Bill Text: CA AB3095 | 2017-2018 | Regular Session | Amended
Bill Title: Wills: electronic wills and electronic records.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-04-02 - Re-referred to Com. on JUD. [AB3095 Detail]
Download: California-2017-AB3095-Amended.html
|
Amended
IN
Assembly
March 22, 2018 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 3095 |
| Introduced by Assembly Member Santiago |
February 16, 2018 |
An act to amend Section 815.3 of the Civil Code, relating to real property. amend Sections 1633.2 and 1633.3 of the Civil Code, and to amend Sections 6110, 6111, 6113, 6130, 6132, 6221, 6240, 6320, 6382, 6383, and 6384 of, to add Sections 6006 and 6114 to, and to add Chapter 2.5 (commencing with Section 6115) to Part 1 of Division 6 of, the Probate Code, relating to wills.
LEGISLATIVE COUNSEL'S DIGEST
AB 3095, as amended, Santiago.
Conservation easements. Wills: electronic wills and electronic records.
Existing law generally requires a will to be in writing and satisfy specified requirements of the Probate Code. Existing law requires a will to be signed by the testator or in the testator’s name by some other person in the testator’s presence and by the testator’s direction. A will that fails to meet those requirements may be valid as a holographic will. Existing law also allows for the execution of a California statutory will.
This bill would authorize a testator to execute an electronic will that, among other things, is created and maintained as an electronic record, as defined, contains the electronic signature of the testator, contains the date and time of the electronic signature, and includes an authentication method, as defined, that is attached to or
logically associated with the electronic will to identify the testator. The bill would authorize the electronic document, as defined, to be retained in the custody of a qualified custodian, authorized by the testator, that meets specified requirements and would prescribe methods to change the qualified custodian, including requiring specified affidavits to be made by the qualified custodian. By requiring affidavits that are made under oath, this bill would expand the crime of perjury and would impose a state-mandated local program. The bill would authorize an electronic will to be converted into a certified paper original, as specified. The bill would define new terms for these purposes, and would make conforming changes to related provisions.
Among other things, existing law authorizes a writing in existence when a will is executed to be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its
identification. Existing law authorizes a will to refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will, if certain criteria are met.
This bill would expand the application of those provisions to electronic records and allow electronic records to be used instead of writings for those purposes, among others. The bill would authorize, among others, a video recording or other electronic record to be admissible as evidence of the proper execution of a will, the intentions of a testator, the mental state or capacity of a testator, the authenticity of the will, and matters that are determined by the court to be relevant to the probate of a will. The bill would make conforming changes to related provisions.
The California Constitution
requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law finds and declares it to be the public policy and in the public interest of California to encourage the voluntary conveyance of conservation easements to qualified nonprofit organizations. Existing law defines the term “conservation easement” for these purposes and authorizes certain entities and organizations to acquire and hold conservation easements, including the state or any city, county, city and county, district, or other state or local governmental entity, if otherwise authorized to acquire and hold title to real property and if the conservation easement is voluntarily conveyed.
This bill would make nonsubstantive changes
to that authorization.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1633.2 of the Civil Code is amended to read:1633.2.
In this title the following terms have the following definitions:(a) “Agreement” means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures given the effect of agreements under laws otherwise applicable to a particular transaction.
(b) “Automated transaction” means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract, or fulfilling an obligation required by the transaction.
(c) “Computer program” means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.
(d) “Contract” means the total legal obligation resulting from the parties’ agreement as affected by this title and other applicable law.
(e) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(f) “Electronic agent” means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review by an individual.
(g) “Electronic record” means a record created, generated, sent, communicated, received, or stored by electronic means.
(h) “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record. For purposes of this title, a “digital signature” as defined in subdivision (d) of Section 16.5 of the Government Code is a type of electronic signature.
(i) “Governmental agency” means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.
(j) “Information” means data, text, images, sounds,
codes, computer programs, software, databases, or the like.
(k) “Information processing system” means an electronic system for creating, generating, sending, receiving, storing, displaying, or processing information.
(l) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity.
(m) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(n) “Security procedure” means a procedure employed for the purpose of verifying that an electronic signature, record, or performance is that of a
specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, or callback or other acknowledgment procedures.
(o) “Transaction” means an action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs.
affairs, including the appointment of an attorney-in-fact under a power of attorney to the extent otherwise authorized under any other law.
SEC. 2.
Section 1633.3 of the Civil Code, as amended by Section 2 of Chapter 617 of the Statutes of 2016, is amended to read:1633.3.
(a) Except as otherwise provided in subdivisions (b) and (c), this title applies to electronic records and electronic signatures relating to a transaction.(b) This title does not apply to transactions subject to the following laws:
(1) A law governing the creation and execution of wills, codicils, or testamentary trusts. trusts, except as otherwise provided in Part 1 (commencing with Section 6100) of Division 6 of the Probate Code with regard to electronic wills, electronic records, and electronic signatures.
(2) Division 1 (commencing with Section 1101) of the Uniform Commercial Code, except Sections 1206 and 1306.
(3) Divisions 3 (commencing with Section 3101), 4 (commencing with Section 4101), 5 (commencing with Section 5101), 8 (commencing with Section 8101), 9 (commencing with Section 9101), and 11 (commencing with Section 11101) of the Uniform Commercial Code.
(4) A law that requires that specifically identifiable text or disclosures in a record or a portion of a record be separately signed, including initialed, from the record. However, this paragraph does not apply to Section 1677 or 1678 of this code or Section 1298 of the Code of Civil Procedure.
(c) This title does not apply to any specific transaction described in Section 17511.5 of the Business and
Professions Code, Section 56.11, 56.17, 798.14, 1133, or 1134 of, Section 1689.6, 1689.7, or 1689.13 of, Chapter 2.5 (commencing with Section 1695) of Title 5 of Part 2 of Division 3 of, Section 1720, 1785.15, 1789.14, 1789.16, or 1793.23 of, Chapter 1 (commencing with Section 1801) of Title 2 of Part 4 of Division 3 of, Section 1861.24, 1862.5, 1917.712, 1917.713, 1950.6, 1983, 2924b, 2924c, 2924f, 2924i, 2924j, 2924.3, or 2937 of, Article 1.5 (commencing with Section 2945) of Chapter 2 of Title 14 of Part 4 of Division 3 of, Section 2954.5 or 2963 of, Chapter 2b (commencing with Section 2981) or 2d (commencing with Section 2985.7) of Title 14 of Part 4 of Division 3 of, Section 3071.5 of Part 5 (commencing with Section 4000) of Division 4 of, or Part 5.3 (commencing with Section 6500) of Division 4 of this code, subdivision (b) of Section 18608 or Section 22328 of the Financial Code, Section 1358.15, 1365, 1368.01, 1368.1, 1371, or 18035.5 of the Health and Safety Code, Section 786 as it applies to
individual and group disability policies, 10192.18, 10199.44, 10199.46, 10235.16, 10235.40, 11624.09, or 11624.1 of the Insurance Code, Section 779.1, 10010.1, or 16482 of the Public Utilities Code, or Section 9975 or 11738 of the Vehicle Code. An electronic record may not be substituted for any notice that is required to be sent pursuant to Section 1162 of the Code of Civil Procedure. Nothing in this subdivision shall be construed to prohibit the recordation of any document with a county recorder by electronic means.
(d) This title applies to an electronic record or electronic signature otherwise excluded from the application of this title under subdivision (b) when used for a transaction subject to a law other than those specified in subdivision (b).
(e) A transaction subject to this title is also subject to other applicable substantive law.
(f) The exclusion of a transaction from the application of this title under subdivision (b) or (c) shall be construed only to exclude the transaction from the application of this title, but shall not be construed to prohibit the transaction from being conducted by electronic means if the transaction may be conducted by electronic means under any other applicable law.
(g) Notwithstanding subdivisions (b) and (c), this title shall apply to electronic records and electronic signatures relating to transactions conducted by a person licensed, certified, or registered pursuant to the Alarm Company Act (Chapter 11.6 (commencing with Section 7590) of Division 3 of the Business and Professions Code) for purposes of activities authorized by Section 7599.54 of the Business and Professions Code.
(h) This section
shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.
SEC. 3.
Section 1633.3 of the Civil Code, as amended by Section 3 of Chapter 617 of the Statutes of 2016, is amended to read:1633.3.
(a) Except as otherwise provided in subdivisions (b) and (c), this title applies to electronic records and electronic signatures relating to a transaction.(b) This title does not apply to transactions subject to the following laws:
(1) A law governing the creation and execution of wills, codicils, or testamentary trusts. trusts, except as otherwise provided in Part 1 (commencing with Section 6100) of Division 6 of the Probate Code with regard to electronic wills, electronic records, and electronic signatures.
(2) Division 1 (commencing with Section 1101) of the Uniform Commercial Code, except Sections 1206 and 1306.
(3) Divisions 3 (commencing with Section 3101), 4 (commencing with Section 4101), 5 (commencing with Section 5101), 8 (commencing with Section 8101), 9 (commencing with Section 9101), and 11 (commencing with Section 11101) of the Uniform Commercial Code.
(4) A law that requires that specifically identifiable text or disclosures in a record or a portion of a record be separately signed, including initialed, from the record. However, this paragraph does not apply to Section 1677 or 1678 of this code or Section 1298 of the Code of Civil Procedure.
(c) This title does not apply to any specific transaction described in Section 17511.5 of the Business and
Professions Code, Section 56.11, 56.17, 798.14, 1133, or 1134 of, Section 1689.6, 1689.7, or 1689.13 of, Chapter 2.5 (commencing with Section 1695) of Title 5 of Part 2 of Division 3 of, Section 1720, 1785.15, 1789.14, 1789.16, or 1793.23 of, Chapter 1 (commencing with Section 1801) of Title 2 of Part 4 of Division 3 of, Section 1861.24, 1862.5, 1917.712, 1917.713, 1950.6, 1983, 2924b, 2924c, 2924f, 2924i, 2924j, 2924.3, or 2937 of, Article 1.5 (commencing with Section 2945) of Chapter 2 of Title 14 of Part 4 of Division 3 of, Section 2954.5 or 2963 of, Chapter 2b (commencing with Section 2981) or 2d (commencing with Section 2985.7) of Title 14 of Part 4 of Division 3 of, Section 3071.5 of Part 5 (commencing with Section 4000) of Division 4 of, or Part 5.3 (commencing with Section 6500) of Division 4 of this code, subdivision (b) of Section 18608 or Section 22328 of the Financial Code, Section 1358.15, 1365, 1368.01, 1368.1, 1371, or 18035.5 of the Health and Safety Code, Section 662, paragraph (2) of
subdivision (a) of Section 663, Section 664, 673, or 677, paragraph (2) of subdivision (a) of Section 678, Section 678.1 or 786, paragraph (2) of subdivision (a) of Section 10086, or Section 10113.7, 10127.7, 10127.9, 10127.10, 10192.18, 10199.44, 10199.46, 10235.16, 10235.40, 10509.4, 10509.7, 11624.09, or 11624.1 of the Insurance Code, Section 779.1, 10010.1, or 16482 of the Public Utilities Code, or Section 9975 or 11738 of the Vehicle Code. An electronic record may not be substituted for any notice that is required to be sent pursuant to Section 1162 of the Code of Civil Procedure. Nothing in this subdivision shall be construed to prohibit the recordation of any document with a county recorder by electronic means.
(d) This title applies to an electronic record or electronic signature otherwise excluded from the application of this title under subdivision (b) when used for a transaction subject to a law other than those specified in
subdivision (b).
(e) A transaction subject to this title is also subject to other applicable substantive law.
(f) The exclusion of a transaction from the application of this title under subdivision (b) or (c) shall be construed only to exclude the transaction from the application of this title, but shall not be construed to prohibit the transaction from being conducted by electronic means if the transaction may be conducted by electronic means under any other applicable law.
(g) Notwithstanding subdivisions (b) and (c), this title shall apply to electronic records and electronic signatures relating to transactions conducted by a person licensed, certified, or registered pursuant to the Alarm Company Act (Chapter 11.6 (commencing with Section 7590) of Division 3 of the Business and Professions Code) for purposes of
activities authorized by Section 7599.54 of the Business and Professions Code.
(h) This section shall become operative on January 1, 2021.
SEC. 4.
Section 6006 is added to the Probate Code, to read:6006.
For purposes of this part, the following definitions shall apply:(a) “Electronic record” has the same meaning as in Section 1633.2 of the Civil Code.
(b) “Electronic signature” has the same meaning as in Section 1633.2 of the Civil Code.
(c) “Electronic will” means a will of a testator, including a California statutory will, that meets all the requirements set forth in Chapter 2.5 (commencing with Section 6115).
SEC. 5.
Section 6110 of the Probate Code is amended to read:6110.
(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this(b) The will shall be signed by one of the following:
(1) By the testator.
(2) In the
testator’s name by some other person in the testator’s presence and by the testator’s direction.
(3) By a conservator pursuant to a court order to make a will under Section 2580.
(c) (1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) 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 (B) understand that the instrument they sign is the testator’s will.
(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator
signed the will, the testator intended the will to constitute the testator’s will.
SEC. 6.
Section 6111 of the Probate Code is amended to read:6111.
(a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the(b) If a holographic will does not contain a statement as to the date of its execution and:
(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are
controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.
(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.
(c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.
SEC. 7.
Section 6113 of the Probate Code is amended to read:6113.
A written will or an electronic will is validly executed if its execution complies with any of the following:(a) The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act). Act), or the electronic will requirements set forth in Chapter 2.5 (commencing with Section 6115).
(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.
executed, except electronic wills may be executed pursuant to Chapter 2.5 (commencing with Section 6115), regardless of where the electronic will is executed.
(c) The execution of the will complies with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national. national, except electronic wills may be executed pursuant to Chapter 2.5 (commencing with Section 6115), regardless of where the electronic will is executed or the law of the place at the time of death of the testator.
SEC. 8.
Section 6114 is added to the Probate Code, to read:6114.
Subject to any other law or rule of procedure, a video recording or other electronic record may be admissible as evidence of any of the following:(a) The proper execution of a will.
(b) The intentions of a testator.
(c) The mental state or capacity of a testator.
(d) The authenticity of a will.
(e) Matters that are determined by a court to be relevant to the probate of a will.
SEC. 9.
Chapter 2.5 (commencing with Section 6115) is added to Part 1 of Division 6 of the Probate Code, to read:CHAPTER 2.5. Electronic Wills
6115.
For purposes of this chapter, the following definitions shall apply:(a) “Audio and video conference” means communication by which a person is able to see, hear, and communicate with another person in real time using electronic means.
(b) “Authentication method” means either of the following:
(1) A copy of the testator’s government-issued photo identification card and one of the following:
(A) A knowledge-based authentication method.
(B) A digital certificate using a public key infrastructure.
(C) A physical device, including a smart card, a USB device, or another token.
(D) Biometric identification, including fingerprint identification, a retinal scan, voice or facial recognition, or a video recording of the testator.
(E) Another commercially reasonable method.
(2) Electronic notarization, in accordance with any other applicable law.
(c) “Authoritative copy” means the original, unique, identifiable, and unalterable electronic document of an electronic will.
(d) “Certified paper original” means a tangible document that contains the text of an electronic will, as set forth in Section 6118.5.
(e) “Electronic document” means all electronic files relating to the electronic will, including the electronic will itself, codicils, and any other documents required for the certification of the will and its execution.
(f) “Executed” includes the use of an electronic signature.
(g) “Presence” includes persons being present by means of two-way audio and video conference.
(h) “Signature” and “signed” includes the use of an electronic signature.
(i) “Witness” includes a person who is present by means of audio and video conference.
6115.5.
A testator may execute a valid and enforceable electronic will under this chapter, if the will meets all of the following requirements:(a) Is created and maintained as an electronic record.
(b) Contains the electronic signature of the testator.
(c) Contains the date and time of the electronic signature.
(d) Includes an authentication method that is attached to or logically associated with the electronic will to identify the testator.
(e) Is created and maintained in a manner that any alteration of the
electronic will is detectable.
(f) Is otherwise subject to the Uniform Electronic Transactions Act (Title 2.5 (commencing with Section 1633.1) of Part 2 of Division 3 of the Civil Code).
6116.
(a) A testator may authorize a qualified custodian who meets all of the following criteria to retain custody of the electronic document:(1) The qualified custodian is not an heir of the testator or a beneficiary or devisee under the electronic will.
(2) The qualified custodian executes a written statement affirmatively agreeing to serve in this capacity.
(3) The qualified custodian consistently employs and stores electronic documents and electronic wills in a system that protects those documents from destruction, alteration, or unauthorized access and detects any change to a stored electronic document.
(4) The qualified custodian stores in the electronic document both of the following:
(A) A photograph or other visual record of the testator and the attesting witnesses that was taken contemporaneously with the execution of the electronic will.
(B) Documentation that was taken contemporaneously with the execution of the electronic will and provides satisfactory evidence of the identities of the testator and the attesting witnesses, including, but not limited to, the documentation and authentication method.
(5) The qualified custodian stores in the electronic document an audio and video recording of the testator and attesting witnesses taken at the time the testator and each attesting witness places his or her electronic signature on the electronic will, if
audio and video communication is used for authentication.
(6) The qualified custodian provides a court that is hearing a matter involving an electronic will that he or she is currently storing or has previously stored any information requested by the court pertaining to the qualifications of the qualified custodian and the policies and practices of the qualified custodian concerning the maintenance, storage, and production of electronic wills.
(b) The electronic document entrusted to the qualified custodian is presumed to be the authoritative copy of the electronic will.
6117.
(a) A qualified custodian shall provide access to or information concerning an electronic will or a certified paper original only to the following entities:(1) The testator or another person at the written instruction of the testator.
(2) After the death of the testator, the nominated personal representative of the testator or any interested person.
(b) The qualified custodian, in his or her discretion, may destroy the electronic document after any of the following:
(1) Five or more years after the admission of an electronic will to probate.
(2) Five or more years after the revocation of an electronic will.
(3) Five or more years after the termination of service as qualified custodian for the electronic document.
(4) Ten or more years after the death of the testator.
(5) One hundred fifty years after the execution of the electronic will.
(c) The qualified custodian shall cancel, render unreadable, or obliterate the electronic document upon the written instruction of the testator when executed with the same formalities as the will.
6118.
(a) A qualified custodian may cease serving in that capacity as provided in this section.(b) A qualified custodian shall do all of the following when withdrawing from service:
(1) Provide the succeeding qualified custodian the electronic document.
(2) Provide the succeeding qualified custodian with an affidavit that states all of the following:
(A) That the qualified custodian that is withdrawing meets the requirements in Section 6116 and is the qualified custodian designated by the testator in the electronic will or was designated to act in that
capacity by another qualified custodian pursuant to this section.
(B) That the electronic document was created at the time the testator executed the electronic will.
(C) That the electronic document has been in the custody of one or more qualified custodians since the execution of the electronic will and has not been altered since the time it was created.
(D) The identity of all qualified custodians who have had custody of the electronic document since the execution of the electronic will.
(c) The testator may designate in writing, with the same formalities required for the execution of an electronic will, a successor qualified custodian. When this occurs, the current qualified custodian shall provide the electronic document and the affidavit required
pursuant to subdivision (b) to the successor custodian.
(d) If the qualified custodian chooses to withdraw his or her services and a new qualified custodian has been designated, the current qualified custodian shall provide the testator and the succeeding qualified custodian with 30 days’ written notice that he or she will cease to serve in that capacity and shall provide the materials required by subdivision (b) to the successor qualified custodian.
(e) If the qualified custodian chooses to withdraw his or her services and a new qualified custodian has not been designated, both of the following shall be provided to the testator:
(1) Thirty days’ written notice that the qualified custodian will cease serving in that capacity.
(2) The certified paper
original of, and all records pertaining to, the electronic will.
(f) (1) When making the affidavit required pursuant to subdivision (b), the qualified custodian may rely conclusively on affidavits provided by a predecessor qualified custodian.
(2) If the qualified custodian is an entity, the affidavit of a duly authorized officer or agent of the entity will act as the affidavit of the qualified custodian.
6118.5.
(a) An electronic will may be converted to a certified paper original by converting the electronic will into a tangible document that contains both of the following:(1) The text of the electronic will.
(2) An affidavit required pursuant to either subdivision (b) or (c).
(b) A qualified custodian converting an electronic document to a certified paper original shall state all of the following in an affidavit:
(1) The qualified custodian meets the requirements of Section 6116.
(2) The
qualified custodian was designated by the testator to act in this capacity.
(3) The electronic document was created at the time the testator executed the electronic will.
(4) The electronic document has been in the possession of a qualified custodian since the execution of the electronic will and has not been altered since the time it was created.
(5) The identity of all qualified custodians who have had possession of the electronic document since its creation.
(6) The certified paper original is a true, correct, and complete tangible manifestation of the original electronic will.
(7) The records described in Section 6116 are in the custody of the qualified custodian.
(c) To create a certified paper original when the electronic document was discovered not in the custody of a qualified custodian, the person who discovered the electronic document and the person who reduced the document to paper shall each state in an affidavit the following information:
(1) When the electronic will was created, if not indicated in the electronic document.
(2) When, how, and by whom the electronic will was discovered.
(3) The identities of every person who had access to the electronic document.
(4) The method by which the electronic document was stored and the safeguards that were in place to prevent alteration to the electronic document.
(5) Whether the electronic document has been altered since its execution, to the best of the attestant’s knowledge.
(6) The certified paper original is a true, correct, and complete tangible manifestation of the electronic will.
(d) (1) A certified paper original of an electronic will may be offered for and admitted into probate in the same manner as if it were an original will executed in accordance with this part. A certified paper original of an electronic will is presumed to be valid and, absent any objection, shall be admitted to probate expeditiously without requiring further proof of validity.
(2) Pursuant to paragraph (1), a party producing a certified paper original shall produce the tangible document and a self-proving
affidavit concerning that will, if applicable, and shall affirm, in a written statement under oath, that it is a true copy of the electronic will and affidavit, if applicable, and to the best knowledge and belief of the certifying party has not been altered since it was executed.
6119.
(a) For purposes of executing or filing a document with the court in a proceeding relating to an electronic will, all of the following shall apply:(1) A document may be signed with an electronic signature.
(2) A person is deemed to be in the presence of or appearing before another person if the person is in the same physical location or in a different physical location, but in communication by means of audio and video conference.
(3) An electronic document executed in conformance with this chapter shall satisfy a provision of law that requires a written record.
(b) If a testator or a witness signing an affidavit or declaration appears by means of audio and video conference, the form shall be modified to indicate that fact.
6119.5.
An electronic will may only be revoked by one of the following means:(a) A subsequent will that revokes the prior will or part either expressly or by inconsistency.
(b) Cancelling, rendering unreadable, or obliterating the will with the intent of revoking it by either the testator or a person in the presence of and at the direction of the testator or the qualified custodian at the direction of a testator, pursuant to subdivision (c) of Section 6117.
SEC. 10.
Section 6130 of the Probate Code is amended to read:6130.
A writing or an electronic record in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.SEC. 11.
Section 6132 of the Probate Code is amended to read:6132.
(a) Notwithstanding any other provision, a will may refer to a writing or an electronic record that directs disposition of tangible personal property not otherwise specifically disposed of by the will, except for money that is common coin or currency and property used primarily in a trade or business. A writing or an electronic record directing disposition of a testator’s tangible personal property is effective if all of the following conditions are satisfied:(1) An unrevoked will refers to the writing.
writing or electronic record.
(2) The writing or electronic record is dated and is either in the handwriting of, or signed by, the testator.
(3) The writing or electronic record describes the items and the recipients of the property with reasonable certainty.
(b) The failure of a writing or an electronic record to conform to the conditions described in paragraph (2) of subdivision (a) does not preclude the introduction of evidence of the existence of the
testator’s intent regarding the disposition of tangible personal property as authorized by this section.
(c) The writing may be written or electronic
or signed before or after the execution of the will and need not have significance apart from its effect upon the dispositions of property made by the will. A writing or electronic record that meets the requirements of this section shall 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 or electronic record dies before the testator, the property shall pass as further directed in the writing or electronic record and, in the absence of any further directions, the disposition shall lapse.
(d) The testator may make
subsequent handwritten
handwritten, electronic, or signed changes to any writing. writing or electronic record. If there is an inconsistent disposition of tangible personal property as between writings, writings or electronic records, the most recent writing or electronic record controls.
(e) (1) If the writing or electronic record
directing disposition of tangible personal property omits a statement as to the date of its execution, and if the omission results in doubt whether its provisions or the provisions of another writing or electronic record inconsistent with it are controlling, then the writing or electronic record omitting the statement is invalid to the extent of its inconsistency unless the time of its execution is established to be after the date of execution of the other writing. writing or electronic record.
(2) If the writing
or electronic record
directing disposition of tangible personal property omits a statement as to the date of its execution, and it is established that the testator lacked testamentary capacity at any time during which the writing or electronic record may have been executed, the writing or electronic record is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.
(f) (1) Concurrent with the filing of the inventory and appraisal required by Section 8800, the personal representative shall also file the writing or electronic record that directs disposition
of the testator’s tangible personal property.
(2) Notwithstanding paragraph (1), if the writing or electronic record has not been found or is not available at the time of the filing of the inventory and appraisal, the personal representative shall file the writing or electronic record no later than 60 days prior to filing the petition for final distribution pursuant to Section 11640.
(g) The total value of tangible personal property identified and disposed of in the writing or electronic record shall not exceed twenty-five thousand dollars ($25,000). If the value
of an item of tangible personal property described in the writing
or electronic record exceeds five thousand dollars ($5,000), that item shall not be subject to this section and that item shall be disposed of pursuant to the remainder clause of the will. The value of an item of tangible personal property that is disposed of pursuant to the remainder clause of the will shall not be counted towards the twenty-five thousand dollar ($25,000) limit described in this subdivision.
(h) As used in this section, the following definitions shall apply:
(1) “Tangible personal property” means 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 “tangible personal property” does not mean real property, a
mobilehome as defined in Section 798.3 of the Civil Code, intangible property, such as evidences of indebtedness, bank accounts and other monetary deposits, documents of title, or securities.
(2) “Common coin or currency” means the coins and currency of the United States that are legal tender for the payment of public and private debts, but does not include coins or currency kept or acquired for their historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment.
SEC. 12.
Section 6221 of the Probate Code is amended to read:6221.
A California statutory will other than an electronic will shall be executed only as follows:(a) The testator shall complete the appropriate blanks and shall sign the will.
(b) Each witness shall observe the testator’s signing and each witness shall sign his or her name in the presence of the testator.
SEC. 13.
Section 6240 of the Probate Code is amended to read:6240.
The following is the California Statutory Will form:QUESTIONS AND ANSWERS ABOUT THIS CALIFORNIA STATUTORY WILL
The following information, in question and answer form, is not a part of the California Statutory Will. It is designed to help you understand about Wills and to decide if this Will meets your needs. This Will is in a simple form. The complete text of each paragraph of this Will is printed at the end of the Will.
1. What happens if I die without a Will? If you die without a Will, what you own (your “assets”) in your name
alone will be divided among your spouse, domestic partner, children, or other relatives according to state law. The court will appoint a relative to collect and distribute your assets.
2. What can a Will do for me? In a Will you may designate who will receive your assets at your death. You may designate someone (called an “executor”) to appear before the court, collect your assets, pay your debts and taxes, and distribute your assets as you specify. You may nominate someone (called a “guardian”) to raise your children who are under age 18. You may designate someone (called a “custodian”) to manage assets for your children until they reach any age from 18 to 25.
3. Does a Will avoid probate? No. With or without a Will, assets in your name alone usually go through the court probate process. The court’s first job is to
determine if your Will is valid.
4. What is community property? Can I give away my share in my Will? If you are married or in a domestic partnership and you or your spouse earned money during your marriage or domestic partnership from work and wages, that money (and the assets bought with it) is community property. Your Will can only give away your one-half of community property. Your Will cannot give away your spouse’s one-half of community property.
5. Does my Will give away all of my assets? Do all assets go through probate? No. Money in a joint tenancy bank account automatically belongs to the other named owner without probate. If your spouse, domestic partner, or child is on the deed to your house as a joint tenant, the house automatically passes to him or her. Life insurance and retirement plan benefits may pass
directly to the named beneficiary. A Will does not necessarily control how these types of “nonprobate” assets pass at your death.
6. Are there different kinds of Wills? Yes. There are handwritten Wills, typewritten Wills, electronic Wills,
attorney-prepared Wills, and statutory Wills. All are valid if done precisely as the law requires. You should see a lawyer if you do not want to use this Statutory Will or if you do not understand this form.
7. Who may use this Will? This Will is based on California law. It is designed only for California residents. You may use this form if you are single, married, a member of a domestic partnership, or divorced. You must be age 18 or older and of sound mind.
8. Are there any reasons why I should NOT use this Statutory Will? Yes. This is a simple Will. It is not designed to reduce death taxes or other taxes. Talk to a lawyer to do tax planning, especially if (i) your assets will be worth more than $600,000 or the current amount excluded from estate tax under federal law at your death, (ii) you own
business-related assets, (iii) you want to create a trust fund for your children’s education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse, domestic partner, or descendants, or (vi) you have valuable interests in pension or profit-sharing plans. You should talk to a lawyer who knows about estate planning if this Will does not meet your needs. This Will treats most adopted children like natural children. You should talk to a lawyer if you have stepchildren or foster children whom you have not adopted.
9. May I add or cross out any words on this Will? No. If you do, the Will may be invalid or the court may ignore the crossed out or added words. You may only fill in the blanks. You may amend this Will by a separate document (called a codicil). Talk to a lawyer if you want to do something with your assets which is not allowed in this form.
10. May I change my Will? Yes. A Will is not effective until you die. You may make and sign a new Will. You may change your Will at any time, but only by an amendment (called a codicil). You can give away or sell your assets before your death. Your Will only acts on what you own at death.
11. Where should I keep my Will? After you and the witnesses sign the Will, keep your Will in your safe deposit box or other safe place. You should tell trusted family members where your Will is kept.
12. When should I change my Will? You should make and sign a new Will if you marry, divorce, or terminate your domestic partnership after you sign this Will. Divorce, annulment, or termination of a domestic partnership automatically cancels all
property stated to pass to a former spouse or domestic partner under this Will, and revokes the designation of a former spouse or domestic partner as executor, custodian, or guardian. You should sign a new Will when you have more children, or if your spouse or a child dies, or a domestic partner dies or marries. You may want to change your Will if there is a large change in the value of your assets. You may also want to change your Will if you enter a domestic partnership or your domestic partnership has been terminated after you sign this Will.
13. What can I do if I do not understand something in this Will? If there is anything in this Will you do not understand, ask a lawyer to explain it to you.
14. What is an executor? An “executor” is the person you name to collect your assets, pay your debts and taxes, and
distribute your assets as the court directs. It may be a person or it may be a qualified bank or trust company.
15. Should I require a bond? You may require that an executor post a “bond.” A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate’s assets.
16. What is a guardian? Do I need to designate one? If you have children under age 18, you should designate a guardian of their “persons” to raise them.
17. What is a custodian? Do I need to designate one? A “custodian” is a person you may designate to manage assets for someone (including a child) who is under the age of 25 and who receives assets under your Will. The custodian manages the
assets and pays as much as the custodian determines is proper for health, support, maintenance, and education. The custodian delivers what is left to the person when the person reaches the age you choose (from 18 to 25). No bond is required of a custodian.
18. Should I ask people if they are willing to serve before I designate them as executor, guardian, or custodian? Probably yes. Some people and banks and trust companies may not consent to serve or may not be qualified to act.
19. What happens if I make a gift in this Will to someone and that person dies before I do? A person must survive you by 120 hours to take a gift under this Will. If that person does not, then the gift fails and goes with the rest of your assets. If the person who does not survive you is a relative of yours or your spouse, then certain assets may
go to the relative’s descendants.
20. What is a trust? There are many kinds of trusts, including trusts created by Wills (called “testamentary trusts”) and trusts created during your lifetime (called “revocable living trusts”). Both kinds of trusts are long-term arrangements in which a manager (called a “trustee”) invests and manages assets for someone (called a “beneficiary”) on the terms you specify. Trusts are too complicated to be used in this Statutory Will. You should see a lawyer if you want to create a trust.
21. What is a domestic partner? You have a domestic partner if you have met certain legal requirements and filed a form entitled “Declaration of Domestic Partnership” with the Secretary of State. Notwithstanding Section 299.6 of the Family Code, if you have not filed a Declaration of Domestic Partnership with
the Secretary of State, you do not meet the required definition and should not use the section of the Statutory Will form that refers to domestic partners even if you have registered your domestic partnership with another governmental entity. If you are unsure if you have a domestic partner or if your domestic partnership meets the required definition, please contact the Secretary of State’s office.
INSTRUCTIONS
1. READ THE WILL. Read the whole Will first. If you do not understand something, ask a lawyer to explain it to you.
2. FILL IN THE BLANKS. Fill in the blanks. Follow the instructions in the form carefully. Do not add any words to the Will (except for filling in blanks) or
cross out any words.
3. DATE AND SIGN THE WILL AND HAVE TWO WITNESSES SIGN IT. Date and sign the Will and have two witnesses sign it. You and the witnesses should read and follow the Notice to Witnesses found at the end of this Will.
*You do not need to have this document notarized. Notarization will not fulfill the witness requirement.
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTEDSEC. 14.
Section 6320 of the Probate Code is amended to read:6320.
As used in this chapter, unless the context otherwise requires:(a) “Designation” means a designation made pursuant to Section 6321.
(b) “Instrument” includes all of the following:
(1) An insurance, annuity, or endowment contract (including any agreement issued or entered into by the insurer in connection therewith, supplemental thereto, or in settlement thereof).
(2) A pension, retirement benefit, death benefit, stock bonus, profit-sharing or employees’ saving plan, employee benefit plan, or contract created or entered into by an employer for the
benefit of some or all of his or her employees.
(3) A self-employed retirement plan, or an individual retirement annuity or account, established or held pursuant to the Internal Revenue Code.
(4) A multiple-party account, as defined in Section 5132.
(5) Any other written or electronic instrument of a type described in Section 5000.
SEC. 15.
Section 6382 of the Probate Code is amended to read:6382.
(a) The will shall be made in(b) The testator shall declare in the presence of two witnesses and of a person authorized to act in
connection with international wills that the document is the testator’s will and that the testator knows the contents thereof. The testator need not inform the witnesses, or the authorized person, of the contents of the will.
(c) In the presence of the witnesses, and of the authorized person, the testator shall sign the will or, if the testator has previously signed it, shall acknowledge his or her signature.
(d) If the testator is unable to sign, the absence of the testator’s signature does not affect the validity of the international will if the testator indicates the reason for his or her inability to sign and the authorized person makes note thereof on the will. In that case, it is permissible for any other person present, including the authorized person or one of the witnesses, at the direction of the testator, to sign the testator’s name for the testator if the authorized
person makes note of this also on the will, but it is not required that any person sign the testator’s name for the testator.
(e) The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator.
SEC. 16.
Section 6383 of the Probate Code is amended to read:6383.
(a) The signatures shall be placed at the end of the will. If the will consists of several(b) The date of the will shall be the date of its
signature by the authorized person. That date shall be noted at the end of the will by the authorized person.
(c) The authorized person shall ask the testator whether the testator wishes to make a declaration concerning the safekeeping of the will. If so and at the express request of the testator, the place where the testator intends to have the will kept shall be mentioned in the certificate provided for in Section 6384.
(d) A will executed in compliance with Section 6382 is not invalid merely because it does not comply with this section.
SEC. 17.
Section 6384 of the Probate Code is amended to read:6384.
The authorized person shall attach to the will a certificate to be signed by the authorized person establishing that the requirements of this chapter for valid execution of an international will have been fulfilled. The authorized person shall keep a copy of the certificate and deliver another to the testator. The certificate shall be substantially in the following form:CERTIFICATE (Convention of October 26, 1973) | ||||
1.I,
_____
(name, address, and capacity)
_____
, a person authorized to act in connection with international wills, | ||||
2.certify that on
_____
(date)
_____
at
_____
(place)
_____
| ||||
3.
_____
(testator) (name, address, date and place of birth)
_____
in my presence and that of the witnesses | ||||
4.(a)
_____
(name, address, date and place of birth)
_____
(b)
_____
(name, address, date and place of birth)
_____
has declared that the attached document is his will and that he knows the contents thereof. | ||||
5.I furthermore certify that: | ||||
6.(a)in my presence and in that of the witnesses | ||||
(1)the testator has signed the will or has acknowledged his signature previously | ||||
(2)following a declaration of the testator stating that he was unable to sign his will for the following reason ________________, I have mentioned this declaration on the will,* and the signature has been
_____
(name and address)*
_____
| ||||
7.(b)the witnesses and I have signed the will; | ||||
8.(c)each page or
electronic record of the will has been signed by _________________ and numbered;* | ||||
9.(d)I have satisfied myself as to the identity of the testator and of the witnesses as designated above; | ||||
10.(e)the witnesses met the conditions requisite to act as such according to the law under which I am acting; | ||||
11. (f) the testator has requested me to include the following statement concerning the safekeeping of his will:* | ||||
12. | PLACE OF EXECUTION | |||
13. | DATE | |||
14. | SIGNATURE and, if necessary, SEAL | |||
__________ *to be completed if appropriate | ||||
SEC. 18.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.Only the following entities or organizations may acquire and hold conservation easements:
(a) A tax-exempt nonprofit organization qualified under Section 501(c)(3) of the Internal Revenue Code and qualified to do business in this state which has as its primary purpose the preservation, protection, or enhancement of land in its natural, scenic, historical, agricultural, forested, or open-space condition or use.
(b)The state or any city, county, city and county, district, or other state or local governmental entity, if otherwise authorized to acquire and hold title to real property and if the conservation easement
is voluntarily conveyed. A local governmental entity shall not condition the issuance of an entitlement for use on the applicant’s granting of a conservation easement pursuant to this chapter.
(c)A federally recognized California Native American tribe or a nonfederally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission to protect a California Native American prehistoric, archaeological, cultural, spiritual, or ceremonial place, if the conservation easement is voluntarily conveyed.
