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Specialization Exam > Transfer by Administration 2 > Flashcards

Transfer by Administration 2 Flashcards

1
Q

Will Contest

A

It is an action to prevent probate of a tendered will or revoke a will that has been admitted to probate.

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2
Q

Who has standing to contest a will?

A

Any interested person - financial interest, heir, beneficiary of dueling wills

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3
Q

Do creditors of a disinherited heir have sufficient interest to contest the will?

A

No

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4
Q

Does a judgment creditor have standing to contest the will?

A

Yes, so long as the judgment pre-dates the death

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5
Q

Does the debtor of the estate have standing to contest the will?

A

No

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6
Q

Are heirs interested persons and may contest the will?

A

Yes

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7
Q

Will / Trust Contest timing

A
  • Anytime before the hearing on the petition
  • After the will is admitted - you have 120 days
  • Minors or incompetent adults have until final distribution
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8
Q

Extraordinary Services

A

After a will has been admitted to probate, the PR has the duty to defend against attack and is entitled to an award of attorney fees for extraordinary services for any good faith defense, whether successful or not.

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9
Q

PC 21380

A

Transfers that are presumed to be product of fraud or undue influence

  • Drafting attorney
  • Person in a fiduciary relationship with transferor
  • A relative to a 3rd degree, co-habitant or employee
  • Care custodian
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10
Q

How can the presumption of transfers to undue influence be rebutted

A

Clear and Convincing Evidence - unless it is conclusive

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11
Q

Relatives by affinity

A

On the in-law side

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12
Q

1st degree relative by blood

A

Parent

Child

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13
Q

2nd degree relative by blood

A

Grandparent
Brother / sister
Grandchild

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14
Q

3rd degree relative by blood

A

Great Grandparent
Aunt / Uncle
Niece / Nephew
Great Grandchild

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15
Q

4th degree relative by blood

A

Great Great Grandparents
Great Aunt / Uncle
First Cousin
Grand Nephew / Nieces

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16
Q

Are step relationships treated the same as blood relationships?

A

No

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17
Q

Grounds for a Direct Contest

A
  • Lack of due execution
  • Lack of testamentary intent or capacity
  • Undue influence, fraud
  • Mistake
  • Revocation
  • Forgery
  • Gift to disqualified person (care giver, drafting attorney)
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18
Q

What level is needed to make a will as opposed to a trust

A
  • Will = Testamentary Capacity (PC 6100.5)

* Trust = Contractual Capacity (higher level)

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19
Q

Who has the burden of proof?

A
  • The proponent must show, in a self proving will that it was properly signed/witnessed, etc.
  • Contestants have the burden to prove - undue influence, lack of capacity, fraud, mistake, revocation
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20
Q

Challenge a transfer of property

A

A challenge that transferor transferred property was not his or her property, at the time of the transfer

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21
Q

PC 21312

A

A No Contest Clause is strictly construed

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22
Q

Action on Contract to Make a Will

A

A person may have a binding agreement to make a particular disposition of his or her property by will

  • Includes a promise not to breach the contract by revoking the will
  • If it is an oral contract - it requires clear and convincing evidence of oral agreement
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23
Q

Action Against drafting attorney

A

*Duty of care to client and expressly named beneficiaries

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24
Q

Does the attorney owe beneficiaries and heirs a duty to ascertain the client’s testamentary capacity?

A

No

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25
Q

Heyer v. Flaig (1996)

A

Attorney must anticipate the impact of a subsequent marriage.

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26
Q

Cy pres doctrine

A

If a gift is made by will or trust (usually for charitable or education purposes), and the named recipient of the gift does not exist or conducts the activity for which the gift is made, then the estate or trustee must make the gift to an organization which comes closes to fulfilling the purpose of the gift.

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27
Q

PC 21110

A

Anti-Lapse - the beneficiary is deceased - if this is not addressed, then it is transferred to issue or if no issue, then to the residual beneficiaries.

28
Q

PC 21131

A

Ademption - It is property that was specifically devised is no longer part of the testator’s estate when he died.
Example - gave Paul Blackacre but sold Blackacre for Blueacre. Paul will get Blueacre because it is a mere change of form.

29
Q

Extinction

A

If it is not in estate - e.g. the property was sold and does not have it anymore then the beneficiary does not receive anything.

30
Q

Extrinsic Evidence

A

Anything not contained in the instrument

31
Q

When is extrinsic evidence admissible?

A

Yes, to resolve ambiguities in the will. Transfer to Jack (nickname) but his legal name was John. The will referenced John. The court will allow extrinsic evidence to clear up the ambiguity.

32
Q

When is extrinsic evidence inadmissable?

A

If it is unambiguous.

33
Q

What is the trend?

A

To allow extrinsic evidence to show testator’s intent

34
Q

PC 6401

A

Intestate Succession

35
Q

Surviving Spouse Intestate Share

A

All of the CP

1/3 to 100% of the deceased spouse’s separate property - it depends on how many issue/relatives the decedent had

36
Q

Omitted Spouse

A

Not mentioned in the will executed before marriage has statutory rights

37
Q

Putative Spouse

A

Good faith belief they were married - putative spouse treated like an omitted spouse

38
Q

Annulment, dissolution, separation affect on the estate

A

Revokes the right of a spouse as beneficiary of the decedent’s estate

39
Q

Marvin Rights

A

Not married, co-habitants - they may make a claim based on a quasi-contractual agreement

40
Q

Constructive Trusts

A

An equitable remedy to prevent a party in possession of property from being unjustly enriched.
Is an equitable tool

41
Q

PC 850

A 
Resolve disputes over property ownership
Common claims:
1. Spousal property
2. Joint Tenancy
3. Totten Trust
4. Marvin Claims
5. Creditors - have standing if directly connected to the ownership of the property.
42
Q

SOL for claims (850 Claims)

A

Claims by the estate - 6 months

Claims against the estate - 1 years

43
Q

Family Claims / Protection - entitled by statute

A
  1. surviving spouse
  2. minor children
  3. decedent’s adult children who are incapacitated and dependent on decedent for support.
44
Q

When are family claims discretionary?

A

Dependent adult children or parents

45
Q

Amount of the family allowance?

A
  • Court has broad discretion for the reasonable amount
  • Has priority over other estate creditors
  • Must be paid out of the estate
46
Q

Priority of the payments from the estate

A
  1. Expenses of Administration
  2. Mortgage, deed trust, liens
  3. Funeral Expenses
  4. Taxes
  5. Expenses of last illness
  6. Family Allowance
  7. Wage claims, e.g. caregiver
  8. General debts - including judgments not secured by a lien
47
Q

Objectives of a Probate

A
  1. Decedent’s debts paid

2. Expeditious administration of the estate and security of title for beneficiaries

48
Q

CCP 366.2

A

Claims arising from liabilities of decedents must be filed within one year of the decedent’s death.

49
Q

What creditor claims are included in CCP 366.2

A

Marvin claims
Contracts to make a will
Claims include liabilities whether due, not due, accrued or not accrued, or contingent, whether liquidated or not liquidated.

50
Q

Notice to Creditors

A
  • Publish
  • PR give notice within the first 4 months
  • Notice is not required if creditor has already made a claim for payment
51
Q

Does the creditor have to file a claim before filing a lawsuit?

A

Yes
The claim must be rejected by PR
If rejected, have 90 days to file a lawsuit

52
Q

Can filing a creditor claim violate the no contest clause?

A

Yes, if the No Contest clause specifically allows for that result.

53
Q

Does filing a creditor claim toll the SOL?

A

Yes, until it is accepted or rejected. If rejected, have 90 days to file the lawsuit.

54
Q

What to do if the SOL has run?

A
  1. Go after the PR
    * Failure to give notice was in bad faith
    * Creditor had not actual knowledge of the administration
    * File a Petition against the PR
55
Q

Equitable Estoppel

A

The Creditor was tricked by PR into not filing a timely claim

56
Q

Can a beneficiary challenge a payment to a creditor?

A

Yes

57
Q

Should you file a Notice of Proposed Action before paying a creditor?

A

Yes, because those who oppose only have 15 days to object.

58
Q

When did the new No Contest Clause go into effect?

A

Any instrument which become irrevocable after 1/1/2001

59
Q

What is a contest?

A

Any pleading filed with the court by a beneficiary that would result in a penalty under a No Contest Clause

60
Q

Direct Contest

A
  1. Forgery
  2. Lack of Due Execution
  3. Lack of Capacity
  4. Menace, duress, fraud, or undue influence
  5. Revocation of a will or trust
  6. Disqualification of a beneficiary under 6112, 21380
61
Q

PC 6112

A

Interested witness who sign the will

*There is a presumption of undue influence, fraud that needs to be rebutted

62
Q

PC 21380

A

Transfer to:

  1. The drafter
  2. A person who transcribed the instrument
  3. A care custodian
  4. A care custodian who married the decedent while providing services within 90 days of those services
  5. A person related by blood or affinity
  6. A co-habitant
63
Q

PC 21380 - the presumption and how it can be over-come

A

There is a presumption of undue influence that can be overcome by clear and convincing evidence

64
Q

How will a No Contest Clause be enforced?

A
  • A direct contest that is brought without probable cause
    2. A pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer. A No Contest Clause shall not be enforced, if the No Contest Clause expressly provides for that application
    3. The filing a creditor’s claim or prosecution of an action based on it.
65
Q

When does probable clause exist?

A

If at the time of filing a contest, the facts known to the contestant would cause a RP to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.

Specialization Exam (9 decks)

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