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Wills and Trusts > Wills > Flashcards

Wills Flashcards

1
Q

What’s a codicil?

A

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

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2
Q

What’s intestate succession?

A

default estate plan when the decedent dies without a will

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3
Q

What are heirs?

A

lndividuals entitled to receive property by intestate succession

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4
Q

What is an issue?

A

decedent’s lineal line (kids, grandkids)

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5
Q

Who qualifies as a spouse?

A

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

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6
Q

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

A

the surviving spouse gets the entire SP estate

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7
Q

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

A

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

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8
Q

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

A

surviving spouse gets 1/3 of decedent’s SP

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9
Q

Who gets property if no heirs?

A

the property escheats to the state

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10
Q

Requirements for Valid Will

A

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

CA does not permit oral wills

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11
Q

Capacity to Make Will

A

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

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12
Q

Modern Approach to Witnesses of a Will

A

(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

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13
Q

Interested Witness

A

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

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14
Q

Holographic Wills

A

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

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15
Q

Types of non-probate transfers

A

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

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16
Q

3 Ways to Revoke a Will

A

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

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17
Q

Express revocation

A

later writing that expressly revokes prior will

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18
Q

Revocation by Physical Act

A

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

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19
Q

Lost wills

A

rebuttable presumption that testator revoked will by physical act

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

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20
Q

Revocation by Operation of Law

A

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

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21
Q

Revocation of Codicils & Wills

A

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

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22
Q

Dependent Relative Revocation (DRR)

A

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

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23
Q

Plain Meaning Doctrine

A

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

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24
Q

Incorporation by Reference

A

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

25
Q

Anti-Lapse Statute

A

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

26
Q

Ademption by Extinction

A

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

27
Q

Ademption by Extinction

A

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

28
Q

Omitted Spouse/Partner

A

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

29
Q

Gift Advancement to Child

A

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

30
Q

Anti-Slayer Rule

A

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

31
Q

Unintentional disinheritance of Child

A

omitted child gets intestate share

32
Q

Disclaimer of Gift

Requirement and when must it be disclaimed

A

(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

33
Q

Contesting Will for Insane Delusion

A

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

34
Q

Contesting Testator’s Capacity

A

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

35
Q

Undue Influence- what to look at?

A

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

36
Q

Who does the Presumption of Undue Influence apply to?

A

(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

37
Q

Contesting Will due to Fraud by Beneficiary

What must the contestant show and prove?

A

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

38
Q

Fraud in Inducement vs. Fraud in Execution

A

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

39
Q

Jurisdiction for Probate

A

county in which decedent was domiciled when they died

if decedent owns real property elsewhere, ancillary jx applies to that property

40
Q

Abatement

A

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

41
Q

Personal Representative

A

person who acts on behalf of estate during probate process

appointed by court: estate administrator
appointed by will: estate executor

entitled to reasonable compensation

42
Q

Will Contests Timing

A

must challenge probate within 120 days or claim is barred

43
Q

Duties of Personal Representative

A

(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

44
Q

Define Undue Influence

A

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

45
Q

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

A

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

46
Q

Undue Influence: Vulnerability of the victim

A

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

47
Q

Undue Influence: Influencer’s Authority

A

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

48
Q

Undue influence: Influencer’s Conduct

A

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
49
Q

Undue Influence: Equity of the Result

A

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

50
Q

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

A
  1. Susceptibility
  2. Motive
  3. Opportunity
  4. Causation
51
Q

Omitted Child

A

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. **

52
Q

Common Law: Lapse

A

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.

53
Q

Intestate Succession for SP

A

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.

54
Q

Does a CA will have to be dated?

A

No

55
Q

Non-dated holographic will presumption

A

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

56
Q

Ademption by Extinction

A

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

57
Q

Specific Gift

A

transfer of specifically identifiable property

58
Q

General Gift

A

satisfied from the general assets

59
Q
A

Wills and Trusts (3 decks)

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