Probate & Administration

Question 1

Overview of Probate and Administration

Answer 1

• Restrictions on testamentary disposition
• Types of devises
• Who can take?
• What can they take?

Question 2

Restrictions on Testamentary Disposition

Answer 2

(1) SP = no restrictions
(2) CP = limited to 1/2 share

(3) QCP
• acquiring spouse limited to 1/2 share
• non-acquiring spouse = no testamentary power to dispose during acquirer’s lifetime

(4) Widow’s election = when the testator attempts to dispose of more than his/her 1/2 share of the CP/QCP, the widow may invoke the widow’s election
- take under the will; or
- take against the will

(5) Felonious and intentional homicide
Evidence
• convicted = conclusive
• not convicted = preponderance of the evidence

Question 3

What is the widow’s election?

Answer 3

Widow’s election = when the testator attempts to dispose of more than his/her 1/2 share of the CP/QCP, the widow may invoke the widow’s election

• take under the will; or
• take against the will

Question 4

Felonious & Intentional Homicide

Answer 4

Evidence of homicide
• convicted = conclusive
• not convicted = preponderance of the evidence

Question 5

Types of Devises

Answer 5

(1) Specific devise = devise of a specifically described item of real/personal property
(2) General devise = gift payable from the general assets of the estate
(3) Demonstrative devise = general devise payable from a specific source. gift from a particular source that the executor may satisfy from the general assets of the estate if necessary
(4) Residuary devise = all property not expressly disposed of by the testamentary instrument

Question 6

What is a specific devise?

Answer 6

Devise of a specifically described item of real/personal property

Question 7

What is a general devise?

Answer 7

Gift payable from the general assets of the estate

Question 8

What is a demonstrative devise?

Answer 8

General devise payable from a specific source.

• Gift from a particular source that the executor may satisfy from the general assets of the estate if necessary

Question 9

What is a residuary devise?

Answer 9

All property not expressly disposed of by the testamentary instrument

Question 10

Posthumous Beneficiaries

Answer 10

Definition = beneficiaries conceived during the testator’s lifetime but born after the testator’s death

Posthumous Relatives/Children = posthumous relatives or children are considered to have been born during the lifetime of the testator and are deemed beneficiaries of the testator’s will

Question 11

Probate: Posthumously Conceived Children

Answer 11

Definition = the use of testator’s sperm to conceive a child after the death of the testator

Treated as born during testator’s lifetime

(1) authorized in writing
- signed and dated; and
- designates person in control
(2) written notice within 4 months; and
(3) conceived and in utero within 2 years

Burden of proof = clear and convincing evidence

Question 12

Lapse

Answer 12

Definition = if beneficiary dies after the testator executes his/her will but before the testator dies then the gift tot he predeceased beneficiary lapses (or fails)

Effect of lapse
• Alternative disposition in will controls
• No alternative disposition = residuary clause or intestate succession
* Class gifts = share of predeceased class member passes to class members alive at testator’s death

Question 13

Anti-Lapse Statute

Answer 13

Effect = if the anti-lapse statute of CA Probate Code is applicable, then the gift will not lapse and the lineal descendants of the beneficiary take the gift

Reqs:

(1) Predeceased beneficiary is kindred (blood relative)
- of testator; or
- of testator’s surviving, deceased, or former spouse (domestic partner)
(2) predeceased beneficiary leaves issue
(3) instrument does not express intent to the contrary

Class gifts - the anti-lapse statute is also applicable to class gifts with the issue of the predeceased class member taking his/her share of the class gift

Distribution

• equal degree = per capita
• unequal degree = per capita with representation

Question 14

Uniform Simultaneous Death Act

Answer 14

When applicable? - where testator and beneficiary die “simultaneously” and it cannot be determined by clear and convincing evidence who died first, the beneficiary is assumed to have predeceased the testator, and lapse rule or anti-lapse statute will apply

• spouse & domestic partners = CP & QCP split 50/50
• joint tenants = joint tenancy severed with 1/2 going to each joint tenant’s estate
• insured & beneficiary = beneficiary presumed to have predeceased insured

Question 15

Increase after Death

Answer 15

Specific devise = all income after death

General = interest on gift beginning one year after death

Residuary gifts = no interest

Question 16

Abatement

Answer 16

Definition = estate has sufficient assets to pay debts and devises

Omitted child/spouse order of abatement

• intestate property
• pro rata from all beneficiaries and revocable inter vivos trust; exception: specific devises - that if abated would be contrary to the obvious intention of the testator are exempt

General debts order of abatement
• residual devises
• general devises
- non-relatives
- relatives
• specific & demonstrative devises
- non-relatives
- relatives

Question 17

Exoneration

Answer 17

Definition = freeing specific devise from encumbrances

CL = YES, when a testator makes specific devise of property secured by a lien, it was presumed that the testator wanted the debt paid out of the residuary of the estate

CA Law = NO, when a testator makes a specific devise of property secured by a lien, the devisee takes the specific gift subject to the encumbrance unless the testator’s will expressly states his/her intention that the specific gift be exonerated