Pg 1 Flashcards
What does ambulatory mean with regard to wills?
The will can be changed whenever the maker wants
What is an ancestor?
A parent, grandparent, or great grandparents
What is a descendent?
A child, grandchild, or great grandchild
What is ancillary probate?
A special probate proceeding that is opened for out-of-state real property
What is a bequest?
A gift of personal property
What is a devise?
A gift of land
What is clear and convincing evidence?
This is intermediate proof that is between a preponderance and a reasonable doubt. This evidence must be highly and substantially more probable to be true than not, and the trier of fact must have a firm belief or conviction and it’s factuality.
What is a codicil?
A document that is an amendment to a pre-existing valid will.
What do you have to watch out for with regard to codicils?
If the bar exam gives something that looks like a codicil, but there is no valid will under it [maybe that will was invalid], then the codicil doesn’t have enough information to be a will on its own, and without a valid will to attach the codicil to, there is nothing.
What are collateral kindred?
All people related by blood to the decedent that are not descendants or ancestors
What is common law marriage?
A period of cohabitation with the intent to be treated as a marriage. This is not recognized in many jurisdictions.
What is a devisee?
A named beneficiary in a will. The property is devised to them
What are heirs?
Relative that stands to gain from a decedent’s intestate estate. The property descends to them.
Is it possible for a living person to have heirs?
No, because while he is living, they are called his heirs apparent and they only have an expectancy that is contingent on them surviving the decedent. You can only have heirs if you are dead.
Is the expectancy of an inheritance considered to be a legal interest?
No
What does escheat mean?
Property reverts back to the state because there are no surviving relations and no disposition of property by the decedent
What are the elements of a gift?
- donative intent
- delivery (either physical or constructive)
– acceptance or receipt
What is an international will?
This is subject to special requirements that allow it to be probated in any country that signed the 1973 treaty
What does intestate mean?
Dying without a will
What does testate mean?
Dying with a will
What is issue?
Direct lineal descendants [kids, grandkids, great grandkids, etc.]
What are laughing heirs?
Remote relatives that inherit intestate property because there are no closer ones. These people hardly knew the decedent
What is a living will?
An instrument that says that someone that is terminally ill does not want their life prolonged via life-support, respiration, food, hydration, etc.
What is preemption with regard to ERISA?
ERISA is a federal statute that applies to employment, pensions, and benefit plans. Preemption applies when there is a conflict between state law and ERISA. If ERISA is applicable, it controls, regardless of state law
What is a putative spouse?
When a couple is not legally married, but someone is treated as a spouse because he had a good faith belief that there was a valid marriage
What is a residuary clause?
A catchall provision in a while that applies to any property that is not otherwise covered. I.e.: $100,000 to Ned, and the residue to Bill
What is a spouse?
The person you are legally married to at the time of death
Who is considered to be the spouse when bigamy was involved?
The senior legal spouse is the senior married person, so all marriages after that do not count
What is a springing power of attorney?
This only takes effect when the person making it becomes incompetent.
What is a will?
A document that is created to specify what people want to happen to their property when they die
What governs wills and estates in California?
The CPC - California Probate Code
How do you start an essay in wills and estates?
By talking about the governing law
What is the breakdown for an bar exam estates essays that deal with California law and the ones that deal with modern majority common law?
2/3 are California and 1/3 is modern majority
What is the average time frame to close an estate between testate estates and intestate ones?
- testate: 16 months
– intestate: 18 months
What is the percentage of an estate that is usually taken by attorney fees and representative commissions?
2 to 3%
What are the three levels of controlling authority with regard to estates?
- Community property, trusts, joint property, life estates, future interests, and disposal shares (these control over the law of wills and intestacy)
- Wills: take precedence over state law and intestacy, but are subject to everything in that first group
- Intestacy: subject everything above.
What is the best strategy on an essay when there are multiple testamentary instruments?
Take each in order from the oldest will or writing to the newest one [chronologically].
– ask if will #1 was valid
– ask if #2 was valid, etc
What is the general structure for an essay on a wills and estates question?
- jurisdiction and applicable law: discuss if it is California law or otherwise
– intestate problem or will: is there anything that was not addressed in the will?
– probate/non-probate property
– will: execution, validity, capacity, holographic, harmless error, revocation, property changes, etc.
What is your opening statement on an essay for wills?
“In order to determine A’s rights, it must first be established whether the trust or will was valid. If not, then O failed to make disposition of his property and died intestate, with ________ and _______ as his only heirs. They would be entitled to__________.
• if analyzed as a will, it fails because _______
• if analyzed as a trust ________
