Wills Flashcards
Intestacy definition
No will, or will disposes of less than all of decedent’s property
Which Law Applies in intestacy
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
Spouses share of CP
Decedent’s ½ of the community property
Ends up owning all community property
Spouses share of quasi CP
Property not in CA that would be community property
Ends up owning all quasi cp
Spouse gets ⅓ of Property if survived by
More than one child
One child and the descendants of one or more deceased children
Descendants of two or more predeceased children
Spouse gets 1/2 of Property if survived by
One child
Descendents of one predeceased child
No descendants but a parent or descendant of parent
Spouse gets all of Property if survived by
No surviving descendants
No surviving parents
No surviving descendants of parents
Share of Descendants if All Descendants of Same Degree of Relationship
Determined using per capita (or equal) with representation
Share of Descendants if Descendants of Unequal Degrees of Relationship
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
Share if no descendants
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
Special Rules for Property Inherited from a Predeceased spouse
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
Treatment of Adopted Child
Inherits from and through adoptive parents
Does not inherit from biological parent unless adopted by stepparent
Treatment of Step-Children and Foster Children
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
Treatment of Nonmarital Children with Relationship to Natural Mother
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
Treatment of Nonmarital Children with Relationship to Other Parent
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
Relatives of Half Blood
Half-blooded collateral heirs inherit full shares no differently than full-blooded heirs.
Treatment of Posthumous Children
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
Treatment of Heir Killing Intestate
Cannot recover if feloniously and intentionally kills decedent
Treatment of Bad Parents
No recovery if any:
Didn’t acknowledge child
Parental rights terminated
Abandoned child for at least 7 consecutive years
Treatment of Heir who neglects or abuses elderly or dependent intestate
No inheritance
Treatment of Aliens
In California, as in most states, a non-citizen of the United States is not disqualified from being an heir
Advancement
Irrevocable lifetime gift intended as prepayment of inheritance
A writing signed either by the donor or donee is needed to prove the
advancement.
Effect of Advancement
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.
Survival
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.
Disclaimers
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
Requirements of Disclaimer
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.
Effect of Disclaimer
Treats person as if they were predeceased
Negative wills
are ineffective.
Harmless Error Doctrine
“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.
Applicable Law for Wills Depending on Property Type
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
Savings Statute
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.
Requirements of a Valid Will
Legal capacity
Testamentary capacity
Testamentary intent
Formalities
Legal Capacity Will Requirement
18 years old or older
Testamentary Capacity
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
Testamentary Intent Will Requirement
Testator intends this document to be the will
Formalities Required for a Normal Will
Writing
Signature
Attestation
Signature on a will
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
Attestation for a will
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
Interested Attestation Witness’ Take Nothing Unless
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
Formalities for a Holographic Will
Material provisions in testator’s handwriting
Signed
No witnesses needed
