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Wills may be constructed to fit many familial situations

On Behalf of | Mar 22, 2017 | Wills

The prospect of a married couple dying simultaneously or near to each other, such as in an accident, is slim but it does happen. An estate planning attorney in California or elsewhere will consider that prospect when making mutual wills for a couple. The provision becomes important especially where there are young children to be considered.

The standard clause for this is a survivorship clause in each will, which provides for the economic and personal care of the minor children if the spouses die within 30 or 60 days of each other. In that event, the guardian or trustee of the monetary assets is designated and the terms to guide the trustee are established. The testators also appoint a guardian of the person of the children where both parents are deceased.

Usually, a married couple will have agreed on the guardians and the spousal wills are likely to mirror each other. In other situations, similar but somewhat different kinds of provisions may be used. Where there are no children, a provision may be needed to cover where there is another beneficiary who dies close in time to the maker. The will may say that if a beneficiary dies within 60 days of the makers’ death, then that beneficiary shall be deemed to have predeceased the maker.

That provision would leave the distribution to all other beneficiaries without the interest of the deceased beneficiary being considered. Other designations can be chosen, however, if another option is desired. Thus, the will may make it clear that the deceased beneficiary’s interest shall pass to that beneficiary’s heirs.

In the estate planning parlance in California and elsewhere, that last eventuality is often called “per stirpes,” meaning that the share of the predeceased beneficiary will go to that person’s heirs. The bottom line is always that the wills be set up to reflect most closely the wishes of the makers. It is always best to obtain the services of an experienced estate planning attorney to assure full compliance with both the law and the testator’s wishes. With many different familial relationships to consider, the specific drafting may be complicated. 

Source:, “Planning for simultaneous deaths“, Christopher Yugo, March 5, 2017


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