Wills

Question 1

Wills Main Checklist

Answer 1

1. Validity
2. What Does the Will Consist of?
3. Revocation/DRR/Revival
4. Distribution Under will (Instrument/Asset/Party)
5. Intestate Succession

Question 2

I. Validity

Answer 2

1. Intent
2. Capacity
3. Formalities

Question 3

Formal Will

Answer 3

1. A writing
2. Signed by a testator with Capacity (at least 18 of sound of mind)
3. The signing was witnessed by two disinterested individuals present at the same time of settlor signature.
4. Witnessed during the testator’s lifetime
5. And Understanding they signed the testator’s will.

Question 4

Holographic Will

Answer 4

1. Intend the document to be a will
2. Have a capacity of 18-years of sound mind
3. Handwrite the material provisions; and
4. Sign (witnesses are not required)

Question 5

II. What does the Will consist Of?

1. Integration

Answer 5

All papers are integrated into a will if:

1. The papers are present at the execution; and
2. The testator intends the papers to be a single will by a physical connection.

Question 6

2. Codicil

Answer 6

A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will.

Question 7

3. Incorporation by Reference

Answer 7

Any separate document may be incorporated into a will by reference if the document is:

1. In existence at the date of the will.
2. Intended to be incorporated.
3. Described in the will; and
4. Proven to be the document described.

Question 8

4. Independent Significance

Answer 8

A testator may refer to some unrelated act or event that has some independent significance (i.e., not testamentary in nature), for the purpose of either designating the beneficiaries or the property to be given away via a will.

Question 9

III. Revocation

1. Subsequent Testamentary Instrument

Answer 9

Revocation of a formal will can be done by executing a subsequent valid will or codicil.

Question 10

2. Physical Act

Answer 10

Destruction, marking X, or tearing.

Question 11

3. Operation of Law

Answer 11

Divorce or Death

Question 12

4. Dependent Relative Revocation (DRR)

Answer 12

Cancels a revocation made under a mistaken belief of law or fact by a testator. The doctrine applies when the testator would have not revoked his original will, but for the mistaken belief that a subsequent will they prepared would be valid.

Question 13

5. Revival

Answer 13

A will may be revived if the testator revokes the will he no longer wants to be his will and republished the old will either by re-execution or by codicil.

Question 14

IV. Distribution Under Will (Asset/Party)

Residual Estate

Answer 14

The residue of an estate is what remains after all other gifts from the testator’s will have been honored.

Question 15

Class Gifts

Answer 15

When a gift is given to a group of people rather than one person, a class gift is issued.

Question 16

General Gifts

Answer 16

A general gift is a non-specific gift satisfied from any of the funds remaining in the estate.

Question 17

Specific Gifts

Answer 17

A specific gift is one that is specifically identified, such as real or personal property.

Question 18

Demonstrative Gift

Answer 18

A demonstrative gift is a gift of a specified amount from a specified asset.

Question 19

Lapse of Gifts

Answer 19

If a beneficiary dies prior to the testator, the gift lapses and returns to the estate.

Question 20

Anti-Lapse Statute

Answer 20

California has an anti-lapse statute that provides the gift will not lapse and will instead pass to the beneficiary’s issue. Requires:

1. The decedent died with issue;
2. The decedent is related to the testator; and
3. There is no contrary intent by the testator.

Question 21

Ademption by Extinction

Answer 21

A specific gift adeems by extinction if the testator does not own it at the time of death. This does not apply to general gifts. In CA, a specific gift is adeemed only if the testator intended the gift to fail.

Question 22

Living Child

Answer 22

In CA, upon a testator’s death, if the testator failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the child, the child receives an intestate share.

Question 23

Non-Marital Children

Answer 23

These Children do not inherit through their father unless:

1. There is a subsequent marriage of parents
2. There is an adjudication of paternity during father’s life;
3. Clear, convincing proof of paternity is provided after the father’s death.

Question 24

Omitted Child

Answer 24

A child that is not mentioned in a will that was executed after the child’s birth or adoption is presumed to have been omitted accidentally and is entitled to an intestate share unless:

1. Provided for outside the will;
2. Decedent left the estate to the parent of other children;
3. The failure to provide for the child was intentional.

Question 25

Pretermitted Child

Answer 25

In CA, a child born or adopted after the execution of a will or revocable trust, the child receives an intestate share of the estate unless: 1. Child was intentionally provided for outside the will. 2. When the will was executed the testator left all of most of the estate to a different parent of a different child; or 3. The decedent intentionally did not provide for the child.

Question 26

IV. Distribution

Answer 26

1. Testate - died with a will. | 2. Intestate - died without a will.

Question 27

No Surviving Issue

Answer 27

If the testator leaves no issue, their estate passes to the nearest generation equally, in order: - Parents - Parent's Issue - Grandparents; - Then Grandparent's Issue

Question 28

Per Capita Distribution

Answer 28

In CA, if the surviving issue is all of an equal degree of kinship, then the property passes per capita. Per Capita with representation divides the property at the first generation where there is at least one survivor, with the pass-through if pre-deceased.

Question 29

Per Captial Generation

Answer 29

As an example: A has three kids, and two die. Survivor gets 1/3, and the remaining 2/3 gets divided among all of the next generation members.

Question 30

Per Stirpes (Branch) Distribution

Answer 30

In per stirpes distribution, the estate is distributed equally among beneficiaries. If a beneficiary predeceases the testator, their share passes on to their surviving descendants. (3 children, one dies, two get 1/3 each, issue of the third child split his 1/3rd)

Question 31

Validity

Answer 31

1. Intent 2. Capacity 3. Formalities A. Formal Will B. Holographic Will

Question 32

What Does the Will Consist Of?

Answer 32

1. Integration 2. Codicil 3. Incorporation By Reference 4. Independent Significance

Question 33

Revocation

Answer 33

1. Subsequent Testamentary Instrument 2. Physical Act 3. Operation of Law * Dependent Relative Revocation (DRR) * Revival

Question 34

Distribution

Answer 34

1. Testate - w/ will | 2. Intestate - w/o will