Wills Flashcards
Wills Main Checklist
- Validity
- What Does the Will Consist of?
- Revocation/DRR/Revival
- Distribution Under will (Instrument/Asset/Party)
- Intestate Succession
I. Validity
- Intent
- Capacity
- Formalities
Formal Will
- A writing
- Signed by a testator with Capacity (at least 18 of sound of mind)
- The signing was witnessed by two disinterested individuals present at the same time of settlor signature.
- Witnessed during the testator’s lifetime
- And Understanding they signed the testator’s will.
Holographic Will
- Intend the document to be a will
- Have a capacity of 18-years of sound mind
- Handwrite the material provisions; and
- Sign (witnesses are not required)
II. What does the Will consist Of?
1. Integration
All papers are integrated into a will if:
- The papers are present at the execution; and
- The testator intends the papers to be a single will by a physical connection.
- Codicil
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will.
- Incorporation by Reference
Any separate document may be incorporated into a will by reference if the document is:
- In existence at the date of the will.
- Intended to be incorporated.
- Described in the will; and
- Proven to be the document described.
- Independent Significance
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.
III. Revocation
1. Subsequent Testamentary Instrument
Revocation of a formal will can be done by executing a subsequent valid will or codicil.
- Physical Act
Destruction, marking X, or tearing.
- Operation of Law
Divorce or Death
- Dependent Relative Revocation (DRR)
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.
- Revival
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.
IV. Distribution Under Will (Asset/Party)
Residual Estate
The residue of an estate is what remains after all other gifts from the testator’s will have been honored.
Class Gifts
When a gift is given to a group of people rather than one person, a class gift is issued.
General Gifts
A general gift is a non-specific gift satisfied from any of the funds remaining in the estate.
Specific Gifts
A specific gift is one that is specifically identified, such as real or personal property.
Demonstrative Gift
A demonstrative gift is a gift of a specified amount from a specified asset.
Lapse of Gifts
If a beneficiary dies prior to the testator, the gift lapses and returns to the estate.
Anti-Lapse Statute
California has an anti-lapse statute that provides the gift will not lapse and will instead pass to the beneficiary’s issue. Requires:
- The decedent died with issue;
- The decedent is related to the testator; and
- There is no contrary intent by the testator.
Ademption by Extinction
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.
Living Child
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.
Non-Marital Children
These Children do not inherit through their father unless:
- There is a subsequent marriage of parents
- There is an adjudication of paternity during father’s life;
- Clear, convincing proof of paternity is provided after the father’s death.
Omitted Child
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:
- Provided for outside the will;
- Decedent left the estate to the parent of other children;
- The failure to provide for the child was intentional.
Pretermitted Child
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:
- Child was intentionally provided for outside the will.
- When the will was executed the testator left all of most of the estate to a different parent of a different child; or
- The decedent intentionally did not provide for the child.
IV. Distribution
- Testate - died with a will.
2. Intestate - died without a will.
No Surviving Issue
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
Per Capita Distribution
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.
Per Captial Generation
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.
Per Stirpes (Branch) Distribution
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)
Validity
- Intent
- Capacity
- Formalities
A. Formal Will
B. Holographic Will
What Does the Will Consist Of?
- Integration
- Codicil
- Incorporation By Reference
- Independent Significance
Revocation
- Subsequent Testamentary Instrument
- Physical Act
- Operation of Law
* Dependent Relative Revocation (DRR)
* Revival
Distribution
- Testate - w/ will
2. Intestate - w/o will
