Wills

Question 1

Intestacy definition

Answer 1

No will, or will disposes of less than all of decedent’s property

Question 2

Which Law Applies in intestacy

Answer 2

Marital: Law of the domicile at the time the property was acquired
Personal property → State of domicile at death
Real property → situs of the property

Question 3

Spouses share of CP

Answer 3

Decedent’s ½ of the community property

Ends up owning all community property

Question 4

Spouses share of quasi CP

Answer 4

Property not in CA that would be community property

Ends up owning all quasi cp

Question 5

Spouse gets ⅓ of Property if survived by

Answer 5

More than one child

One child and the descendants of one or more deceased children

Descendants of two or more predeceased children

Question 6

Spouse gets 1/2 of Property if survived by

Answer 6

One child

Descendents of one predeceased child

No descendants but a parent or descendant of parent

Question 7

Spouse gets all of Property if survived by

Answer 7

No surviving descendants
No surviving parents
No surviving descendants of parents

Question 8

Share of Descendants if All Descendants of Same Degree of Relationship

Answer 8

Determined using per capita (or equal) with representation

Question 9

Share of Descendants if Descendants of Unequal Degrees of Relationship

Answer 9

Property divided at first generation with a surviving member

Each surviving member takes a share and descendants of the deceased members divide their shares

Note: start at the first generation with surviving members for equal split and split among deceased too, then go down a level

Question 10

Share if no descendants

Answer 10

Ancestors and collaterals take anything not passing to surviving spouse in this order:

Parents: ½ each if both survive

Descendants of parents

Grandparents

Descendants of grandparents

Descendants of predeceased spouse
Next of kin

Parents of a predeceased spouse and their descendants

Escheat to the state

Question 11

Special Rules for Property Inherited from a Predeceased spouse

Answer 11

If a surviving spouse dies without descendants, the following
property the surviving spouse received from the deceased spouse
passes to the deceased spouse’s heirs rather than the surviving
spouse’s heirs:

• Real property unless the deceased spouse died at least 15 years
  prior
• Personal property worth over $10,000 unless the deceased
  spouse died at least 5 years prior

Question 12

Treatment of Adopted Child

Answer 12

Inherits from and through adoptive parents

Does not inherit from biological parent unless adopted by stepparent

Question 13

Treatment of Step-Children and Foster Children

Answer 13

Generally no inheritance

Stepchildren and foster children will be treated as adopted children if:

The relationship began when the child was a minor and continued through the parties’ joint lives, and

Clear and convincing evidence shows the stepparent or foster parent was precluded from adopting because of a legal barrier

Question 14

Treatment of Nonmarital Children with Relationship to Natural Mother

Answer 14

A nonmarital child is treated the same as a marital child if the child’s relationship to the mother is established by proof of her having given birth to the child.

A woman who contracts with a surrogate to gestate an embryo formed by the woman’s egg and her husband’s sperm is considered the natural mother of the child born

Question 15

Treatment of Nonmarital Children with Relationship to Other Parent

Answer 15

A parent-child relationship is established (and the child can therefore inherit from the parent) if:

Show father was married to mother at time of birth or within 300 days after the marriage ended

The presumed parent and natural mother attempted to lawfully marry before the child’s birth (even if the marriage is voidable), and the child was born during the attempted marriage or within 300 days thereafter

Father attempted to marry after child’s birth, and the parent is named a parent on the birth certificate or the parent promises to pay child support

The presumed parent received the child into their home and held the child out as the presumed parent’s natural child; or

There was a court judgment of parentage

Question 16

Relatives of Half Blood

Answer 16

Half-blooded collateral heirs inherit full shares no differently than full-blooded heirs.

Question 17

Treatment of Posthumous Children

Answer 17

A posthumous child who is conceived and born after the intestate parent’s death will inherit as if born during the intestate’s lifetime if the following conditions are satisfied:

Written, signed, and dated authorization for posthumous conception and designated a person to control the use of the genetic material

The person designated to control the use of the genetic material gave written notice, within four months of the issuance of the decedent’s death certificate, to the person who has control of the disposition of the decedent’s property that posthumous conception is possible; and

The child was conceived and in utero using the intestate’s genetic material within two years of the issuance of the decedent’s death certificate

Question 18

Treatment of Heir Killing Intestate

Answer 18

Cannot recover if feloniously and intentionally kills decedent

Question 19

Treatment of Bad Parents

Answer 19

No recovery if any:

Didn’t acknowledge child

Parental rights terminated

Abandoned child for at least 7 consecutive years

Question 20

Treatment of Heir who neglects or abuses elderly or dependent intestate

Answer 20

No inheritance

Question 21

Treatment of Aliens

Answer 21

In California, as in most states, a non-citizen of the United States is not disqualified from being an heir

Question 22

Advancement

Answer 22

Irrevocable lifetime gift intended as prepayment of inheritance

A writing signed either by the donor or donee is needed to prove the
advancement.

Question 23

Effect of Advancement

Answer 23

If the advancee wants to share in the estate, the advancee must
account for the advancement, that is, go into the “hotchpot.” We
compute the shares as if the advancement were still in the estate
based on the value of the property at the first of when the heir
received it or at the time of the intestate’s death. The heir has their
share reduced by the amount of the advancement. However, if the
advancement is greater than the heir’s intestate share, the heir is not
responsible for returning the excess.

Question 24

Survival

Answer 24

An heir must outlive the intestate by 120 hours.

A person who fails to
survive the intestate by 120 hours is deemed to have predeceased
the intestate for the purpose of intestate succession, and the heirs
are determined accordingly.

However, the 120-hour rule does not
apply if it would result in escheat to the state.

Question 25

Disclaimers

Answer 25

An heir, will beneficiary, life insurance beneficiary, surviving joint tenant, etc., cannot be forced to accept an inheritance or gift under a will. A beneficiary or heir may disclaim any interest that otherwise would pass to the person from the decedent. (could be burdensome, tax reasons, or to avoid creditors) NOTE: Effect of Acceptance of Benefits An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits. Once done, irrevocable

Question 26

Requirements of Disclaimer

Answer 26

Be in writing (oral disclaimers will not work) Be signed by the disclaimant Identify the decedent Describe the interest being disclaimed State there is a disclaimer and the extent of it Be filed within a reasonable time, which is presumed if it is filed within nine months after the later of the death of the decedent or the date the interest becomes indefeasibly vested.

Question 27

Effect of Disclaimer

Answer 27

Treats person as if they were predeceased

Question 28

Negative wills

Answer 28

are ineffective.

Question 29

Harmless Error Doctrine

Answer 29

“Clear and Convincing” evidence required Standard California is one of the minority of states that excuses harmless errors with respect to will formalities if there is clear and convincing evidence (not just a preponderance of evidence) that at the time the testator signed the document, the testator intended the document to be their will.

Question 30

Applicable Law for Wills Depending on Property Type

Answer 30

Real Property To the extent a will disposes of real property, its validity and effect are governed by the law of the situs, the state where the property is located. Personal Property The law of the place of the testator’s domicile at death controls the validity and effect of a will with respect to personal property

Question 31

Savings Statute

Answer 31

A will executed elsewhere is valid if it complies with: *California law *The law of the state where it was executed, or *The law of the place where at the time of execution or at death the testator was domiciled, had a place of abode, or was a national Note that these rules apply only to determine whether the will is admissible to probate. Once the will is admitted to probate, local law governs construction and application of its provisions.

Question 32

Requirements of a Valid Will

Answer 32

Legal capacity Testamentary capacity Testamentary intent Formalities

Question 33

Legal Capacity Will Requirement

Answer 33

18 years old or older

Question 34

Testamentary Capacity

Answer 34

Sound mind Elements: Must understand nature of act Must know general nature and extent of property Must recognize natural objects of their bounty Ie. Recognize family members Issues: Mentally challenged can make will if they meet these requirements A testator who is old, ill, forgetful, or addicted to drugs or alcohol does not necessarily lack the mental capacity to execute a will, but can

Question 35

Testamentary Intent Will Requirement

Answer 35

Testator intends this document to be the will

Question 36

Formalities Required for a Normal Will

Answer 36

Writing Signature Attestation

Question 37

Signature on a will

Answer 37

Any mark the testator makes or adopts with present intent to authenticate the will Can appear anywhere Proxy signatures allowed if done in testator’s presence and with testator’s direction, or done by conservator pursuant to a court order

Question 38

Attestation for a will

Answer 38

2 witnesses Must be competent at time of will execution No specified age minimum Must know the document is a will (need not know contents) Must both be present when testator signs or acknowledges signature Witnesses sign will during testator’s lifetime, doesn’t have to be together

Question 39

Interested Attestation Witness’ Take Nothing Unless

Answer 39

Presumption gift obtained wrongfully rebutted OR There are two disinterested witnesses OR Interest witness is also intestate heir Attestation clause not required but creates rebuttal presumption

Question 40

Formalities for a Holographic Will

Answer 40

Material provisions in testator’s handwriting Signed No witnesses needed

Question 41

Oral Wills

Answer 41

Not valid in CA

Question 42

Devise definition

Answer 42

Gift of real property

Question 43

Bequest and Specific Bequest Definition

Answer 43

Gift of personal property Specific Bequest Gift of a particular property distinct from all other objects in estate

Question 44

Legacy, General Legacy, Demonstrative Legacy definitions

Answer 44

Gift of personal property, general economic benefit General Legacy Gift payable out of estate – usually money Demonstrative Legacy Gift of money payable from designated fund Would be paid from other assets if not enough

Question 45

Residual Gift

Answer 45

Gift of remainder of estate

Question 46

Classification of Property Based on Type of Beneficiary

Answer 46

A private gift is a gift to a noncharitable beneficiary. A charitable gift is a gift for a charitable beneficiary

Question 47

Ademption by Extinction

Answer 47

Specific gift not in estate at death fails Beneficiary does not get substitute gift or monetary substitute

Question 48

Exceptions to Ademption by Extinction

Answer 48

Balance of purchase price unpaid goes to beneficiary Proceeds from: condemnation, insurance, foreclosure Proceeds from sale by guardian or conservator

Question 49

Specific v General Gifts of Stock Ademption

Answer 49

Gift is specific and subject to ademption if words of possession or identification used Ie. “MY shares of acme stock” not just “100 shares of acme stock” Changes in form won't defeat transfer

Question 50

Ademption by Satisfaction

Answer 50

Gift in will given to beneficiary between execution and death Proven by: Language in will Instrument of gift or contemporaneous writing Donee acknowledges in writing any time

Question 51

No Exoneration of Liens from Will Property

Answer 51

In California, liens on specifically devised property are not exonerated (paid off with estate funds) unless the will so directs

Question 52

Abatement definition

Answer 52

Abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises.

Question 53

Abatement order of abatement default

Answer 53

The testator may set out an order of abatement in the will. If there are no contrary provisions in the will, estates abate in the following order: Intestate property Residuary property General gifts to persons other than the testator’s relatives General gifts to the testator’s relatives Specific gifts to persons other than the testator’s relatives Specific gifts to the testator’s relatives Within each class, gifts abate pro rata.

Question 54

Disclaimers for a Will

Answer 54

Just as heirs may disclaim, so too can beneficiaries of a will. If a beneficiary disclaims, the property passes as if the beneficiary predeceased the testator under the terms of the will.

Question 55

Survival Requirement for Will

Answer 55

While intestate heirs must survive decedent by 120 hours, Will beneficiaries must survive testator by any amount of time

Question 56

Lapsed Gifts Definition

Answer 56

A gift lapses (that is, fails) if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator (because, for example, the beneficiary disclaimed).

Question 57

Distribution of Lapsed Gifts Generally

Answer 57

Express terms of will Saved by anti-lapse statute Via residuary clause Via intestacy

Question 58

Anti-Lapse Statute

Answer 58

The California anti-lapse statute substitutes the descendants of the predeceased beneficiary under certain circumstances. The anti-lapse statute operates to save the gift if the predeceasing beneficiary: Testator’s kindred OR Kindred of surviving, deceased, or former spouse Applies to class gifts too

Question 59

Lapse in Residuary Gift

Answer 59

At common law, if a will devised the residuary estate to two or more beneficiaries and one of them predeceased the testator (and the anti-lapse statute did not apply), the deceased beneficiary’s share passed by intestacy.

Question 60

Who raises interpretation and construction issues?

Answer 60

Personal representative who wants to do the right thing and thus avoid liability for improper administration Beneficiaries (or heirs) who would take under various interpretations

Question 61

Constructive Maxims of Will Interpretation and Construction

Answer 61

Existence of will indicates intent not to die intestate If conflicting provisions, last in time prevails Will construed as a whole Attempt to give effect to all words used

Question 62

Patent or Obvious Ambiguity in Will

Answer 62

Obvious on its face that something doesn’t work Extrinsic evidence permitted to resolve latent or patent ambiguity Can’t fill in blanks though

Question 63

Latent Ambiguity in Will

Answer 63

Extrinsic evidence permitted to resolve

Question 64

No Apparent Ambiguity

Answer 64

CA Modern rule: Can use extrinsic evidence to resolve ambiguity

Question 65

Incorporation by Reference

Answer 65

Testator incorporates extraneous document by referring to it in will Requirements: Intent to incorporate extraneous document Writing in existence at execution Identification of writing in will

Question 66

Fact/Act of Independent Significance inside Will

Answer 66

Action outside of will with purpose other than disposing of property at death Ie. “I leave my car I own at my death to my son”

Question 67

Separate Writing to Dispose of Tangible Personal Property

Answer 67

A testator may dispose of items of tangible personal property in a writing that does not comply with the requirements for incorporation by reference if: An unrevoked will refers to the writing The document is dated The document is either handwritten or signed by the testator; and The document describes the items and the recipients with reasonable certainty The property must be tangible personal property other than cash or business property. The total value of the tangible personal property identified and disposed of in the writing may not exceed $25,000, nor may a single item exceed $5,000 in value.

Question 68

Conditional Wills

Answer 68

Will that operates only on a condition or without condition Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional. Parol evidence may be admitted to show that the instrument was not meant to have any effect at all

Question 69

Codicil

Answer 69

A codicil modifies a previously executed will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, a codicil acts to republish the will except for the parts of the will that are inconsistent with the codicil. The will and codicil are treated as one instrument speaking from the date of the last codicil. This date may be important, for example, for purposes of determining whether a child was born after the will’s execution for purposes of the omitted child statute A valid codicil can bootstrap an otherwise invalid will

Question 70

Pour Over Will

Answer 70

A pour-over provision is a provision in a will making a gift to an inter vivos trust. Effect: Property goes to trust as amended at testator’s death Trust must be in writing no later than 60 days after will’s execution Gift fails if trust revoked prior to testator’s death

Question 71

Integration

Answer 71

All wills and codicils should have the date of execution External If the testator executed more than one will or codicil, they need to be properly integrated so that the court knows which will is the last will or which provisions of a later will or codicil revokes provisions of a prior will or codicil. Although not legally a will requirement, all wills should contain the date of execution to assist in external integration. Internal A will proponent must be able to show that the pages present at time of execution are those present at time of probate. Physical attachment or internal coherence of pages raise a presumption that the pages were present and intended to be part of the will when it was executed. Proof of integration can also be provided by testimony or other extrinsic evidence.

Question 72

Joint Will

Answer 72

Single document will for two or more people

Question 73

Reciprocal Wills

Answer 73

Will of two people with parallel provisions

Question 74

Contractual Will

Answer 74

Will executed or not revoked pursuant to agreement supported by consideration Proven by: Material provisions in will or other instrument Reference to contract in will or other instruments plus extrinsic evidence of contents Revocable if: Both parties are alive Breach: Breach after death remedies with constructive trust The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Question 75

Revocation of Wills

Answer 75

A person with testamentary capacity may revoke their will at any time prior to death. A will may be revoked by operation of law, by subsequent instrument, or by physical act. Even a will that the testator has contractually agreed not to revoke may be revoked, but the beneficiaries may then have a breach of contract action against the estate.

Question 76

Omitted Spouse

Answer 76

Accidentally omitted spouse keeps ½ of community property plus takes intestate share of remaining community property But separate property limited to ½ Exceptions: Intentional omission Provided for with non-probate transfers Evidence they’re in lieu of benefits of will Waived right to omitted share Spouse was care custodian

Question 77

Divorce

Answer 77

Revokes all provisions in favor of former spouse Unless: Will expressly provides otherwise Same spouses remarry Treats ex-spouse as predeceased

Question 78

Pretermitted/Omitted Child

Answer 78

Are a: Child born or adopted after will executed Unknown child, or Child mistakenly believed deceased Exceptions Intentional exclusion Provided for outside the will All or most of estate left to child’s parent Omitted childs share: Intestate share of probate estate plus trusts that became irrevocable at death Beneficiaries share burden pro rata

Question 79

Beneficiary Murders Testator—Slayers

Answer 79

A person who feloniously and intentionally kills the decedent is not entitled to: any property or benefit under the will, intestate, etc

Question 80

Revocation of Will by Physical Act

Answer 80

Must have: Intent to revoke Mental capacity Physical act Ie. burning, tearing, obliteration, cancellation, defacing signature

Question 81

Proxy Revocations

Answer 81

Valid if done: At testator’s request and In testator’s presence

Question 82

Partial Revocation by Physical Act

Answer 82

Revoking individual gifts permitted Cannot increase gifts Unless incidentally

Question 83

Duplicate Originals

Answer 83

Wills should never be executed with duplicate originals. The revocation by physical act of one original acts to revoke all the duplicate originals.

Question 84

Revocation by Subsequent Will

Answer 84

Effective when: Express revocation in subsequent will Inconsistent provisions in latest will

Question 85

Presumptions of Revocation in Found Wills

Answer 85

Will found in normal place and without suspicious circumstances is presumed not to be revoked Missing or damaged original raises rebuttable presumption of revocation

Question 86

Revival of Revoked Wills

Answer 86

Ie. Execute Will 1, Execute Will 2, Revoke Will 2, does Will 1 apply? California follows the intent approach. The court will look at extrinsic evidence to determine what the testator intended.

Question 87

Express Conditional Revocation

Answer 87

The testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.

Question 88

Implied Conditional Revocation or Dependent Relative Revocation

Answer 88

The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. To determine whether DRR applies, we ask the following questions: Was the revocation of Will 1 impliedly conditioned on the validity of Will 2? Would Testator have preferred Will 1 over intestacy? Many changes in a will can indicate they’d prefer intestacy

Question 89

Standing to contest a will, Burden of Proof, and Timing

Answer 89

Standing Any potential intestate heir Any beneficiary of prior wills Burden of proof On the contestant, as will already made it through probate Timing in CA Must be brought within 120 days after will admitted to probate

Question 90

Grounds for Contesting Will

Answer 90

Grounds for challenge are: (1) defective execution, (2) revocation, (3) lack of testamentary capacity, (4) lack of testamentary intent, (5) undue influence or duress, (6) fraud, and (7) mistake. A will may be contested for the failure to meet the elements of a valid will. This includes a lack of legal capacity, testamentary capacity, testamentary intent, or necessary formalities.

Question 91

Insane Delusion Revocation

Answer 91

"Insane delusion” is a distinct form of incapacity. A person with testamentary capacity may have an “insane delusion” that can invalidate an entire will or a portion thereof. An insane delusion is a belief in facts that do not exist and that no rational person would believe existed. A will can be set aside for an insane delusion only if there is a connection (nexus) between the insane delusion and the property disposition.

Question 92

Undue Influence Elements

Answer 92

Has to actually be undue (ie, can badger someone to make a will) Elements to prove: Influence actually exerted Influence overpowered testator’s mind and will reflects desires of influence Testator would not have made will with these terms but for influence Often no direct evidence, need circumstantial usually

Question 93

Rebuttable Presumptions of undue influence

Answer 93

Confidential relationship (e.g. attorney client) Not marriage Assisting testator in procuring will Gift to person who transcribed will and was in fiduciary relationship with testator Gift to certain rare custodians

Question 94

Conclusive Presumptions of undue influence

Answer 94

Gift to Attorney who drafted will Drafter’s relatives Person living with drafter

Question 95

Duress

Answer 95

Like undue influence but more physical and violent

Question 96

Fraud Elements

Answer 96

False representation Knowledge of falsity Testator reasonably believed statement Testator would not have executed this will but for misrepresentation (causation)

Question 97

Fraud in the factum

Answer 97

Testator deceived as to identity or contents of instrument

Question 98

Fraud in the inducement

Answer 98

Testator knows will and contents but based on deception as to extrinsic fact

Question 99

Mistake, Mistake in Execution, and Mistake in Inducement

Answer 99

Error without any malicious intent Mistake in execution Error regarding identity or contents of instrument Generally can invalidate otherwise proper will Mistake in inducement Will based on mistake as to extrinsic fact Generally no remedy, mistake won’t be fixed

Question 100

Remedies for Wrongful Conduct

Answer 100

Usually, the evil activity permeates the entire will, and so the entire will is denied probate. However, if only certain provisions are tainted, those can be set aside and the rest of the will probated. Constructive Trust If the evil activity prevents a person from executing a will, the court might impose a constructive trust on the property in favor of the intended beneficiary

Question 101

In Terrorem Clause

Answer 101

Beneficiary who contests will forfeits gift in will In California, a court will enforce the provision unless the contestant had probable cause to file the contest. A no-contest clause is strictly construed and may be applied only in the following contests: A direct contest brought without probable cause A claim that the transferor does not own the property and thus has no right to transfer it A creditor’s claim

Question 102

Exam Approach

Answer 102

Handle non probate assets Determine whether decedent died testate or intestate If intestate, go through distribution of property, looking for special individuals If testate, determine validity of will If valid, look for changes in property or people since will execution, construction issues, and will contents