Devise of Residue
(Distribution to Alternate Beneficiaries) (Will Clause) (CA)

Summary

This template is a will provision that should be used to make an alternate distribution of the residue in case the residuary beneficiaries do not survive the testator or fail to take the residue for any other reason. It should immediately follow the residuary clause of the will. This template is used in California. It includes practical guidance, drafting notes, and optional clauses. A residuary devise is a devise of the property that remains in the estate after all of the specific and general gifts have been satisfied. See Prob. Code § 21117(f). The residuary clause functions as a catch-all provision, ensuring that the testator's will disposes of all property included in their probate estate. Thus, the residuary clause makes the testamentary disposition complete and prevents intestacy. This template allows the drafter to provide for alternate distribution to one or more named devisees; to a class, such as the issue of the testator or the primary residuary beneficiary; or to the testator's heirs. Whenever there are multiple beneficiaries, the will should specify how they share in the devise, and whether lapsed or unclaimed shares are redistributed equally or proportionately. If the testator prefers a class gift, it is prudent to adopt one of four established patterns of distribution consistent with the testator's wishes. See Prob. Code §§ 240–247. For a full listing of key clauses for use when drafting last wills and testaments, see Will Clauses Resource Kit. For additional information about devises, see Purposes and Uses of a Will (CA) and Tax Considerations in Estate Planning (CA). For other residuary clauses, see Devise of Residue Clause (CA) and Residuary Clause (Gifts by Categories of Property) (CA).