REVIEW Flashcards
What is the rule for intestacy and killers?
Intestacy with killer (killer’s issue can take under intestacy but if gift is to killer,
then killer’s issue cannot take under will or trust)
Contracts (joint tenancy deeds, POD/TOD accounts, contracts such as insurance policies or retirement plans that have beneficiary designation forms as part of the contract)
a. distribute according to contract terms
b. beneficiary must survive to take
c. anti-lapse does not apply unless contract provides for it
d. cannot transfer by will or trust unless contract terms fail (because there are
no existing beneficiaries and/or because anti-lapse does not apply)
e. killer doesn’t take under a contract/deed and is treated as predeceasing the decedent (anti-lapse, if it applies, not affected by killing—meaning that the killer’s issue can take under a contract under the anti-lapse rule because the contract says to apply the anti-lapse rule)
Pourover wills
A pourover will transfers property held in the decedent’s individual name to the trustee of that same decedent’s revocable living trust.
A pourover will is the final, last-chance way for an individual to ensure that property held in individual name is transferred, at that individual’s death, to the individual’s revocable living trust.
Intestacy?
default rules in California Probate Code governing the distribution of property held in decedent’s individual name when there is no document governing the distribution of such property
Intestacy doesn’t apply to:
a. joint tenancy property
b. trust property
c. property governed by contracts
d. property effectively governed by a will
Intestacy applies:
a. when the decedent never created any governing will or trust
b. when the decedent tried but failed to create a governing will or trust, and there is no other governing document (this includes a valid trust instrument with no property in trust name/property never transferred to trust name or to a trustee)
c. when the governing document does not cover certain property [i.e., asset-by-asset]
d. when the joint tenancy deed/trust/other contract fails and there is no will or trust to govern the distribution of the property
[side note: of course, conversely, when the joint tenancy deed/trust/other contract fails and there is a will or trust to govern the distribution of the property, then the will or trust governs, not intestacy]
If intestacy applies:
a. Determine whether the decedent is single/unmarried or married
b. If the decedent is single/unmarried, apply 6402 to distribute all property:
i. To decedent’s issue, applying section 240, or, if there are no issue, or
ii. To decedent’s parent or parents equally, or, if there are no surviving parent(s), or
iii. To the issue of the decedent’s parent or parents, applying section 240, or, if there are no surviving issue of a parent,or
iv. To decedent’s grandparent or grandparents equally, or, if there are no surviving grandparent(s), or
v. To the issue of decedent’s grandparents, applying section 240,
etc.
If the decedent is married:
Give surviving spouse:
(1) The decedent’s one-half CP interest in total CP
(2) Either all/one-half/one-third of the decedent’s SP:
(i) All of the decedent’s SP if the decedent left no surviving issue, parent, brother, sister, or issue of a deceased brother or sister
(ii) One-half of the decedent’s SP if the decedent left:
1) Only one child or the issue of one deceased child, or
2) No issue but left a parent or parents or their issue (decedent’s siblings and those siblings’ issue) or the issue of either of them (decedent’s half-siblings and those half-siblings’ issue)
(iii) One-third of the decedent’s SP if the decedent left:
1) More than one child, or
2) One child and the issue of one or more deceased children
3) Issue of two or more deceased children
H #1 and W have a child and live as a family for ten years.
When the child is 10 years old, H #1 and W divorce. Two years later, W marries H #2. Three years after the marriage, H #2 adopts the child (H #1 must and did consent to this).
Q: If W dies intestate, can the child take an intestate share from W?
YES
H #1 and W have a child and live as a family for ten years.
When the child is 10 years old, H #1 and W divorce. Two years later, W marries H #2. Three years after the marriage, H #2 adopts the child (H #1 must and did consent to this).
Q: If H #1 dies intestate, can the child take an intestate share from H #1
YES
H #1 and W have a child and live as a family for ten years.
When the child is 10 years old, H #1 and W divorce. Two years later, W marries H #2. Three years after the marriage, H #2 adopts the child (H #1 must and did consent to this).
Q: If the child dies intestate, is W an intestate taker of the child?
YES
H #1 and W have a child and live as a family for ten years.
When the child is 10 years old, H #1 and W divorce. Two years later, W marries H #2. Three years after the marriage, H #2 adopts the child (H #1 must and did consent to this).
Q: If the child dies intestate, is H #1 an intestate taker of the child?
NO, H1 is not longer the legal father. The legal father is H2.
Dad’s killed by Son Dad dies intestate and is survived by Son, Grandson, and Granddaughter (Grandson + Granddaughter = children of Son)
Q: Who take under intestacy here?
Grandson and Granddaughter
Dad’s killed by Son. Dad dies with a will giving all property in equal shares to Son and Daughter. Dad is survived by Son, Grandson (son of Son), and Daughter
Q: Who takes under the will?
Only Daughter
X and Y are joint tenants and die simultaneously. Treat X and Y as owning a ½ TIC interest (remember, no survivors)
X’s will and Y’s will governs their respective ½ TIC interest –>
If either X or Y doesn’t have a will (or any other document),
then intestacy
