Wills Flashcards
What is intestate succession?
It is used when there is no will or the will doesn’t dispose of all of the decedent’s property
Passes under mechanical statute rules
What are will substitutes? IE: non-probate property?
This is STEP 1: take these out first
This is property that passes outside the intestacy/will process
Includes:
(1) life insurance
(2) JT or TIE
(3) inter-vivos trusts/gifts
(4) gift in view of impending death [reminder that this is revocable]
(5) contracts
Under intestate succession, what is the surviving spouse’s share?
STEP 2: after taking out non-probate property
Surviving spouse gets 1/2 of all the CP/QCP and keeps the 1/2 they already have = so they have it all!
*also applies to domestic partners
SP + Surviving Spouse [intestate]
Takes 1/3 of SP if the decedent is survived by:
-more than one child
-one child and the descendant of one or more deceased ids
-the descendants of two or more deceased children
Takes 1/2 of SP if the decedent is survived by:
-one only child
-the descendants of a deceased child, or
-no descendants but a parent or the descendant of a parent
Takes ALL of SP if:
-no surviving descendants, parent, sibling, or descendant of a deceased sibling
What do the rest of the descendants get?
everything that does not go to the surviving spouse
How is property distributed to the descendants?
All descendants have the same degree of relationship [ex: all children, or all grand kids]: each one receives a per-capita share (usually one share)
Descendants with unequal degrees of relationship:
property passes per capita with right of representation–in this case: there will be least one descendant who dies before decedent and one who survives
Distribution Rules:
(1) divide the property into equal shares a the first generation with at least on surviving member
(2) share created for deceased member of the first gen passes in the same manner to their decedents
What happens if there are no descendants?
All property not going to surviving partners goes like this:
(1) Parents: ½ each (or all to surviving parent)
(2) No parentsdescendants of parents (sister and brother + descendants) in per capita
(3) Grandparents + their descendants (aunts, uncles, cousins) in per capita
(4) Descendants of pre-deceased spouse (step-kids) in per capita
(5) Next of kin–more distance relatives if no one else is around
(6) Parents of predeceased spouse or their descendants (mother-in-law)
(7) Escheat to state
What is the special rule for property inherited from a pre-deceased spouse?
If the surviving spouse dies without descendants–the following property that was received from previously deceased spouse will pass to the previously deceased spouses heirs inside of the surviving spouses heirs:
(1) Real property–unless deceased spouse died at least 15 years before
(2) personal property worth over 10,000 unless the deceased spouse died at least 5 years before
How does it work with adopted kids? [intestate]
Works the same as any other child of the parents. No difference
How does it work with biological parents of adopted children? [intestate]
generally adopted kids do not inherit from their biological parent or relatives unless the adoption is by a step-parent
Vice versa too–bio parents do not inherit from adopted kid unless by a step-parent
How does it work with step-children + foster children? [intestate]
Will be treated as adopted children if:
(1) relationship began when child was a minor and continued throughout their joint lives AND
(2) clear and convincing evidence that shows that the stepparent or foster parent was precluded from adoption because of some legal barrier
What is adoption by estoppel/equitable adoption? How does it work with intestate?
If conduct of a parent makes it appear as if they had adopted a child even though a formal adoption never happened then the court may treat the child as an adopted child under certain circumstances
How does non-marital children/mom work with intestate?
Very easy to inherit from Mom
Treated the same as a martial kid as long is there is proof of mom giving birth
ALSO: woman who contracts with a surrogate to carry her egg with sperm is also considered the natural ma
How does non-marital children/non-bio parent work with intestate?
Parent-child relationship is established (with inheritance rights) if:
(1) Parents were married when the child was born or within 300 days post-marriage
(2) Parents tried to get married before the birth and child was born then or within 300 days.
(3) Parents tried to get married after the birth + parent is named on the birth certificate or promises to pay child support (or ordered to)
(4) Parent received the kid in their home and held them out as theirs
(5) Court judgement of parentage
a. If brought post-death of in question parent, then must be shown by clear and convince evidence (often DNA)
same analysis for non-birthing domestic partner
Re intestate succession what happens if a relative is conceived prior to the intestate’s death but born after?
Receives the regular share they would normally get
What happens with a child conceived after the intestate’s death?
They will inherit as if born during their lifetime if:
(1) Intestate authorized in a signed and dated writing the use of their genetic material for posthumous conception and said who should be using it
(2) Person designated gave written notice about the impending birth within 4 months of the decedent’s death certificate
(3) The kid was conceived and in utero within two years of the issuance of death certificate
What happens if a heir kills the intestate?
Get nothing
Deemed as if you pre-deceased
When are parents not allowed to inherit from or through their child
If:
(1) Did not acknowledge the kid
(2) Parental rights were terminated
(3) Intentionally abandoned the kid during the child’s minority for at least 7 consecutive years and did not support/communicate during that time
treated as if pre-deceased
What happens if an heir abuses or neglects elderly/dependent adults?
Cannot inherit
Deemed as pre-deceased
Can non-citizens inherit intestate?
At CL most non-citizens could not inherit
CA: not the case
Non-Citizens are fully qualified to be an heir
What is an advancement?
An irrevocable gift intended by donor as a prepayment of inheritance
Proof: need a writing signed by the donor or donee
Effect: when sharing in the estate post-death–the advancement must be accounted for
* Compute shares as if everyone was normal
* Then heir has their share reduced by amount in the advancement
NOTE: if they are in the negative cause advancement was more than sharedon’t need to give back money
How long must an heir survive the itnestate?
By 120 hours
This does not apply if the result is escheat to the state
What is disclaiming in the context of an inheritence?
Cannot be forced to accept an inheritance or gift via a will
May disclaim interest
Reasons:
(1) Burdensome
(2) Tax
(3) Avoid creditors
Requirements: Disclaimer must be
(1) Written
(2) Signed
(3) Identify decedent
(4) Describe interest being disclaimed
(5) Notarized
(6) Filed within a reasonable time [9 months post-death]
NOTE: if you accept profits (etc.) from propertycannot disclaim!
NOTE: if you accept profits (etc.) from propertycannot disclaim!
ALSO: disclaiming is irrevocable
Effect of Disclaimer: interest passes as though the disclaiming party pre-deceased the decedent
can also disclaim as the beneficiary of a will
What’s a negative will?
So and So cannot have X
Ineffective in CA!
When does a will go into effect?
At testator’s death
At that point, the will is probated and determined to be valid
What is a savings statute?
Will executed elsewhere is valid if it complies with:
(1) CA law
(2) the law of the state where executed OR
(3) the law of the place where at the time of death the testator was domiciled, had a place of abode or was a national
What is a codicil?
An amendment to a will
Must be executed with same formalities as a will
The will + codicil are treated as one instrument from the date of the LAST codicil [becomes the date of execution]
What are the requirements of a valid will/codicil?
Lets Talk To Fran [at home]!
(1) legal capacity
(2) testamentary capacity
(3) testamentary intent
(4) Formalities
i. attested [witnessed] OR
ii. holographic [entirely in testator’s handwriting]
What is legal capacity for a valid will?
Any person 18+ can make a will
What is testamentary capacity for a valid will?
Requires that the testator have the ability to understand:
(1) the nature of the act
(2) the nature and extent of their property [exact not needed]
(3) their family situation
this is mental capacity and has to exist at time of wills executive
What happens if a testator is old or has mental issues or a drug problem?
May still be OK to execute a will
NOTE: a sane person could lack capacity because under the influence or disoriented for some reason
What is testamentary intent for a valid will?
Must have the present intent to make the instrument their will
What are the formalities of an attested will?
(1) Will must be in writing
(2) Will must be signed by testator (this is a very flexible requirement)
(3) must sign or acknowledge the will or their signature int he joint presence of 2+ witnesses
(4) 2+ witnesses must sign the will during the testators life time (no min age + don’t have to sign in presence of testator)
(5) the witnesses must understand it is a will
What happens if there are witnesses to a will who have an interest in the will?
GENERAL RULE: a will remains valid but the gift to the interested witness is presumed to be procured via duress, menace, fraud, or undue influence
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Interested witness CAN take if:
(1) The interested witness rebuts the presumption OR
(2) There are at least two other disinterested witnesses OR
(3) The interest witness may receive up to their intestate share
What is a holographic will?
Allowed in CA:
(1) Material provisions are in testator’s handwriting
(2) Signed
(3) No witnesses needed
(4) Testamentary capacity + intent are required
NOTE: handwritten changes to this sort of will are given effect–not the case with attested wills
make sure it doesn’t count as a codicil though
How are testamentary gifts classified?
(1) Devise = gift of real property
(2) Bequest = gift of personal property
(3) Legacy = gift of personal property (usually money)
What is a specific devise, bequest or legacy?
It is a gift of a particular item distinct from all other items in the will at execution
A specific bequest of a general nature is not distinguishable until the testator dies–ex: I leave my computer
What is a general bequest or legacy?
It is a gift that is payable out of general assets of estate. No specified source of payment.
Usually $
What is a demonstrative legacy?
It is a money gift payable rom a designated fund
If the source is insufficient it is usually paid out form other assets
What is a residuary Gift?
The remainder of the estate
Balance of the estate after paying:
(1) debts, expenses, and taxes AND
(2) specific, general and demonstrative gifts
What is an ademption by extinction?
When a specific gift is not in the estate [generally only applies to specific devises and bequest]
Generally: if not there than they take nothing
What is a partial ademption?
Ex: large tract of land is devised and then testator conveys part of it during life time
Generally: the beneficiary would take the rest of the land
Are there exceptions to the ademption doctrine
CA statutes specifically protect some bequests from ademption
(1) Balance of purchase price: testator sold the gifted item and the purchaser still owes the testator money–goes to beneficiary
(2) Proceeds of condemnation, insurance, or foreclosure: beneficiary receives any of the proceeds from these action
(3) Proceeds from sale by a guardian or conservator: if a guardian or conservator of an incompetent testator sold the gifted property–beneficiary receives a legacy equal to the proceeds received
Are there any special rules with ademption and corporate securities?
If possible–courts prefer to construe as a general legacy so that that there is no ademption
A gift IS specific and subject to ademption if it uses words of possession or ID
NOTE: Change in form–beneficiary is entitled to security in another entity as a result of a merger, consolidation, reorganization etc
What is ademption by satisfaction?
When the gift in the will is given to the beneficiary between the will execution and the testator’s death
Proof:
(1) Testator provides for satisfaction in the instrument or in a contemporaneous writing
(2) Donee acknowledges in writing that the gift has been satisfied
generally comes up with money more than personal gifts
What is abatement?
It is the process of reducing gifts when the estate assets are not enough to pay all claims against the estate and satisfy the bequests + devisees
Testator could set out order in the will or abatement happens like this:
(1) Intestate property
(2) Residuary property
(3) General gifts to persons other than the testator’s relatives
(4) General gifts to testator’s relatives
(5) Specific gifts to persons other than testator’s relatives
(6) Specific gifts to the testator’s relatives [STRONGEST]
How long must will beneficiaries survive the testator?
ANY period of time
However, if the survival cannot be established by clear and convincing evidence then the beneficiary is deemed to have died first
What is a lapsed gift?
This happens when the beneficiary dies before the testator or if they are being treated as if they did (disclaimed, killed the testator etc).
Under terms of will: if the will states where property should go in the situation must go with that
Gifts saved by anti-lapse statute: if certain conditions met this can work
Via residuary clause: if no terms in will and gifts not saved by anti-lapse statute than goes with the residuary clause
Via intestacy: if no terms in will, no saving via anti-lapse statue AND there is no residuary clausegoes via intestacy
What about lapses + class gifts?
If a will makes a gift to a class–only class members who survive the testator take a share
Unless the will provides otherwise, or the anti-lapse statutes requirements are met
What about if beneficiary is dead when will is executed?
Then gift is void
What are some basic construction maxims of wills
-Fact that the testator left a will—especially with residuary clause—indicates a desire not to die intestate
-If two provisions in a will are contradictorylast one prevails
-Will is construed as a while
-Attempt to give effect to ALL words in the will
What happens if there is ambiguity in the will?
Patent (obvious) ambiguity: exists if the provision is ambiguous on its face–fails to convey any sensible meaning
-extrinsic evidence allowed
-cannot be used to fill in blanks or supply omitted gifts
Latent [hidden] Ambiguity: exists when there is a provision that conveys a sensible meaning on its face but cannot be carried out without further clarification
-extrinsic evidence is permitted
No apparent ambiguity: will provision is clear on its face and can be carried out as written but a beneficiary (or another interested party) thinks testator made a mistake
CA: follows the MODERN rule which allows extrinsic evidence to CREATE an ambiguity where there is not one and allow evidence to resolve issue
What is incorporation by reference with wills?
A testator may incorporate an extraneous doc into will by reference
Effect: incorporated material is treated as if it were written out in the will [even if not will legal perfect]
Elements:
Doc may be incorporated by reference if:
(1) Testator intends to incorporate
(2) Writing is in existence at execution
(3) Identification of writing is clear
What is “an act or fact of independent significance” with a will?
Something outside of the will that has a legal purpose other than disposing of property at death
Ex: specific gifts of a general nature–I leave the car that I own at death to X–court must look outside the will to figure out the bequest
Ex: contents of a safety deposit box may change but you still get the box
-the safety deposit box is a fact of independent significance
What is a separate writing disposing of tangible personal property?
Will may refer to a written statement or list to dispose of tangible personal property not in the will specifically
- Can be done even if the list did not exist when the will was executed
- Can’t be cash or business property
- Total amount of value cannot be more than 25K
- No single item more than 5K
May do so when:
(1) An un-revoked will refers to the writing
(2) Document is dated
(3) Doc is either handwritten or signed by testator
(4) Doc describes the items and recipients with reasonable certainty
What is a conditional will?
Operates only if a certain event occurs or does not occur
There is a presumption AGAINST conditional wills
-a court will find a will general and not conditional if possible
-parole evidence not allowed in to show that it was meant to be conditional
NOTE: sometimes hard to tell the difference between a genuine condition vs a motive to make the will
What is integration with a will?
External: if a testator executed more than one codicil they must be properly integrated
-not a legal requirement–but all wills/codicils should contain the date cause it makes everything must easier
Internal: will proponent must be able to show that the pages at execution are the same pages at probate
-physical attachment or internal coherence raises a presumptions that pages were there
-also can use extrinsic evidence
What is a contractual will?
Will executed or revoked as consideration for a contract
-contract to make, not to make or not to revoke a will is valid and is governed by contract law
Revocation of contract: can be revoked by either party is both still alive
Breach of Contract: can result in a constructive trust imposed by court
What is a revocation of a will?
Generally: a person with testamentary capacity can revoke their will at any time before death
What is revocation by operation of law?
CA has omitted heir statutes to protect surviving spouse or domestic partner from being unintentionally omitted from a will or revocable trust
Spouse/Domestic Partner: if testator marries after executing his will and the spouse is not provided for in the will after death
o The surviving spouse gets their regular share of CP and quasi-CP and also gets an intestate share of the estate
o Separate property limited to ½ share
Exceptions: will not receive an intestate share if
(1) Intentional omission
(2) Provided for with non-probate transfer
(3) Waived right to share
(4) Spouse was care custodian of decedent who was a dependent adult
Divorce: revokes all provisions in favor unless:
(1) Will expressly says otherwise
(2) They get back together
-Property will pass as if they predeceased the decedent
-Final divorce is required
Pretermitted or Omitted Child: child born or adopted after will execution, unknown child or child believed to be dead
Will cannot have:
*Intent to exclude child
*Provided for outside of the will
* Testator mostly left estate to the kids other parent
Share will be taken from:
* First by portion of estate not disposed of if any
* If not enoughwhat is necessary to satisfy the share may be taken from beneficiaries
Beneficiary Murders Testator—Slayers: cannot take anything
What is revocation by physical act performed ON the will?
(1) Intent to revoke
(2) Mental capacity
a. Must be of sound mind
(3) Physical act
a. Burning, tearing, obliterating etc.
revocation by physical act acts to revoke all duplicate originals as well
Proxy Revocation: may tell someone else to destroy the will but must be done by their request and in the their presence
Partial revocation by physical act:
CA–will can be provoked in part by physical act
MEANING: you can cross out X as a gift with a pen and assuming there is enough info to show testator did it–gift is revoked
BUT–increase by physical act is not allowed unless it is the residuary incidentally
What the presumption of non-revocation?
If the will is found in a normal location and there are no suspicious circumstances surrounding it–presumed to be not revoked
What if the will cannot be found at the testator’s death?
It is presumed revoked
If the testator was competent till death and it was last known to be in their possession and nothing can be found OR the will appears to be damages THEN it is presumed that the testator destroyed or damaged will with intent to revoke
IF a will proponent could prove that a will cannot be found due to fire, floods, earthquake, riot, theft etc then they may be able to rebut the presumption
What is a revival of a revoked will?
VERY specific fact pattern:
(1) Testator executes valid will 1
(2) Testator executes valid will 2 which expressly revokes will 1
(3) Testator then validly revokes will 2
What happens to will 1–does it revive?
CA: follows the intent approach–court will look to extrinsic evidence to determined what the testator intended
2nd will revoked by physical act: extrinsic evidence can come in re Will 1
2nd will revoked by later will –Will 3: will 1 not revised except to the extent it appears from terms of will 3 that the testator intended will 1 to take effect–no extrinsic evidence re reviving will 1
What is expressnconditional revocation?
Express conditional revocation
Testator my state in the revoking instrument that a revocation is effective upon the happening or not happening of a named event
What is implied conditional revocation?
Implied conditional revocation or dependent relative revocation
Fact pattern would be:
-Testator validly executes will 1
-Testator validly revokes will 1
- Testator executes will 2 but will 2 is invalid
Doctrine of dependent relative revocation—testator only revoked will 1 because they believed that will 2 would be valid
Thus the revocation fails too–will remains in force
NOTE: Only applied if it comes closer to the intent of the testator than intestatecourt will decide
What procedures for contesting a will?
Only INTERESTED parties
Any potential intestate heir, beneficiaries of prior wills
Burden of proof: is on the will contestant
Timing/Notice: contest must be filed 120 days after will is admitted to probate
-all legatees under the will and intestate heirs are necessary parties and need notice too
What grounds for will contest are there?
(1) Defective execution
(2) Revocation
(3) Lack of testamentary capacity
(4) Lack of testamentary intent
(5) Undue influence or duress
(6) Fraud
(7) Mistake
What is insane delusion?
A distinct form of incapacity
It is a belief in facts that do not exist and that no rational person would have believed existed
Will can be set aside for this ONLY if there is a nexus between the insane delusion and the property disposition
What is undue influence?
(1) Excessive persuasion that causes another to act or refrain from acting
(2) By overcoming that persons free will AND
(3) Results is a property disposition the person would not have otherwise made
Evidence:
Direct: usually not available cause testator dead
Circumstantial: requires showing a bunch of things when combined show undue influence
o Victim’s vulnerability
o The influencers apparent authority
o The actions and tactics of the influence
o The equity of the result
What is the common law rebuttable presumption of undue influence?
CL
Exists when:
(1) a confidential relationship existed between the testator + beneficiary
(2) beneficiary actively participated in some way in procuring or drafting the will
(3) the beneficiary unduly benefits from the instrument
What is conclusive presumption of fraud or undue influence?
Under CA law [by statute] there is a presumption that a donative transfer to certain people is the product of fraud or undue influence:
(1) drafter of the instrument
(1) one in a fiduciary relationship with testator
(3) care custodian
Conclusive with: the person who drafted the will, their relatives, persons living with then and those employed by the drafter–THIS IS NON-REBUTTABLE
What is duress + wills?
Like undue influence but connotes violent conduct
Same analysis
What is fraud + wills?
Any gift from fraud is invalid
Elements:
(1) false representation
(2) knowledge of falsity
(3) testator reasonably believed
(4) testator would not have made will without the representation
Fraud in the Factum [execution]: testator deceived as to identity or contents of the instrument–>did not know it was a will (so no testamentary intent either)
Fraud in the Inducement: Testator knows executing will and whats in it but deceived as to extrinsic fact and makes the will or gift based on that fact
What is mistake + will?
Just a mistake
Mistake in Execution [factum] error about identification and contents of the instrument and no testamentary intent
Mistake in the Inducement: no relief unless mistake on act of will
Will is based on a an extrinsic fact that testator is just mistaken about
GENERALLY: cannot be fixed–but extrinsic evidence is admissible to show that the testator mistakenly believed their child to be dead or didn’t know about the birth of their child
What remedies for wrongful conduct are available?
Deny probate: just deny the whole will going into probate
-If only certain provisions are tainted–they can be set aside and the rest probated
Constructive Trust: if evil activity stops someone from executing a will–court might impose a trust on the property in favor of intended beneficiary
Tortious Interference with an Expectancy: CA recognizes this COA
P must show:
(1) P had a reasonable expectation of receiving an interest from the decedent
(2) But for the interference, the P would have received the interest (causation)
(3) The D had knowledge of Ps expectancy and deliberately interfered with it
(4) The interference was wrongful/tortious (fraud, undue influence etc.) AND
(5) The interference damages the P
Generally–the conduct has to be directed at the decedent
What is a “no contest” clause in a will?
Provision that says that the beneficiary who contests the will forfeits their gift in will
Point is to scare a beneficiary who would get more via intestacy
Basic Rule in CA: a court will enforce unless the contestant has PC to file the contest
