Wills

Question 1

What’s a codicil?

Answer 1

a supplement that amends/revokes a will in whole or in part

Question 2

What’s intestate succession?

Answer 2

default estate plan when the decedent dies without a will

Question 3

What are heirs?

Answer 3

lndividuals entitled to receive property by intestate succession

Question 4

What is an issue?

Answer 4

decedent’s lineal line (kids, grandkids)

Question 5

Who qualifies as a spouse?

Answer 5

(1) legally married partner or (2) registered domestic partner

Question 6

Who gets the decedent’s SP when there are no descendants who survive the spouse?

Answer 6

the surviving spouse gets the entire SP estate

Question 7

How much of the decedent’s SP does the spouse get when there is one lineal descendant or parent/issue of parent?

Answer 7

surviving spouse gets 1/2 of the decedent’s SP

Question 8

How much of the decedent’s SP does spouse get when there is more than one lineal descendant?

Answer 8

surviving spouse gets 1/3 of decedent’s SP

Question 9

Who gets property if no heirs?

Answer 9

the property escheats to the state

Question 10

Requirements for Valid Will

Answer 10

(1) signed writing, (2) two witnesses, and (3) testamentary intent.

CA does not permit oral wills

Question 11

Capacity to Make Will

Answer 11

(1) at least 18 and (2) of sound mind

Question 12

Modern Approach to Witnesses of a Will

Answer 12

(1) must sign within the lifetime of testator
(2) have a conscious presence of the act that is being performed – know what is being signed

Question 13

Interested Witness

Answer 13

not competent to witness will

unless there are 2 disinterested witnesses, there’s a rebuttable presumption that interested witness exerted undue influence

if rebutted, interested witness can get her share; if not rebutted, only gets intestate succession share

Question 14

Holographic Wills

Answer 14

(1) informal, handwritten will, (2)
does not need to be witnessed, and (3) must be signed.

Question 15

Types of non-probate transfers

Answer 15

(1) joint tenancy, (2) revocable trust, (3) pour-over will, (4) payable on death clauses, (5) deed

Question 16

3 Ways to Revoke a Will

Answer 16

(1) subsequent instrument, (2) physical act, or (3) operation of law (divorce)

Question 17

Express revocation

Answer 17

later writing that expressly revokes prior will

Question 18

Revocation by Physical Act

Answer 18

intentional physical act of destruction such as tearing, burning, or crossing out document

Question 19

Lost wills

Answer 19

rebuttable presumption that testator revoked will by physical act

burden on proponent to show will exists by clear and convincing evidence

Question 20

Revocation by Operation of Law

Answer 20

divorce or dissolution of registered domestic partnership will revoke all provisions in favor of former spouse/partner unless testator wanted provisions of will to survive

Note: separation without divorce doesn’t affect rights of surviving spouse

Question 21

Revocation of Codicils & Wills

Answer 21

revoking a will revokes the codicil attached to it
BUT
revoking a codicil doesn’t revoke the underlying will

Question 22

Dependent Relative Revocation (DRR)

Answer 22

A testator who revokes a will under a mistaken belief has not effectively revoked the will

Question 23

Plain Meaning Doctrine

Answer 23

court gives words in will plain meaning and will not look outside 4 corners of document for extrinsic evidence

Question 24

Incorporation by Reference

Answer 24

a will may incorporate extrinsic document that is not testamentary so long as testator (1) intends the doc to be incorporated and (2) the document is described in the will with sufficient certainty

Question 25

Anti-Lapse Statute

Answer 25

prevents certain gifts from lapsing -- (1) lapsed gift had to be for someone **related** to the testator (not a friend) and (2) the predeceased relative is survived by an issue

Question 26

Ademption by Extinction

Answer 26

a will makes a specific devise of property but the property is no longer part of the estate CA: look at testator's intent at time deposed of property

Question 27

Ademption by Extinction

Answer 27

testator transfers a gift in their will while alive for gift to be satisfied: (1) instrument provides for deduction of lifetime gift, (2) testator **expressed intent** to adeem in contemporaneous writing signed by them, (3) **transferee acknowledged in writing that gift satisfies** transfer, **or** (4) property given is the same as specific gift

Question 28

Omitted Spouse/Partner

Answer 28

after a will is executed and a marriage or partnership occurs gets an intestate share that is capped at 1/2 of decedent's SP

Question 29

Gift Advancement to Child

Answer 29

a gift is an advancement only if: (1) decedent declared in contemporaneous writing that it was an advancement or (2) decedent's or heir's writing indicates gift should be taken into account when dividing decedent's estate **Hotchpot Analysis**: (1) Add value of advancement to intestate estate, (2) divide resulting estate by number children, and (3) deduct the child's advancement from their share

Question 30

Anti-Slayer Rule

Answer 30

beneficiary who kills decedent is barred from taking under decedent's will

Question 31

Unintentional disinheritance of Child

Answer 31

omitted child gets intestate share

Question 32

Disclaimer of Gift | Requirement and when must it be disclaimed

Answer 32

(1) writing, signed, and filed by court or declared to person distributing estate, and (2) identify decedent, describe interest being disclaimed, and define extent of disclaimer. must disclaim within 9 months of testator's death

Question 33

Contesting Will for Insane Delusion

Answer 33

false belief to which testator adheres despite all reason and evidence to contrary (1) measure the delusion against that of rational person in testator's position, and (2) the contestant must show that insane delusion was but-for cause of testamentary disposition

Question 34

Contesting Testator's Capacity

Answer 34

contestant has burden to prove testator **lacked requisite mental capacity** at time of execution and had ability to know why, what, who, how

Question 35

Undue Influence- what to look at?

Answer 35

contestant alleges third party controlled testator's decision-making process look at (1) victim's **vulnerability**, (2) third-party's **apparent authority**, (3) what they were **saying/doing**, and (4) **equity of result**

Question 36

Who does the Presumption of Undue Influence apply to?

Answer 36

(1) someone with a confidential relationship to testator (attorney, doctor), (2) actively participated in making will, and (3) gift is unnatural. must show clear & convincing evidence that no undue influence or gift will be treated as if beneficiary predeceased testator

Question 37

Contesting Will due to Fraud by Beneficiary | What must the contestant show and prove?

Answer 37

contestant has burden to show that beneficiary engaged in **unlawful misrepresentation** at time of execution must prove that beneficiary made representation with (1) **intent to deceive** testator, **and** with (2) **purpose of influencing** testamentary disposition

Question 38

Fraud in Inducement vs. Fraud in Execution

Answer 38

Inducement -- misrepresentation caused testator to make a different will than testator would have otherwise execution -- tricked person into signing something they wouldn't agree to

Question 39

Jurisdiction for Probate

Answer 39

county in which decedent was domiciled when they died if decedent owns real property elsewhere, ancillary jx applies to that property

Question 40

Abatement

Answer 40

when estate doesn't have enough assets to satisfy gifts, they gifts will be reduced in this order: (1) intestate property, (2) property in a residuary gift, (3) general bequests to people other than relatives, (4) general bequests to relatives, (5) specific bequests to people other than relatives, (6) specific bequests to relatives

Question 41

Personal Representative

Answer 41

person who acts on behalf of estate during probate process appointed by court: estate administrator appointed by will: estate executor entitled to reasonable compensation

Question 42

Will Contests Timing

Answer 42

must challenge probate within 120 days or claim is barred

Question 43

Duties of Personal Representative

Answer 43

(1) inventory, appraise, and manage estate, (2) locate and contact interested parties, including creditors, (3) satisfy debts, (4) distribute assets, (5) close estate duties of loyalty and care -- should not self-deal or do business with estate

Question 44

Define Undue Influence

Answer 44

**Excessive persuasion** that causes another person to act or refrain from acting by **overcoming that person's free will**

Question 45

What happens if a will is found to have been the product of undue influence?

Answer 45

The will is invalidated in whole or part. The undue influencer won't get more than what they would have gotten in intestate

Question 46

Undue Influence: Vulnerability of the victim

Answer 46

Incapacity, illness, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where influencer should have known of the vulnerability

Question 47

Undue Influence: Influencer's Authority

Answer 47

Evidence of apparent authority includes ones status as a fiduciary, family member, care provider, health care or legal professional

Question 48

Undue influence: Influencer's Conduct

Answer 48

Evidence of actions or tactics used to exert undue influence include: 1. Control over necessaries of life, medication, victim's interactions with other, access to information, or sleep 2. Use of affection, intimindation or coercion **AND** 3. Initiation of charges in personal or property rights and use of haste or secrecy in effecting those change

Question 49

Undue Influence: Equity of the Result

Answer 49

Courts look at economic consequences to the victim, any divergence from prior intent, and appropriateness of the change in light of the nature of the relationship

Question 50

Traditional Approach to Undue Influence (add for extra points if you have time)

Answer 50

1. Susceptibility 2. Motive 3. Opportunity 4. Causation

Question 51

Omitted Child

Answer 51

If a decedent fails to provide for a child born or adopted after the execution of the will, then the omitted child **can receive a share equal to that which the child would have received had the decedent died intestate. **

Question 52

Common Law: Lapse

Answer 52

if a beneficiary died before the testator, then the gift failed and went to the residue unless the will provided for an alternate disposition. Absent a residuary clause, the gift will pass through intestacy.

Question 53

Intestate Succession for SP

Answer 53

The surviving spouse takes all community property, and 1/3 of the decedent’s separate property if (1) the decedent is survived by more than one lineal descendant (2) 1/2 of the decedent’s separate property if the decedent is survived by one lineal descendant or by a parent or issue of a parent, or (3) all of the decedent’s separate property if the decedent is not survived by any lineal descendants, parents, or issue of parents.

Question 54

Does a CA will have to be dated?

Answer 54

No

Question 55

Non-dated holographic will presumption

Answer 55

rebuttable presumption that a non-dated holographic will predates the other will signed by testator

Question 56

Ademption by Extinction

Answer 56

The doctrine of ademption by extinction applies only to specific bequests. If the subject matter of a specific bequest is no longer in the testator's estate upon death, then the beneficiary takes nothing. **in CA:** intent at the time she disposed of the subject matter of the bequest is considered, and the courts will attempt to carry out the testator’s intent Exception: if there is a **change in form** of the gift and evidence that proceeds from sale of original gift were used to acquire new asset, then the court will likely find there is no ademption by extinction unless the testator intended for the original gift to fail

Question 57

Specific Gift

Answer 57

transfer of specifically identifiable property

Question 58

General Gift

Answer 58

satisfied from the general assets