Power to Transfer Flashcards
Rights of Surviving Spouse
> Spousal support: includes social security and pension survivor benefits, a homestead( on petition), and exempt property, family allowance permitted during probate
> Forced 1/2 CP and QCP: and SS must elect to take this share in lieu of all other interests she may have under T’s will( no elective share in CA)
> Right to set aside transfers: SS can set aside a transfer of QCP made by the decedent during marriage without the written consent of SS for less than adequate consideration, if subject to right of survivorship, D kept possession or right to income or the decedent kept the right to revoke or dispose of the principal for his own benefit.
> Omitted Spouse or DP: Entitled to an intestate share unless: (1) the omission was intentional and intent was apparent in will, (2) the spouse or DP was given property outside of will in lieu of disposition in will, (3) the spouse or DP is a party to a valid contract waiving the right to share in the estate, or (4) the spouse was a care custodian who married a dependent adult testator while providing services or within 90 days after those services were provided, and D died less than six months after the marriage(unless there is clear and convincing evidence that the marriage was not a product or fraud or undue influence)
Gifts to Children
> Transfers to Minors: minors lack legal capacity so use guardianship, UTMA, or a trust
> CA: a gift is an advancement if the decedent declared or the heir acknowledged it so in a contemporaneous writing, or the decedent’s contemporaneous writing or the heir’s written acknowledgement otherwise indicates that the gift was an advancement in computing the distribution of the decedent’s intestate estate
Omitted Children: An omitted child receives a share equal to what other children would have received if the decedent had died intestate
- Exceptions: Omission was intentional, T had other children at the time will was created and left most of estate to the parent of these children, or T provided for the child outside of the will and intended this to be in lieu of a provision in the will
Bars to Succession
> Homicide: an intentional and felonious killer of the decedent is treated as predeceased any severs any joint tenancies ( CA DOES NOT apply Anti-lapse statute to protect killer’s issue
> Disclaimer: must identify the decedent, describe the interest being disclaimed, and state the extent of the disclaimer to be treated as predeceased for disclaimed bequest, CA requires disclaimers to be in writing, signed, and filed within nine months of the decedent’s death
> Elder abuse: an abuser is treated as predeceased in CA
Bars to Succession
> Homicide: an intentional and felonious killer of the decedent is treated as predeceased any severs any joint tenancies ( CA DOES NOT apply Anti-lapse statute to protect killer’s issue
> Disclaimer: must identify the decedent, describe the interest being disclaimed, and state the extent of the disclaimer to be treated as predeceased for disclaimed bequest, CA requires disclaimers to be in writing, signed, and filed within nine months of the decedent’s death
> Elder abuse: an abuser is treated as predeceased in CA
