merger, transfer, or otherwise], as trustee under that certain trust agreement, dated __________ [trust agreement date] wherein I am the settlor and __________ [name of trustee] is the trustee. I direct that such residue shall be added to and commingled with the trust property of such living trust and shall be held, managed, administered, and distributed under the terms and provisions of such trust agreement and any amendments thereto made prior to or after my death, it being my intention not to create a separate or testamentary trust nor to subject such living trust to the jurisdiction of any probate court.
I appoint as executor hereof __________ [name of executor] __________ [if desired, add: to serve without bond] __________ [if corporate executor, add: a corporation, or any successor or assign of such corporation, whether by way of consolidation, merger, transfer, or otherwise]. I authorize my executor to sell, lease, or mortgage the whole or any part of my estate at either public or private sale, with or without notice, but subject to such confirmation as may be provided by law.
If my __________ [husband or wife] predeceases me, I appoint
__________ [name of guardian] as guardian of the persons of my
minor children, to serve without bond.
I sign my name to this will this __________ [execution date, such as: First] day of __________ [execution month, such as: January], _____ [execution year, such as 1994], at __________ [execution location], County of __________ [execution location county], State of California, in the presence of __________ [name of witness], __________ [name of witness], and __________ [name of witness], attesting witnesses, who subscribe their names hereto at my request and in my presence.
[Signature of testator]
On the date last above written, __________ [name of testator],
known to us to be the person whose signature appears at the end
of this will, declared to us, the undersigned, that the foregoing
instrument, consisting of __________ [number of pages in will]
pages, including the page on which we have signed as witnesses,
was __________ [testator his or her] will. __________ [Testator
He or She] then signed the will in our presence, and at __________
[testator his or her] request, in __________ [testator his or
her] presence, and in the presence of each other, we now subscribe
our names as witnesses.
We declare under penalty of perjury that the foregoing is true and correct.
__________, residing at __________
__________, residing at __________
__________, residing at __________
(See Tax Notes following § 42:171)
(See also Practice Notes following § 42:171)
ūRecommendation: The testator may desire to "pour-over" to more than one inter vivos trust. If this is the case, the pour-over provision should be modified to set out each of the trusts to which the pour-over is to be made, and the percentage to be poured over to each trust.
ūReminder: The will must be witnessed by being signed by at least two persons, each of whom, 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 each of whom understand that the instrument they sign is the testator's will. Prob C § 6110(c).
ūNote: For discussion of requirements for the execution of a will and discussion of attestation requirements, see Wills (Ch 41).
Annotations: "Attestation" or "witnessing" of will, required by statute, as including witnesses' subscription, 45 ALR2d 1365.
--Failure of attesting witness to write or state place of residence as affecting will, 55 ALR2d 1053.
--Effect of failure of attesting witness to observe testator's capacity, 69 ALR2d 662.
§ 42:173 Unmarried person's will with testamentary trust for children