Why Does 6132 Exclude Real Property Devises

I wrote earlier about Probate Code Section 6132, which recently took effect. Section 6132 permits a will to refer to a writing, even a later writing, in the devise of personal property. The intent of this law is to make sure a testator's intent is followed when the will is written this way. So why just personal property, and not real property?



The transfer of real property, whether by devise, bequest, or other means, is subject to the statute of frauds and is also held to a higher level of scrutiny than other assets. For example, the document has to be in writing and has to be certain.



It can't be "I deed to Joe the back 40 acres, with the house and well on it." If it were that simple (or complicated, depending on how you look at it), there would be lots of 'splaining to do. So the California legislature, likewise, has not allowed a "later writing" exception to the drafting of wills to include real property. It would be much too confusing if the writing was not clear. For example, if the later writing turned out to be an option to purchase, which left many vague details as to payment terms, exercise of the option or whatever, there would be great uncertainty as to how the real estate was to be transferred, or even to whom. This example is just one of many that could complicate an estate administration. The legislature doesn't provide that a later writing is sufficient for the transfer of real estate, only for personal property.