Wills

Question 1

California Will Validity

Answer 1

A will is valid if it is valid under CA law 2) the law of the state where executed or 3) law of the state when the Testator is domiciled

Question 2

Formal will - elements

Answer 2

A lawfull will requires 1) a writting 2) signed by the T with capcity 3) signing was witnessed by 2 disinherited indiviuals present at the time of the settlor’s signature 4) witnessed during the T’s lifetime 5) an understanding that they are signing the T’s will

Question 3

As of 1/2009, if a will fails a witnessing requirements what type of evidence do you need to show to validate the will?

Answer 3

clear and convincing evidence of the T’s intent may still validate the will

Question 4

Holographic will

Answer 4

CA recognizes holographic wills, which require a T to 1) intend the doc to be a will 2) have capcity (18 years and sound mind 3) handwrite the material provisions 4) sign

Question 5

Holographic wills do not need

Answer 5

witnesses

Question 6

Testamentary capcity

Answer 6

A t must be

1) at least 18 years old and intent to create a will

2) understand the nature and extent of their property

3) understand the natural objects of their bounty (ie realtives and friends)

Question 7

Appointment of a converstator alone

Answer 7

does not prove a lack of capcity

Question 8

Lack of capcity - When a T is found to lack capcity, their entire will

Answer 8

is invalid, resulting in intestate sucession. Capcity is evaluated at the time of execution

Question 9

Exception to lack of capcity

Answer 9

if there was a prior valid will, it is not affected by the invalid will.

Question 10

Insane delusion

Answer 10

When a T forms a belief for which there is no factual basis but adheres to despite all reason and evidence to the contrary. An insane delusion sets aside a will if it is the cause of a will creation

Question 11

Dependent relative revocation

Answer 11

Cancels a revocation that was made under a mistaken belief of law or fact by the T. Doctrine applies when the T would not have revoked his orginal will but for the mistaken belief that subsequent will they prepared would be valid

Question 12

Valid Revocation - 3 ways

Answer 12

subsequent instrument

physical act

lost

Question 13

Valid Revocation - Operation of law

Answer 13

when a will is made naming a spouse as a divisee, but then the couple divorces. Divorce revokes the former spouses gift

Question 14

An act by the T that would revoke the will

Answer 14

A T may make an overt act to revoke the will such as drawing a line through it or tearing it up. Even if only one copy is torn or marked, the act will have the effect of revoking all the copies

Question 15

Pretermitted Child

Answer 15

In California, 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 16

Per capita distribution

Answer 16

In CA if the surviving issue are all of equal degree of kinship, then the property passes per capita. If they are of unequal kinship and the decedent dies intestate or does not specify otherwise, per capita with representation is used.

Question 17

Intestate succession for CA

Answer 17

CA intestate scheme divides an intestate estate evenly at the first generation there is a live taker

Question 18

Per capita with representation

Answer 18

Per capita with representation representation divides the property at the first generation where there is at least one survivor, with pass through if pre-deceased.

Question 19

Integration

Answer 19

All papers are integrated into a will if 1) the papers are actually present at the execution; and 2) the testator intends the papers to be a single will by a physical connection.

Question 20

incorporation by reference - A separation document may be incorporated into a will by reference if the document is

Answer 20

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 21

Pour-over will

Answer 21

A valid will which pours over the estate of the decedent upon his death into a trust is a pour-over will. Here, the trust must have been in existence at the time the pour-over will was executed.

Question 22

Modification by codicil

Answer 22

A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil must satisfy the same formalities as a will. Execution of a codicil republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil.

Question 23

Ambiguities

Answer 23

During probate, a court will consider extrinsic evidence to clarify ambiguities.

Question 24

revocation by subsequent will or codicil

Answer 24

Revocation of a formal will can be done by executing a subsequent valid will or codicil. A will can also be revoked by physical act, such as burning or tearing. Duplicate copies of that will are also considered destroyed when the testator destroys one copy.

Question 25

revocation by divorce

Answer 25

In California, a divorce renders all gifts to previous spouses as revoked.

Question 26

Interlineation

Answer 26

Occurs when a testator attempts to modify a gift in his will by writing over the devise and attempting a modification. This change requires it be in the testator’s own handwriting and signed. Generally, a devise cannot be increased, and an attempt to decrease will result in an interpretation by the court that the gift is void.

Question 27

Community property state implication

Answer 27

– As California is a community property state, when a spouse dies with a will, they may transfer ½ of community property and all of their separate property by will. The surviving spouse owns the other half of community property.

Question 28

Disinterested witness

Answer 28

A will is only valid if it is signed by the testator in the presence of two disinterested witnesses. Any such gift to an interested witness is presumed invalid– a witness will only take their intestate share if they can rebut this presumption.

Question 29

CA witness rule

Answer 29

In California, a will must be signed in joint presence of and attested by two witnesses. They don’t need to read the will, just need to know it’s a will.

Question 30

Fraud

Answer 30

A will is fraudulent if a person 1) intentionally made a misrepresentation; 2) of material fact; 3) in order to get testator to sign; 4) and the testator did so.

Question 31

Fraud in the execution

Answer 31

If a forger signs the will it will be deemed invalid, and the property passes by intestate succession.

Question 32

Fraud in the inducement

Answer 32

Occurs when a wrongdoer’s representations affect the contents of a will. Only that portion of the will affected by fraud will be invalidated.

Question 33

Fraud in preventing the T from revoking

Answer 33

If this occurs, a court will not allow the will into probate and the testator’s property will pass via intestacy rules.

Question 34

Undue influence (DEF)

Answer 34

exists when a person exerts influence that overcomes a testator’s free will.

Question 35

Undue influence elements

Answer 35

1) testator susceptible to influence; 2) wrongdoer had access and opportunity; 3) wrongdoer took an action to influence; and 4) there was an unnatural result.

Question 36

CA Statute of Undue Influence

Answer 36

Occurs if the testator makes a donative transfer to 1) the person who drafted the will; 2) a care custodian of a testator who is a “dependent adult”; 3) a person in a fiduciary relationship with the testator; 4) a person who is a spouse, domestic partner, employee, or is related by blood to a person in one of the previous three circumstances; or 5) a partner, shareholder, or employee of the law firm in which a person who drafted the will or one in a fiduciary relationship with the testator has an ownership interest.

Question 37

CA presumption of Undue Influence for witnesses

Answer 37

If the beneficiary is also a witness, and there are not at least two other disinterested witnesses, undue influence will be presumed.

Question 38

Intestate distribution

Answer 38

The surviving spouse gets all community property and quasi community property, as well as all separate property if the decedent left no issue, parent, brother, sister or issue of a deceased brother or sister; or, the surviving spouse gets ½ separate property if the decedent left one child or grandchild; or the surviving spouse gets 1/3 separate property left two or more children. All that remains is distributed equally if the same kinship, or per capita distribution otherwise.`

Question 39

Lapse of gifts

Answer 39

If a beneficiary dies prior to the testator, the gift lapses and returns to the estate. California has an anti-lapse statute that provides the gift will not lapse and will instead pass to the beneficiary’s issue.

Question 40

Anti-lapse statute

Answer 40

requires that 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 41

Revival

Answer 41

A previously revoked will may be revived if it is evident from the testator’s contemporaneous or subsequent declarations that the testator intends the previous will take effect as executed, or to the extent it appears from the terms of a later will, the testator intends the previous will take effect.

Question 42

Revival of a revoked will

Answer 42

A will revoked by physical act will be revived if the testator demonstrates intent to revive. A revoked will is revived by republishing a subsequent will that complies with formalities.

Question 43

Widow election

Answer 43

When a spouse dies and leaves community property to another, the surviving spouse can elect to take her share of the community property or her devise under the will. (A widow has to select, likely to choose whichever leaves her more – intestate distribution or the will).

Question 44

residual estate

Answer 44

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

Question 45

class gifts

Answer 45

When a gift is given to a group of people rather than one person, a class gift is issued. If one member of the class predeceases, their issue does not receive the gift, but instead it is shared within the class.

Question 46

No surviving issue

Answer 46

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 47

Per stripes (Branch) distribution

Answer 47

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

Question 48

Intestacy

Answer 48

In California, intestacy statutes use modern per stirpes – the residue of the estate is divided equally among the first generation of living heirs.

Question 49

Living child intestate share

Answer 49

Under California law, if the decedent dies without a surviving spouse or domestic partner then the intestate distribution is first to issue in any generation. If no issue survives, the estate passes to parents.

Question 50

General gift

Answer 50

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

Question 51

Specific gift

Answer 51

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

Question 52

Demonstrative gift

Answer 52

gift of a specified amount from a specified asset.

Question 53

ademption by extinction

Answer 53

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 California, a specific gift is adeemed only if testator intended the gift to fail.

Question 54

residuary legaatee

Answer 54

The beneficiary who received the residual estate.

Question 55

Abatement

Answer 55

the process of reducing gifts when assets are insufficient. Gifts abate in order: residuary, general then specific. Gifts within a specified class abate equally.

Question 56

Adopted child

Answer 56

Adopted children inherit from their parents as if they were natural born children.

Question 57

Omitted spouse

Answer 57

The distribution for an omitted spouse is ½ decedent’s community property and quasi community property. If the will was executed before marriage, the spouse will receive an intestate share. The spouse does not receive a share if intentionally omitted, given property outside the will, or if in line with a prenuptial agreement.

Question 58

Pre-martial agreements

Answer 58

agreement allows parties to contract outside of community property laws and is valid if in writing and signed by both parties.

Question 59

when are pre-martial agreements not valid

Answer 59

if 1) involuntary (a party is not represented by independent legal counsel, a party didn’t have at least 7 days to review the agreement, a party was not fully informed in a language they understand; and the agreement was executed under duress, fraud, undue influence or lack of capacity) 2) unconscionable (terms are unfair or party did not understand the other party’s property) or 3) it encourages divorce.

Question 60

Living child

Answer 60

In California, 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 61

non-martial children

Answer 61

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 62

Omitted child

Answer 62

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 63

pretermitted spouse

Answer 63

One omitted from the will, provided the couple married after the execution of the instrument. Entitled to their intestate share of the community property and separate property of the decedent unless intentionally excluded or provided for otherwise.

Question 64

testators gift of community and separate property

Answer 64

A testator may only gift his share of the community property, as well as any separate property they own.

Question 65

Substantial compliance - CA rule

Answer 65

will that falls short of the required formalities will be treated as if it had done so if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended that the will constitute the testator’s will.

Question 66

Mental disorder

Answer 66

A testator also lacks testamentary capacity if she suffers from a mental disorder involving delusions or hallucinations that results in her devising property in a way that she would not have done but for the delusions or hallucinations.