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Four Common Will Provisions And The Reasons Behind Them


Wills are documents executed by “testators” that describe what the testators want to happen to their assets after they die. If a person dies with a Will, their assets are distributed according to their Will. On the other hand, if a person dies without a Will, their assets are distributed according to the state’s intestate succession laws. In this article, we discuss the rationales behind four common Will provisions.

Provision #1: A Residuary Clause

When testators write a Will, they provide instructions on how their assets should be distributed upon death. Testators make specific bequests, or gifts, like stating their daughter should get all the jewelry and their son should get the rental property. However, some assets may be left over after the distribution of specific bequests. Assets that remain after bequests have been distributed make up the residuary estate. For example, assets and bequests not identified in the Will are part of the residuary estate. Also, personal property that is not valuable enough to be named in a Will is part of the residuary estate.

A residuary clause in a Will captures any assets in the residuary estate and allows the assets to go to specific beneficiaries. Residuary clauses identify the individual or entity that is to receive any assets that are not otherwise distributed. Without a residuary clause, the probate court will decide who gets the assets in the residuary estate.

Provision #2: Attestation Clause

This clause deals with the witnessing of the testator’s signature. The attestation clause is that clause wherein witnesses to the testator’s signature certify that the Will has been executed before them and the manner of the execution of the Will. If there is no attestation clause, an affidavit made by a witness detailing the signing and witnessing of the Will is required when the application of probate is made. If witnesses are unavailable, anyone else present during the execution of the Will can provide the affidavit.

Provision #3: Designation of Fiduciaries

Another common provision of a Will is the designation of fiduciaries. The person named as executor is responsible for administering the deceased person’s estate. After a testator dies, the person named as executor is responsible for seeking permission from the court to access the decedent’s assets, gather them, pay necessary expenses, and distribute the necessary assets. Often, the role of the executor is bestowed upon a family member or close friend, but anyone can be named and appointed as executor as long as they meet the legal requirements. In California, the two most basic requirements for executors are;

  1. They must be at least eighteen years of age, and
  2. They must be of sound mind.

Provision #4: Guardianship Designations

Finally, in a Will, you may find a testator’s preference for their minor children. Usually, these provisions kick in if both the children’s parents are dead. However, it is crucial to note that courts make guardianship decisions based on the child’s best interests. This means that the court will not make a decision based on the testator’s instructions if it believes such a decision is not in the child’s best interests. That said, these provisions carry a lot of weight within courts and will generally be respected.

Contact the Probate Guy for Legal Help

If you have any probate-related questions, contact the dedicated California probate attorney, Robert L. Cohen – The Probate Guy – today to schedule a telephonic consultation.

Southern California Probate Lawyer Serving Orange, Riverside, Anaheim, Whittier & Beyond.

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