Wills Flashcards
Who is a deceedant?
A person who dies
What is a will
A device for conveying property
Who is a spouse?
Legaly maried or registered partner.
What does a spouse get in intestate succession?
Spouse gets decedent’s half (plus their own CP) of community property. Plus:
If only the spouse, they get all (SP)
Spouse plus 1 descendant Spouse gets half of SP
Spouse plus 2 or more descendants, Spouse gets 1/3 SP
What happens if a decedent dies intestate with no heirs?
The property goes tot he goverment
What is per capita devision?
If all parties are at the same generation, each gets an equal share.
What is a per capita with representation?
The estate is divided equally at the first generation with a survivor. Then the issue can stand in for a parent and divide among parents’ issues.
How can you dienherit your kids?
Only by will
What is required for a valid Will
(1) Signed writing, (2) At least Witnesses, (3) Testamentary intent.
What is required for a witness to sign or acknowledge a will?
A witness must sign before the testator dies; presence is conscious presence, and the witness must be aware the act is being performed.
What is the harmless error rule?
A will may be admitted if there is clear and convincing evidence that the decedent intended to make a will. Substantial compliance is enough.
Does not apply to the signature of the testator
What is a holographic will?
A handwritten will. It must be signed, but witnesses are not required. Material provisions must be in the testator’s handwriting.
What is a codicil
A supplement to a will. Must comply will all formalities as a will (signed, witnessed, intent). A holographic codicil is a thing.
What avoids probate?
Joint Tenancy, poor over will, Payable on death clause, revocable trust, deed
3 ways to revoke a will
Subsequent insturment, physical act, operation of law
What is a residuary gift?
A gift of everything else
What is required to revokeby physical act?
An intent that the will be revoked, must destroy material portions
What about a lost will?
A rebuttable presumption that the will was destroyed. A duplicate original is admissible; a copy is not.
What happens to a codicil if will revoked?
Its revoked
Does California recognise revival?
No, if a will is revoked, an earlier will is not automatically revived.
What is dependant relative revocation?
If a person revoces for a specific reason that was a mistake, it may be possible to revive the revoked will.
Rules for interpreting wills?
Plain meaning, four corners of the document, incorporation by reference,
What is lapse
at common law, if the person dies before, the gift lapses and goes to the residue. In
What is the CA anti-lapse statute
If the gift was intended for a blood relation and they are survived by issue, then representation applies. Class gifts also don’t lapse at common law
What is a specific Gift?
Gift of specific property
What is a general gift?
A gift satisfied from General assets
What is a demonstrative gift?
A gift from a specific source
What is extinction by ademption?
At common law, a gift of a specific property that no longer exists. In CA may transfer to other property if it is consistent wit the intent of the testaor.
What is satisfaction?
When the property identified in a specific gift is given in life.
What is a latent ambiguity?
An ambiguity that is not clear on its face but comes up when you know more? (my brother)
What is a patient ambiguity?
Ambiguity on its face.
What can be done to clear up an ambiguity?
Outside evidence.
What is required to alter a mistake in a will?
Clear and convincing evidence
What is the effect of marrage after a will?
Treated as a partial revocation, spouse gets what is due under intestacy.
What is an advancment?
Treated as satisfaction, requires a contemporatious writing or hier identifies it as such.
How do you handel advancment?
Add price back to estate, divide estate, deduct the gift from the share
What are the effects of omited children?
Intentional disinheritance is good.
If by mistake, child receives an intestate share
What is the slayer rule?
If you kill someone, you cannot inherit, and the courts apply it as if the killer predecesed the testator, no lapse doctrine.
What is a disclaimer?
A person can refuse to inherit, there are requirements, such as it must be in writing.
Who can challenge a will?
Only interested parties (those who would take under the will or at intestate succession.
What is required for capacity?
18 years old and of sound mind.
Who has the burden to challenge capacity?
Challenger bears burden to show the testator lacked capacity at the time of the will.
What knowledge is required for capacity?
The ability to know/understand (but not actual knowledge) the Nature of the act, the nature and character of their property, the natural objects of the bounty (family members), plan of disposition
What is an insane delusion?
The testor clings to a belief not in accordance with the facts. If the average person could not reach the same conclusion and the delusion is a “but for” cause, then can be challenged.
What is undue influence?
A third party controls decisions and benifts. Three-factor test:
1. Weakened state
2. Apparent authority of the influencer
3. Actions or tactics
4. Equity of the result (outcome)
Presumed Undue influence ?
Person in professional authority
Participated in the drafting
Inconsistent with the natural outcome
Presumed invalid gifts
Rebuttable presumption
Gift to the drafter of the will
Gift to fiduciary that scribed the will
Gift to adult caretaker if will was drafted within 90 days
Gift connected to the above
What is required for fruad
The influencer made a misrepresenation
Fruad in the inducement
Fruad in the execution
What goes through probate?
anything passed by will or intestate succession
What is abatement?
If gifts cannot be satisfied, then some will be abated (removedor adjusted)
What is the order of abatment?
Intestate property
Residuary gift
General bequest to people other than relatives
General request to relatives
Specific request to people other than relatives
Specific bequests to relatives
How long to challenge probate?
120 days from the time claim is opened.
What is a forfiture cluase?
If a benificiary challenges the will, then that person does not inherit.
Only enforced without probable cuase
Personal Representative
Estate Administrator, if appointed by the court
Estate executor if named in the will
What is required for testamentary capacity?
18 years old and of sound mind. Sound mind means they know and recall:
1. the nature of their estate
2. Their relatives and relationships
3. The nature of the act
What is the omitted children’s rule?
In CA, if a child is born or adopted after the will is created, they receive an equal share to intestacy
