Wills

Question 1

Will

Answer 1

Wills is a testamentary instrument in which property is given upon the death of the testator

Question 2

Valid Will

Answer 2

Valid will required
1. Signed writing
2. Dated
3. 2 disinterred witnesses
4. Testamentary intent

Question 3

Interested / Disinterested witness

Answer 3

An interested witness is someone who gains a benefit from the will. (If witness is in the will, there is a rebuttable presumption that they exercised undue influence)

A Disinterested witness is not in position to gain a gift/ office through the will

Question 4

Capacity to make a will

Answer 4

18 and sound mind
1. Must understand they they are creating a will
2. The nature and circumstances of their property
3. The nature and circumstance of their family

Question 5

Holographic will

Answer 5

A holographic will is one that is signed with terms written in testators writing and requires no witness’s

Question 6

Acts of independent Insignificant

Answer 6

A will may dispose of property by reference to acts and events that have significance apart from their effect on the disposition made by the will

1. Identification of beneficiaries
2. Identification of property
3. Acts of third person

Question 7

Condition/ incentive clause

Answer 7

A conditional/ incentive clause is one that places a condition upon the distribution of a gift.

Restriction must not create a total ban on alienation of property and must not be against public policy.

Question 8

Will Revocation

Answer 8

A will can be revoked by physical act (burning or tearing) or by subsequent instrument (expressly or inconsistent with the will)

• will destroyed by accident is not considered revoked

Question 9

Codicil

(Attested or Holographic

Answer 9

Conical is a supplemental to an existing will executed with full formalities that revokes only inconsistent provisions of the prior will and adds new provisions.

> writing revoked over a paragraph might be constructed as revoking only that paragraph.

Question 10

Community property

Answer 10

California is a community property state meaning that all property that is gained during the marriage is considered community property. Once on spouse dies the 1/2 property of the deceased spouse will pass to the surviving spouse.

Question 11

Quasi-Community Property

Answer 11

Property that would be CP had it been obtained in a CP state. QCP treated as sp while spouse is alive n CP upon death.

Question 12

Intestate succession

Answer 12

Intestate succession is a statutory distribution system of property when the testator has no testamentary instrument in which property will be distributed.

Question 13

Intestate distribution

Answer 13

This is a statutory distribution system. If there is no surviving spouse or issue.

Then decedent estate will pass to
1. decedent parents
2. siblings
3. Decedent grandparents
4. Decedent uncles, nieces or nephews.
5. Issue of predeceased spouse (stepchild)

Question 14

Separate property

Answer 14

Separate property is property spouse brings in before marriage or that is gifted to the spouse, it remains separate property. For separate property held of the property will be distributed to the spouse and other half will be given to issue.

If no issue, SS gets 50% SP, and the rest goes to parents, nieces/nephews.

If no SS, issue gets 50% and the rest goes to the parents of the decedent.

Question 15

Adopted child

Answer 15

Adopted child receive the same legal rights and benefits as an issue and will be considered an issue upon legal adoption.

Question 16

Equitable adoption

Answer 16

The child/father relationship began in child life and continued until the death of deceased. Adopted fail because of some legal impediment.

Question 17

Putative spouse

Answer 17

A putative spouse is a person who has GOOD FAITH BELIEF that their marriage is valid.

Question 18

Slayer rule

Answer 18

A person who intentionally and feloniously kill the decedent, forfeits all benefit of decedent estate by will, trust or intestate

Question 19

Fraud in the inducement

Answer 19

Fraud in which person uses deceit or trickery to persuade another person to act in a certain way (will = void)

Question 20

Advancement

Answer 20

A gift given inter-vivos that is designated in writing as an advance on an intended inheritance.

Question 21

Advancement requirements

Answer 21

For a gift to be become an advancement, it has to meet one of the following:

1. Will provides for deduction of the gift
2. The transferor declares in writing at the time advancement is made
3. The transferee acknowledges in writing that the gift is an advancement
4. The property given is the same property that would be given by the will.

Question 22

120 hour rule

Answer 22

A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession.

Question 23

Ademption

Answer 23

Occurs when a gift is no longer present in the estate at the time of the death of the testator
( intended beneficiary gets nothing)

If it is a gift that changes in form it will still go to the beneficiary. (look at the intent of the T)

Question 24

Abatement

Answer 24

Means to reduce. Occurs when there are insufficient assets to distribute gift as indicated in the will.
( court will reduce amount owed w amount left over )

Question 25

Order of Abatement

Answer 25

1. Property not disposed by the will 2. Residuary gifts 3. General gifts to non- relative 4. General gifts to relative 5. Specific gift to non- relative 6. Specific gift to relative.

Question 26

Types of gifts

Answer 26

General > gift of value that can be satisfied by money Specific > gift/ transfer of specific identifiable property. (Ex. car) Demonstrative gift> general gift from a specific fund or from of specific set of property. ( I give any one of my cars) Residuary > property remaining when all specific/ general gift have been given

Question 27

Lapse/ Anti Lapse

Answer 27

Lapse occurs when a gift is intended for a specific beneficiary and that person has died before the distribution. Anti lapse allows lapse gift to be distributed to the issue of the beneficiary if the beneficiary was a blood relative

Question 28

Writer/ drafter presumption

Answer 28

Writer of a testamentary instrument who receives a gift out of the testamentary instrument have presumed to have done so by undue influence. (Need certification of independent review)

Question 29

Caretaker/ Fiduciary presumption

Answer 29

A gift to caretaker/ fiduciary has a rebuttable that gift was the product of undue influence.

Question 30

Dependent relative revocation (DRR)

Answer 30

DRR occurs when the testator revokes a will in favor of a new will, and then revokes the 2nd will believing the first will re-take effect. Also, when a testator revokes a will, and the 2nd will proves invalid, the 1st will is reinstated. There must be an intent of the testator to revive the first will.

Question 31

Omitted child

Answer 31

A child that is 1. Born after all the testamentary instrument have been created. 1. A child who was sincerely thought to be deceased at the time of the creation of the last testamentary instruments 3. A child whose existence was not known. Duty to defend- the omitted child must prove that they are omitted and the trustee must make them ( entitled to their intestate share )

Question 32

Omitted spouse

Answer 32

A surviving spouse who married the decedent AFTER execution of ALL testamentary instruments and is NOT provided for in any instrument ( only entitled to their intestate share) HOWEVER, will not receive an intestate share if 1) if the omission was intentional and appears on the face of the instrument, 2) the spouse is provided for outside of the testamentary instruments, or 3) there was a voluntary and knowing waiver by the spouse (valid prenuptial agreement).

Question 33

Pour over will

Answer 33

A will that pours all assets into a Living trust. -(Any property not specifically left to someone in the will automically goes to trust)

Question 34

Per Capita

Answer 34

Per Capita distribution is the California default for intestate succession. Under Per Capita distribution, shares of the decedent’s estate are determined at the first generational level that has at least one living issue. At that generational level, all living issues and deceased issues who left issues get equal shares.

Question 35

Per Stirpes (NEED WILL)

Answer 35

Distribution, where shares are determined at a generational level directly after the decedant no matter dead or alive. There must be a valid testamentry instrument and it must state in the will that it wants the distribution to be per stirpe

Question 36

Witness Presence

Answer 36

Meaning that they must be in the same vicinity, 1) conscious presence or 2) in the same line of sight. (Aware of each other signing)

Question 37

Undue Influence/ Fraud

Answer 37

Undue influence: Undue influence is the pressure exerted upon a testator that overcomes the testator’s free will and that influence affected the will Fraud:An intentional misrepresentation made for the purpose of inducing conduct on the part of the listener, and which does produce that conduct

Question 38

Duress

Answer 38

Duress is pressure, threat other than actual force, instigated against a testator for the purpose of procuring a donative gift. EX: you will never see your granddaughter again unless you leave me your house in the will

Question 39

Omitted child will not Inherent IF

Answer 39

The child will not inherit if: The testamentary instrument shows that the child’s omission was intentional; The decedent provided for the omitted child outside of the testamentary instrument or The decedent left substantially all of the estate to the child’s other parent ANALYSIS: a disinherited child is one who was intentionally omitted, an omitted child is incidental and accidental.

Question 40

Republication by Codicil (OMITTED CHILD):

Answer 40

When a testator amends his or her will by codicil, the date of the codicil becomes the new execution date of the original will itself.

Question 41

Widows elected share (this is at issue also with Omitted spouses):

Answer 41

Widows/widowers elective share in California is what the widow may elect. They can elect to get their share intestate or the gift as listed in the will.

Question 42

Incorporation by Reference

Answer 42

A writing can be incorporated by reference into a will if (1) there is a writing, (2) it existed at the time of the will's execution, (3) it is specifically referenced in the will, and (4) the testator had the intent to incorporate the writing.