Pecuniary Devise Clause
(Limited to Percentage of Estate) (CA)

Summary

This template is a will provision clause that may be used to limit a nonresiduary gift to a specified percentage of the estate. It is for use in California. The template includes practical guidance, drafting notes, and alternate clauses. The first alternate clause may be used to make a gift of a specified sum, to be reduced if the total estate is less than a specified value. The second alternate clause may be used to make a gift of a specified sum, or a percentage of the estate, whichever is less. The third alternate clause may be used to make a gift of a specified sum not to exceed a specified percentage of the estate. The fourth alternate clause may be used to make a gift of a specified sum, to be increased if the total estate is more than a specified value. When the overall plan of the will is to make certain gifts and then to leave the residue of the estate to the testator's spouse and/or children, the testator should consider the possibility that the estate may be substantially reduced before the testator's death. In such a case, specific, general, or demonstrative legacies set forth in the will may no longer accord with the general testamentary plan. When the estate is distributed, such legacies may be paid in full while the residue is drastically reduced. The template set forth below may be used to protect residuary beneficiaries against this contingency. Any other designation of the amount to which the percentage will be applied may be used in place of this formula. The testator may, for example, state that if the "net estate" is less than a fixed amount the bequests will be reduced proportionately. Finally, the drafter must be mindful that the language ''property disposed of by this will'' specifically excludes: (1) property held with right of survivorship; and (2) assets that are set up with a beneficiary designation. For a full listing of key clauses for use when drafting last wills and testaments, see Will Clauses Resource Kit. For related information regarding abatement of nonresiduary gifts or devises, see Abatement Clause (Nonresiduary Devises Limited to Percentage of Estate) (CA) and Abatement Directive Clause (Nonresiduary Devises) (CA).