Wills Flashcards
What is a will?
an instrument of conveyance that takes effect only upon the death of the testator
Will validity requirements
- Legal capacity
- Testamentary capacity
- Testamentary intent
- Formalities
What is required for legal capacity to make a will?
18 or older
What is required for testamentary capacity to make a will?
the testator have the ability to understand:
1. The nature of the act
2. The nature and extent of their property
3. The persons who are the natural objects of their bounty
4. at the time the will is executed
What is required for testamentary intent to make a will?
the present intent to make a particular instrument their will
What are California will formalities?
For an attested will:
1. writing
2. signed by the testator
3. joint presence of at least two witnesses
4. The two witnesses must sign the will during the testator’s lifetime; and
5. The witnesses must understand that the instrument being witnessed is the testator’s will
For a holographic will:
signature and material provisions of the will are in the testator’s own handwriting
For a statutory will:
1. complete the blanks and sign;
2. each witness must observe the testator’s signing; and
3. sign in the presence of the testator.
What is a holographic will?
a will in the testator’s handwriting
What are will formalities?
For an attested will:
1. writing
2. signed by the testator
3. joint presence of at least two witnesses
4. The two witnesses must sign the will during the testator’s lifetime; and
5. The witnesses must understand that the instrument being witnessed is the testator’s will
For a holographic will:
signature and
material provisions of the will are in the testator’s own handwriting
What are will formalities?
For an attested will:
1. writing
2. signed by the testator
3. joint presence of at least two witnesses
4. The two witnesses must sign the will during the testator’s lifetime; and
5. The witnesses must understand that the instrument being witnessed is the testator’s will
For a holographic will:
signature and material provisions of the will are in the testator’s own handwriting
What is a holographic will?
a will in the testator’s handwriting
Does california recognize oral wills?
No
Methods to attack a prima facie will
-insane delusion
-duress
-fraud
-mistake
Methods to attach a prima facie will
-insane delusion
-undue influence
-fraud
-mistake
Insane delusion elements
- a belief in facts that do not exist
- and that no rational person would believe existed
- the testator would not have made the disposition in question but for the insane delusion
What is a pour-over gift?
a provision in a will making a gift to an inter vivos trust
What is necessary for an ex post pour-over amendment?
Under the UTATA, which California has adopted
1. the trust is identified in the testator’s will
2. its terms are set forth in a written instrument (other than a will)
3. executed before, concurrently with, or within 60 days after the execution of the testator’s will
Undue influence elements
- influence exerted
- effect of overpowering; and
- but for cause of will’s production
Duress elements
- undue influence
Fraud elements
- False representation
- Knowledge
- The testator reasonably believed
- but for cause
Two types of undue influence presumptions
-Common law
-Statutory
Common law undue influence presumptions
- confidential relationship
- beneficiary actively participated
- The beneficiary unduly benefits from the instrument; that is, provisions of the will appear to be unnatural and favor the person who allegedly exercised the undue influence
Statutory undue influence presumptions
- drafter
- fiduciary relationship
- care custodian
What papers are part of the will document?
- all papers or writings that were actually present at the time of execution
- and that the testator intended to constitute her will
What is a codicil?
a later testamentary instrument that amends, alters, or modifies the will in some fashion
What are the codicil validity requirements
same as a will
What is necessary to incorporate a document by reference into a will?
- intent
- in existence;
- sufficiently described so that its identification is clear; and
- satisfactory proof that the proffered document is the document described in the will
What papers are part of the will?
- all papers or writings that were actually present at the time of execution
- that the testator intended to constitute her will
When can a will incorporate an act?
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether the acts and events occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.
Choice of law for will formalities
Must comply with law of:
-state where you seek to have will admitted into probate
-state where will was executed
-state of testator’s domicile at time of execution
Undue influence elements
- influence exerted
- effect of overpowering; and
- but for cause of will’s production
If T executes will, then executes a codicil, then revokes his codicil
rebuttable presumption that T intended to revoke only codicil
Insane delusion elements
- a belief in facts that do not exist
- and that no rational person would believe existed
- the testator would not have made the disposition in question but for the insane delusion
If T executes will, then executes a codicil, then revokes will
rebutable presumption that T intended to revoke will AND codicil
What is a pretermitted heir?
Majority: a child who was omitted from the will of a testator
California: same OR a left out spouse/DP
Pretermitted heir prima facie rule
If a testator fails to provide for a child born or adopted after the execution of all of the testator’s testamentary instruments (a will and/or revocable trust), the child is to receive her intestate share of the testator’s property
Pretermitted heir exceptions to prima facie rule
-intentional
-The testator provided for the child by transfer outside of the will or revocable trust
-one or more children AND devised or transferred substantially all of his estate to the other parent of the omitted child.
-later will or codicil + there is only a partial inconsistency + both instruments are admitted to probate = the mention of a child in either will is sufficient to preclude the child from claiming as a pretermitted heir
Will revocation elements
- Testamentary capacity
- Prior to death
- by operation of law, by subsequent instrument, or by physical act
How is will revocation by operation of law accomplished?
- certain circumstances— usually marriage, birth of children, or divorce
- in which it is deemed that testators would not want their wills to stand
- because of the change in circumstances
How is will revocation by subsequent instrument accomplished?
THREE WAYS:
WAY ONE: expressly revoked by a later will or codicil executed with the formalities required for a valid will
WAY TWO: the new will completely disposes of the testator’s property = the old will is completely revoked by inconsistency
WAY THREE: the new will partially disposes of the testator’s property = the old will is revoked only as to the inconsistent parts
Revocation by physical act
- burning, tearing through some material part, canceling (drawing lines through words of the will), obliterating, or destroying
- with simultaneous intent to revoke
Can a will be only partially revoked?
Not by operation of law
Yes by subsequent instrument or physical act
What is required for interlineation to validly modify a will?
- a holographic will
- the other requirements for revocation by physical act, substituting the interlineation for the destructive act
When is a revoked will revived by revocation of the latter will/codicil?
When such revival was the testator’s intent at the time of the second revocation
What are the types of gifts within a will?
-specific
-general
-demonstrative
-residuary
What is a specific gift?
a gift of a particular item of property distinct from all other objects in the testator’s estate at the time of will execution
What is a general gift?
a gift of a general economic benefit (often a dollar amount) payable out of the general assets of the estate without requiring any particular source of payment
What is a demonstrative gift?
a gift of a general amount that is to be paid from a designated source or fund
What is a residuary gift?
the balance of the testator’s property after paying (1) debts, expenses, and taxes; and (2) specific, general, and demonstrative gifts
What is ademption?
the destruction or extinction of a SPECIFIC gift because the bequeathed assets no longer belong to the testator at the time of their death
What is an advancement?
a lifetime irrevocable gift intended by the donor to be prepayment of an inheritance
What is necessary to prove an advancement?
A writing signed either by the donor or donee
What are the types of unworthy heirs?
-slayers
-bad parents
-abusers
-aliens
What is the slayer rule?
If an heir feloniously and intentionally kills the intestate, they can’t inherit
What is the bad parent rule?
A parent is precluded from inheriting from or through a child and is treated as predeceasing the child if:
* The parent did not acknowledge the child
* The parent’s parental rights were terminated and not judicially reestablished; or
* The parent intentionally abandoned the child during the child’s minority for at least seven consecutive years before the child
reached the age of majority, and during that time, the parent did not support or communicate with the child (the failure to support or communicate creates a presumption of the intent to abandon the child)
What is the abuser rule?
An heir who physically or financially abuses or neglects an elder or dependent adult is precluded from inheriting
What is the alien rule?
common law: aliens were denied the right to inherit real property
California and modern majority: a non citizen of the United States is not disqualified from being an heir
Surviving spouse intestate share
-All community property
-All quasi-community property
-separate property split:
1/3, decedent survived by:
-more than one child
-One child and the descendants of one or more deceased children, or
-The descendants of two or more deceased children
1/2
* Only one child
* The descendants of a deceased child, or
* No descendants, but a parent or the descendant of a parent
all
the decedent leaves no surviving descendant, parent, sibling, or descendant of a deceased sibling
Surviving descendants intestate share
Estate - surviving spouse share (if any), then divide equally per generation
Intestate share per grandchild if no surviving spouse, decedent had two children (both dead), one of which had one kid (alive) and one of which had two kids (alive)
The only child takes half, the sibling grandchildren each take a quarter
What must ALWAYS be paid off before will or intestate inheritances get distributed?
debts
Where does the money to pay debts come from?
- intestate property
- residuary gifts
- general gifts to non-relatives
- general gifts to relatives
- specific/demonstrative gifts to non-relatives
- specific/demonstrative gifts to relatives
Intestate where no surviving descendants
- all to surviving spouse
- If no surviving spouse, surviving parents take equal shares
- If no surviving parents, siblings (and their descendants) take equal shares
- If neither surviving siblings nor descendants of siblings, grandparents
- if no surviving grandparents, aunts and uncles (and descendants)
- if neither surviving aunts, uncles, nor descendants thereof, stepchildren (or descendants, again, equally)
- if neither surviving stepchildren nor descendants thereof, next of kin (or descendants, again equally)
- if neither surviving next of kin nor descendants thereof, parents-in-law (and descendants thereof, again equally)
- if no surviving parents-in-law or descendants thereof, the state gets it
What is the effect of a trust on inheritance.
If a trust is revocable up to the settlor’s time of death, anything in it at the time of death is considered inheritance. BUT, to the extent the trust provides for those entitled to inherit, that’s how they inherit.
If a trust is irrevocable, or becomes irrevocable prior to the settlor’s death, it is not part of the inheritance.
What are the will revival methods?
-reexecution
-republication
What is necessary for will reexecution?
1.the testator acknowledges her signature or the will
2. witnesses attest
What is necessary for will republication
- a valid codicil
- the will was not previously revoked through a physical act of full destruction
What happens to a failed gift?
It becomes part of the residuary.
What happens to residuary if not specifically stated in the will?
It passes through intestacy.
