W&T Flashcards
per stirpes
property distributed divided into as many equal shares as there are living children and to issue of predeceased child by right of representation
valid formal will?
1) testamentary intent
2) signature
3) Witnesses
holographic will
1) material provisions in T’s handwriting
2) signature
3) date
preprinted will
Preprinted portions not necessary to establish validity
capacity
1) 18 years or older
2) of sound mind
of sound mind
need facts that show under influence during writing/signing the will
Dependent Relative Revocation
DRR
the revocation of will 1 was dependent on validity of will 2, then will 1 revived. Courts look for a repeated purpose (wills essentially the same in purpose). will 2 fine tuned the first will
omitted child
law presumes that the decedent unintentionally omitted children
Reestablishing revoked will §6123
all prior wills stay revoked unless revocation of will 2 was done with express intent to revive will 1. need clear and convincing evidence to prove this
codicil
supplement or amendment to the will
C adopts D
D becomes C’s heir at law/ issue
holographic will
all material provisions in T’s handwriting
T dies intestate with 3 children
distribution is equally to her children
will/ last will and testament
lawful voluntary disposition of assets upon death.
testator
male on who makes a will
testatrix
female one who makes will
devise
real property
bequest
only applied to personal property (boat)
legacy
gift of money
any form of property passing under a will
no longer a distinction as to what type of property
heirs at law
persons designated by statute as being next in line to inherit
beneficiary
persons designated by the will to inherit
issue
lineal decedents of the decedent- children, great grandchildren
dying intestate
dying without a will or trust or without a valid will or trust. In this case the rules of intestacy govern how the decedent’s property is distributed.
does decedent have surviving spouse?
legal spouse/ registered domestic partner - if so intestacy rules apply. If dies without a surviving spouse then there is no CP it is separate property (SP go equally to decedent’s children or issue of those children)
what is characterization of the property that the decedent left behind?
if CP then surviving spouse gets decedent’s 1/2 interests in the CP and maintain their own 1/2 interest
Property subject to Intestacy Provisions:
any part of estate of decedent not effectively disposed of by will passes to decedent’s heirs
no children
parents, then siblings, then nieces and nephews (none exist - goes to spouse)
separate property: intestate share of the surviving spouse or RDP is
entire estate if decedent did not leave any surviving issue, parent, brother, sister or issue of a deceased bro/sis
OR
1/2 of intestate estate if decedent leaves a child or issue of deceased child
OR
leaves no issue but leaves a parent or parents or their issue or the issue of either of them
no surviving spouse
all to children or issue
no surviving spouse, or children
surviving parents, issue of parents, surviving gp, issue of gp, issue of predeceased spouse, other surviving relative of decedent, surviving parent of predeceased spouse, issue of parents of predeceased spouse
child predeceased
share divides evenly among their issue
mother filed an appeal to deny father being heir based on equitable priniciples
intestate heirs cannot be disinherited based on those circumstances.
Look back rule
if no spouse or issue
Valid will?
Holographic
- testamentary intent
- material dispositive provisions (i leave)
- signed
- dated
- no witnesses needed
divorce
revocation by operation of law upon divorce
Grandchildren
take under intestacy as lineal descendants of T through their predeceased parent who is T’s son.
adopted child
legal heir as an adopted child
adult adoptions okay in CA
Omitted
CA identifies omitted spouse or children only not grandchildren
Ex-spouse
does not take under intestacy
gift
revoked by operation of law
will invalid
assets go by intestacy
intestacy
statutory distribution to heirs according to law when no will.
survivorship period
statutory time period must survive is 120 hrs
exception to revive prior will
express intent that the reason for revoking 3 was to revive number 2 does not automatically revive.
joint will
two wills one doc.
reciprocal wills
do they also include an expectation of being contractually bound to those mirror wills
No
republication by codicil
codicil can revoke
or could say revoke paragraph 5.
in timeline create a will have a life event
codicil
republish the will
make statement want and don’t want
has the effect of adding second date to the will - reaffirmation/republication
Stoker
hereby revoke my trust as of Aug. 28, 2005.
Statement of revocation
how do you do a codicil to a doc. that legally doesn’t exist
- intent of revival
Codicil okay when
can revive by codicil a will that has been revoked
codicil not okay when
cannot revive a will that has been destroyed by obliteration
thompson case
sign statement on back of manuscript cover - can read it not revoked
can read between the lines of the revocation
can be revived after being revoked because not physically destroyed
Incorporation by Reference
- Writing in existence when will is executed
- intent to incorporate
- sufficient description to identify the writing
- cannot incorporate documents into intestacy
- documents that came into existence after the will was already drawn up cannot be incorporated by reference.
- Codicils can also incorporate by reference documents that existed prior to the codicils existence
Trusts
put not your trust in money, but put your money in trusts - oliver wendel holmes
will
who gets what, then administrator of estate or instructor of will carry out in terms of intestacy or california state law. Testamentary documents.
trusts
document goes beyond the scope of the will.
- education funds to children
- donations
- either upon death of testator
- testator devises to trustees for certain purposes.
executor
under will
administrator
intestacy
Trustee
trust - takes legal title to the assets (bare legal title) oversee the trust and use the assets in accordance with what the trust says to do.
legal title
…..
beneficial ownership
equitable title
beneficiaries
hold beneficial/equitable ownership interest. can’t help themselves but have a right to the asset.
bifurcation of title
put asset into trust - give trustee legal title- beneficial title resides with the people named in the trust to receive the benefit
can’t do under the will - different categories of beneficiaries
son gets money from the income from the trust/ income only from municipal bond for 5 years. after 5 years distribute bond equally between children.
gift
upon death give everything to son and hold 100k and give to grandchildren. then whomever pick as remainder beneficiary. different things going on at the same time. (different entitlements)
life estate/ term of years
remainder. not like residual beneficiaries under a will. Remainder gets a longer wait because have to wait for expiration of a life estate.
vested in inheritance share
delayed distributions/ sprinkling provisions - make sure clear where the vesting will occur.
1854 will - trust built into the will
that trust doesn’t come into being until testator passes
living trust/ irrevocable inter vivos trust
put in place right now, need trustee. Don’t pay yourself a trustee fee or owe income taxes on your own money.
ma pa trustees/ beneficiaries
trustors/ trustees/ beneficiaries
merger
trustees same as beneficiaries/ never get transfer a title. sever joint tenancy deeding property already own in one fashion in another title setup
ma pa transfer legal title from themselves
- you can’t transfer ownership from ma pa as trustees and beneficiaries no transfer of interest and no bifurcation of title. because then no trust would exist.
mergeer prevents us from having them in all three categories
exception to doctrine of merger in CA
LE
as long as beneficiaries
ma and pa have life estate. during your life time all these assets in trust are in that trust for you. no doctrine of merger problem because you are only getting LE. Remainder distribution to others.
express statement of creation of a trust
Probate code 15200: establish express trust (inter vivos or testamentary)
- declaration by testator - declare this to be a trust
-
tetamentary trust
trust created under a will
standa alone entity during the life
inter vivos
testamentary transfer
trust built into the will
or
who was to receive the assets of his estate/ not his kids his trust (pour over will) pour over assets from estate into trust (form of testamentary transfer)
living trust
inter vivos already operational
pour over will
the will was supposed to transfer any assets that weren’t already in his trust (michael jackson) present transfer of assets into trust. and testamentary transfer catch anything not already in the trust
exercises of powers of appointment
see class 21
enforceable promies
someone promises and it is enforceable there is consideration paid then bring in terms of contract to establish the existence of the trust. Iowa 2006 case - mom dated home to herself and daughter as joint tenant (gift taxes paid) outcome when mom dies - deed showed presumption of right of survivorship. transfer from mom to ma and daughter as joint tenants. delivered letter to children that when property was sold after her death by her daughter, that the proceeds divided equally among the children. siblings say mom created a trust. daughter is trustee. Bc the letter signed in conjunction with recording of the deed satisfied SOF and determined to be a trust.
right of survivorship
rebuttable presumption - clear evidence of what mom intended. how big of gap?
