The Probate Process in California
Responsibilities of Executor or Administrator
Out-of-State Issues During Probate
Written Gift List (Outside Of The Will)
CALIFORNIA PROBATE CODE §6132
Before he died, my grandfather gave me his pocket watch. When I pass on, I want to leave the pocket watch to my son. Likewise, my wife received her mother’s wedding ring as a gift and on my wife’s death she wants to give the wedding ring to our daughter. Do we need a will describing the gifts or can we create separate written gift lists to make those gifts?
You will likely need a will but the gifts need not be specified in the will. They can be set forth in a separate writing that conforms to the requirements of California Probate Code §6132.
California Probate Code §6132 permits a will to refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will. Each gift cannot exceed $5000 and the total value of tangible personal property identified and disposed of by the writing may not exceed $25,000. Presumably, these values are determined at date of death. If a writing not part of the will attempts to convey an article of tangible personal property worth more than $5,000 or totaling more than $25,000 the conveyance will be invalid and the property passes as directed in the will or if no direction the “remainder clause” of the will.
A writing that meets the requirements of §6132 will be given effect as if it were actually contained in the will itself, except that if any person designated to receive property in the writing dies before you, the property shall pass as further directed in the writing and, in the absence of any further directions, the disposition shall lapse. The will would then control and the property would pass as directed in the will or if no direction the “remainder clause” of the will.
The §6132 writing may be written or signed by you before or after the execution of the will. You may make subsequent handwritten or signed changes to the writing and the most recent writing controls the disposition.
A writing directing disposition of your tangible personal property is effective if all of the following conditions are satisfied:
(1) An unrevoked will refers to the writing.
(2) The writing is dated and is either in the handwriting of, or signed by, you.
(3) The writing describes the items and the recipients of the property with reasonable certainty.
The term “tangible personal property” is defined as articles of personal or household use or ornament, including, but not limited to, furniture, furnishings, automobiles, boats, and jewelry, as well as precious metals in any tangible form, such as bullion or coins and articles held for investment purposes. The term does not mean real property, a mobile home, intangible property, such as evidences of indebtedness, bank accounts and other monetary deposits, documents of title, or securities.
If you are trying to determine whether a writing outside of a will legally disposes of tangible personal property or you are considering whether to probate an estate you may not know what to do. That is where I can be of help. I make a difficult and bewildering probate process as simple as possible. If you wish to gain more information on California probate or if you need the general assistance of a probate lawyer, please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.