Wills Flashcards
Spouse’s intestate share
gets 100% of CP
**SP: **
no issue, parent, or issue of parent: 100%
one issue or parent or sibling: 50%
more than one issue: 1/3
Intestate share of issue
includes lineal descendants, adopted children, and after born children if born within 300 days of husbands death
apply either per capita, per stirpes, or per capita with representation
Per capita with representation
divide property equally at first generation with living member who survived the decedant. For those dead, their issue divide their share
Per stirpes
divide property into total number of children who survive or leave issue. must divide at first generation
Per capita at each generation
divide property at first generation with a living member, combine shares of deceased members of that generation and then divide those equally at next generaiton
no spouse or issue
estate passes to parents who survive, then siblings, then grandparents, then aunts and uncles, then issue of predeceased spouse, then next of kin, and if noone, then escheats to the state
When heir dies at or near same time as decedant
heir wil be treated as predeceasing decedant unless there is clear and convincing evidence that the heir survived D by 120 hours, only applies for intestacy
Valid Attested Will
A valid attested will requires:
a writing (no oral wills)
testamentary intent: tesetator must intend the instrument to be their will
signature of testator or someone in his presence and at his direction anywhere on the document
and witnesses: the will must be signed by at least two witnesses with conscious presence at the same time and understanding they are signing a will
Interested witnesses
at common law, the will was invalid, but in California, the will is valid but but there is a rebutable presumption of duress, and if not rebutted, t hen witness takes an intestate share instead.
If there is a 3rd disinterested witness, the gift isn’t affected
Valid Holographic will
the material provisions of the will must be handwritten by testator and signed
a date not required, but if not included, presumed to predate other wills
no witnesses needed
must have testamentory intent
Codicil
a testementary addition to a will, and must have the same formalities of a will to be valid.
republishes the will as of the date of the codacil
can be holographic or attested
can cure an invalid will
Substantial Compliance
CA recognizes a harmless error exception and will recognize a will as valid if it substantially complies with will formalities if shown by clear or convincing evidence that it was meant to be a will or codacil
Will contest requirements
time limit :120 days after will is admitted to probate
Standing: only beneficiaries under a current or prior will have standing
Lack of capacity
may invalidate a will
must show at time T made the will, they:
lacked mental capacity to understand the nature of the act, understand the nature of his property, or remember his relationship to spouse/descendants OR
T suffered from a mental disorder causing T to devise property in a way he otherwise wouldn’t
Proof of incapacity may be shown by deficit in alertness, or inability to modulate mood
Insane delusion
may invalidate will
operated under a belief not based in fact or reason, requires** but for causation**, T would not have disposed of property but for the insane delusion
California Undue influence
statutory presumption: automatically invalidates any provision in a will in favor of the person who drafted it, except T’s relatives or if will was reviewed by independent attorney
other situations, apply 4 factor test:
victims vulnerability
influences apparent authority
influencers tactics
equity of the result
[TEVA]
Traditional Undue influence
Must show:
Suseceptibility
Motive
Opportunity
Causation (but for)
[SMOC]
presumption of undue influence if beneficiary stands in a confidential relationshp to T, paticipated in the will, and the gift was unnatural
Fraud
all or part of will will be invalidated if there is fraud
at the time the will was executed, there must have been a misrepresentation with intent to deceive T
can be fraud in the inducement or fraud in the execution
Revocation
a will may be revoked in whole or in part
revocation of a will revokes the codacil, but revocation of the codacil does not revoke the whole will
Revocation by subsequent instrumnet
a later will can expressly revoke or impliedly revoke if it has inconsistent terms
multiple wills: try to read both together but where there are inconsistent, the later will controls
Revocation by physical act
T commits a physical act with the intent to revoke or a third party does at T’s direction
a will not found creates presumption that T revoked it by physical act, can only be overcome by clear and convincing evidence, including a duplicate original (but not copy)
Revocation of a duplicate original revokes all copies, but desctruction of an unexecuted copy does not serve as a revocation
Revocation by law
subsequent divorce or dissolution of domestic partnership revokes provisions of will in favor of the former spouse/domestic partner
Revival by republication
if a second will is revoke, the first is not automatically revived.
Requires proof of T’s intent to revive the first will
Dependant Relative Revocation
(DRR)
a will or portion of a will that is revoekd ona mistaken basi sof law or fact can be revived. But for the mistake, if T would not have revoked, then revive the provision
Acts of independent significance
T can dispose of property in a will according to an act or event unrelated to the will, including a future event
Incorporation by reference
a will may incorporate an extrinsic document if the document existed at the time the will was executed, was intended to be incorporated, and is sufficiently described in the will to permit its identification
A signed writing disposing of personal proeprty can be made after the will
Failed gift
a failed gift will fall to the residue
if the residue is left to two or more people, and one or more predeceases T and anti-laspe doesn’t save it, the remaining beneficiaries take in proportionate shares
Ambiguity
normally, plain meaning of words only but where there is an ambiguity, can use extrinsic evidence
lapse
at common law, a gift in the will to someone who dies before T lapses and dalls to the residue or to intestate succession
Anti-lapse
prevents lapse if the dead beneficiary is a relative of T or T’s spouse who leaves issue; the issue will take the dead beneficiary’s share
Class gift
if there is a gift to a class and a class member dies, the surviving class members will take unless anti-lapse applies
Ademption
a specific bequest of proeprty that is no longer part of the estate at death will adeem. In california, a substantial change to the item/property will also cause ademption
Intent: a specific gift only adeems if consistent with the testator’s intent
Beneficiary entitlement
whatever is left of the specifically devised property, if it hasn’t adeemed, goes to the beneficiary, including purchase price, insurance, etc.
No exoneration of liens
the devisee takes a property subject to the mortgage unless T specifically directs otherwise
Satisfaction of devise
a testator can satisfy a devise by an inter vivos transfer if they intend for the gift to adeem and be satisfied and the intent is shown in a signed writing
Election by spouse
If provided for, a spouse can elect between taking under the will or taking the testator’s half of CP and QCP
Right to set aside transfers
a spouse can set aside qualifying inter vivo transfers of QCP if the titled spoues retained an interest, the transfer was made without consent, transfered for less than value, and the spouse died domiciled in california
Omitted spouse
if there was marriage after a will, it doesn’t invalidate the will but the spoues can recieve their intestate share unless the terms indicate omission was intentional, the spouse was otherwise provided for, there was a valid prenup, or the spouse was the** care custodian **and only married 6 months before death
Advancement
D can advance an intestate share in whole or party by a lifetime gift, but it must have a contemporaneous writing indicating such
Omitted children
if T fails to provide for a child born or adopted after will is executed, pretermitted child may take an intestate share because omission is presumed unintentional.
includes children believed to be deceased or whose birth T was unaware
remeber that a codacil republishes a will
exceptions: omission was intentional, had other kids and left most or all of the estate to the other parent, otherwise provided for the child outside the will
Bars to succession
murder: one who commits an intentional and felonious killing is treated as predeceasing the testator, and the killer’s issue are also barred from taking
disclaimer: must be in signed writing and within 9 months of D’s death
PRobate jurisdiction
county where D was domiciled at death has jdx
federal courts have no jdx over probate
personal representative
executor (if named in will) or administrator (appointed by court)
must have capacity to contract and act as fiduciary
must notify interested parties, appraise assets, satisfy debts, distribute assets, close estate
Abatement
if the assets of an estate are insufficient to pay debts and satisfy the devises, the gifts abate in a specific order (unless otherwise indicated)
intestate property, then residuary bequests, then general bequests, then specific bequests
favors spoues and relatives
Will contract
enforceable if the will states material provisions, terms in written contract, will makes express reference to the contract, clear and convincing evidence of contractual agreement, OR of a promise enforceable in equity (but limited to one year for oral promises)
