Pg 3 Flashcards
What is the circumstance when there will be intestate succession?
If there is no will or if at least one item of probate property is not disposed of in the will.
What are the FOUR things that are always non-probate?
- joint tenancy
– life insurance
– pay on death
– trusts
If the facts on an essay do not say that there’s a will, what should you assume?
That there isn’t one
What is partial intestacy?
Dying with private property that the will doesn’t apply to. So you must do an intestate succession analysis for all property that is not covered by the will.
What are the two major situations where partial intestacy applies?
- when the will by its terms doesn’t apply to all of the decedent’s probate property
– when the will is found to be invalid or only partially valid
If a will leaves $100,000 to you, but then the decedent dies and has $1 million in his estate, what happens?
Intestate succession is used to determine what happens to everything except the $100,000
What are the circumstances that a will would be found invalid or partially invalid?
- if it didn’t have the needed formalities
- if it resulted from fraud or undue influence
- if the testator didn’t have mental capacity to execute it
What is the best way for the bar examiners to test both wills and intestate succession?
By using partial intestacy
If the will says, “Car goes to A, house goes to B, and $50,000 go to C.“ Then the testator dies with a car, a house, a necklace, $75,000, and a $100,000 insurance policy, what happens?
There is a valid will, so the house, car, and $50,000 can be distributed under it. The life insurance is non-probate. So the leftover $25,000 and necklace are distributed by intestate succession.
How do you determine the surviving spouse’s share when it comes to intestate succession?
Three parts:
– determine if there is a surviving spouse
– determine which property qualifies as community property, quasi-community property, or separate property
– calculate the surviving spouse’s share
What are the presumptions that are made with regard to intestacy and a surviving spouse?
The law presumes that the decedent would want his surviving spouse to get most or all of the estate, and if there are minor children, it presumes that the surviving spouse will use the money to provide for them
What are the things you need to consider when determining a surviving spouse’s share under intestate succession with regard to determining if there is a surviving spouse?
See if the person never married, if the spouse is already dead, if they are divorced, etc.
What is property that qualifies as community property?
Marital property, assets, and income that is acquired during the marriage.
What is the intestate share of a surviving spouse for community property?
1/2. During the marriage each spouse owns 1/2 of the community property, and at death, the surviving spouse gets the decedent’s 1/2 too, so now the surviving spouse owns all of the community property. If the decedent didn’t want that, he should have willed his half away. The surviving spouse then owns 100% of all community property at death.
What is considered to be “quasi-community property” for intestate succession?
Property or income that was gotten by a married person while he was living in a separate property state that would have been community property if it was acquired in California.