Trusts & Wills Flashcards
- Choice of Laws
- Valid Will:
- Formal Will
- Holographic Will
A will is valid in CA if it is valid under
(1) CA laws,
(2) laws of state where Testator executed will, or
(3) laws of state where Testator domiciled at time of death.
Valid Will
Formal Will
- Capacity
- Intent
- Sign
- Writing
-
Witnesses
- Harmless Error
A valid formal will req (1) capacity and (2) present testmntry intent (3) to sign (4) a writing (5) in the joint presence of 2 W’s who u/stand the instrmnt is a will.
- Capacity: T mst be (1) at least 18 and (2) of sound mind. H,T
- Intent: Whn a T signs an instrumnt, s/he mst intend it have testmntry effect, and u/stand s/he is executing a will. H,T
- Sign: T or someone in his/her presence and direction must sign the will.
- Writing: The entire will must be in writing. H,T
-
Witnesses: A formal will must be signed or acknowledged in the joint presence of & attested to by 2 Ws. Ws mst be aware instrument is a will, bt need not read the will, or sign the will in the presence of T or each other. Ws must be of sufficient mental capacity to comprehend the act of witnessing a will. [In CA, an interested W is competent.]
- [Harmless Error: If a will is not executed in compliance with witnessing requirements, the will may be admitted into probate if the will proponent establishes by clear and convincing ev that at the time the T signed the will, s/he intended the will to constitute the T’s will.] H,T
Holographic Will
- Capacity
- Intent
- Handwritten
- Sign
Lack of Date
CA recognizes holographic wills, which requires the T to (1) have cap, (2) intend doc be a will, (3) handwrite mat provisions, and (4) sign the will. A holographic will need not be witnessed.
- Capacity: T mst be (1) > 18 and (2) of sound mind.
- Intent: Whn T signs an instrument, s/he must intend it have testmntry effect, and u/stand s/he is executing a will.
- Handwritten: The T must handwrite the material terms.
- Sign: T or somone in his/her presence and direction mst sign the will.
Lack of Date on HW affects its validity whn there is an issue with test capacity, or there is a possibility that two or more wills should be probated that are inconsistent. In this instance, the HW is invalid to the extent of the inconsistency. H/e, the HW controls if competent ev establishes the HW was executed after the other will’s execution date.
Revocation
- Physical Act
- Subsequent Will or Codicil
Revocation: A T retains the ability to revoke a will at any time prior to death. A will can be revoked by (1) SI, or (2) PA.
- Revocation by Physical Act: A will cn be revkd by phys act if T (1) intended to revoke will, and (2) will is burned, torn, destroyed, or cancelled by the T. A will executed in duplicate is also revoked if one of the duplicates is revoked by physical act.
- Subsequent Instrument: A will can be revoked by executing a later valid will or codicil that partly or completely revokes the prior will. The revocaion can be express or implied by the terms of the subsequent instrument.
Acts of Independent Significance
Ambiguities
Acts of Independent Significance: Blanks in a will can be filled in w/ bens or prop by referring to acts or docs executed during a T’s lifetime for nontestamentary motives. <em>H, T did nt name wife in 2001 will. Ted referred to wife as “wife of 20 years”. The blank could be filled in with Wendy because when T executed the will in 2001, he was married to Wendy. </em><em>Thus, “wife of 20 years” referred to Wendy.</em>
Ambiguities: CA allows extrinsic ev to resolve patent and latent ambiguities in a will. <em>H, if T was married to W for 20 yrs in ‘01, extrinsic ev ws admis to resolve ambiguities relating to “wife of 20 yrs” by showing T intended to gift to Wendy. T, extrinsic ev resolved ambiguities relating to “wife of 20 years”.</em>
Codicil
A codicil republishes a will so the will is deemed re-executed at the time of the codicil. A codicil is a TI modifying an earlier will, and must be executed with the same formalities as a will.
Valid Pour-Over Will
A T may by will bequeath estate assets to an IVT, provided the will ID’s the trust, & the bequeath provisions are set forth in a written instrument executed b4 or currently with the T’s will execution.
H, when [Settlor] established the trust, [Settlor] executed a valid will pouring over to the trust all [Settlor]’s [describe assets].
T, there was a valid pour-over will.
Lapse
Anti-Lapse Statute
Lapse: Whn a devisee dies after the T executes a will bt b4 th will becms effective, th gift to th devisee fails or lapses.
Anti-Lapse: U/ CA’s anti-lapse statute, if a gift is made to a blood relation of th T, & the relation predeceases the T, but leaves iss, the iss succeeds to th gift.
Former spouse
Upon divorce, a will that leaves everything to a former spouse is invalid.
*A will executed after dissolution of marriage will not be invalid though the beneficiary is a former spouse.
Omitted Spouse
- Omitted Spouse Intestate Share
Omitted Spse: A marriage after the execution of a will does not invalidate the will. A spse nt mentioned in a will is entitled to an intestate share of the T’s estate, UNLESS:
(1) omission of spse was intntionl, and intent apparent in th will,(2) spse ws given prop outside of will in lieu of a disposition in will, or (3) spse is pty to a valid a/ment waiving right to share in estate.
Omitted Spse Intestate Share: Dec’s share of CP passes to surving spse; other 1/2 already belongs to surving spse. Th survng spse taks 1/2 of dec’s SP IF the dec is survived by 1 child or isse of child, or parent or isse of parent, & heirs inherit the other 1/2. Survng spse taks 1/3 of dec’s SP IF dec spse is survived by > 1 child or issue of child, & heirs inherit 2/3 of dec’s SP.
Adopted Child
Adopted children inherit from their parents as if they were natural born children.
Pretermitted Child In CA…
In CA, if a decednt fails to prvde for child born or adopted after th execution of all TIs the child receives an intstate share of th decednt’s estate UNLESS:
(1) dec provdd for child by tfr outsde TIs & intended tfr be in lieu of provision in TIs,
(2) whn th TIs were executd th dec’s had 1 or more children and left substantially all of the estate to the other parent of the pretermitted child, or
(3) the dec’s failure to prvde for child was intentional and intent appears on the face of the TI.
H, since C was conceived during marriage, and born following dissolution of marriage, and H did not execute his valid revocable trust until one yr after dissolution, it was unlikely C was a pretermitted child. C was likely born before, not after, H executed all TIs. Thus, C was not an omitted child
If concluding not “pretermitted child” continue to “Living Child”
Non-marital child ren inherit…
Non marital children inherit from and through their mother, but not from their father UNLESS paternity is est by
(1) subsequent marriage of the parties,
(2) adjudication of the paternity during the father’s lifetime, or
(3) clear and convincing proof of paternity after the fathers death.
Living Child
Living Child Intestate Share
If at th time of th execution of all of dec’s TIs effective at the time of dec’s death, the dec failed to provde for a living child solely b/c th dec believed child to be dead or ws unaware of child’s birth, th child shall receive a share in the estate equal in value to tht whch th child wld hve received if the dec had died w/out having executed any TIs.
Living Child
Living Child Intestate Share
Per Capita
If th dec dies w/out a surviving spouse or domestic partner, thn intestate distribution is first to issue in any generation. Issue is defined as descendants, incl. descendants more remote than children (eg, grandchildren). If no issue survives, the prop passes to the decendant’s parents. H, H nenver remarried so estate if he dies intestate passed to his issue in any generation, which at time of death were A,B and C, and then to Mom if no issue survived. Thus, H’s estate first went to A,B, and C.
