Wills

Question 1

Spouse’s intestate share

Answer 1

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

Question 2

Intestate share of issue

Answer 2

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

Question 3

Per capita with representation

Answer 3

divide property equally at first generation with living member who survived the decedant. For those dead, their issue divide their share

Question 4

Per stirpes

Answer 4

divide property into total number of children who survive or leave issue. must divide at first generation

Question 5

Per capita at each generation

Answer 5

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

Question 6

no spouse or issue

Answer 6

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

Question 7

When heir dies at or near same time as decedant

Answer 7

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

Question 8

Valid Attested Will

Answer 8

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

Question 9

Interested witnesses

Answer 9

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

Question 10

Valid Holographic will

Answer 10

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

Question 11

Codicil

Answer 11

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

Question 12

Substantial Compliance

Answer 12

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

Question 13

Will contest requirements

Answer 13

time limit :120 days after will is admitted to probate
Standing: only beneficiaries under a current or prior will have standing

Question 14

Lack of capacity

Answer 14

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

Question 15

Insane delusion

Answer 15

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

Question 16

California Undue influence

Answer 16

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]

Question 17

Traditional Undue influence

Answer 17

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

Question 18

Fraud

Answer 18

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

Question 19

Revocation

Answer 19

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

Question 20

Revocation by subsequent instrumnet

Answer 20

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

Question 21

Revocation by physical act

Answer 21

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

Question 22

Revocation by law

Answer 22

subsequent divorce or dissolution of domestic partnership revokes provisions of will in favor of the former spouse/domestic partner

Question 23

Revival by republication

Answer 23

if a second will is revoke, the first is not automatically revived.
Requires proof of T’s intent to revive the first will

Question 24

Dependant Relative Revocation
(DRR)

Answer 24

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

Question 25

Acts of independent significance

Answer 25

T can dispose of property in a will according to an act or event unrelated to the will, including a future event

Question 26

Incorporation by reference

Answer 26

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

Question 27

Failed gift

Answer 27

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

Question 28

Ambiguity

Answer 28

normally, plain meaning of words only but where there is an ambiguity, can use extrinsic evidence

Question 29

lapse

Answer 29

at common law, a gift in the will to someone who dies before T lapses and dalls to the residue or to intestate succession

Question 30

Anti-lapse

Answer 30

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

Question 31

Class gift

Answer 31

if there is a gift to a class and a class member dies, the surviving class members will take unless anti-lapse applies

Question 32

Ademption

Answer 32

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

Question 33

Beneficiary entitlement

Answer 33

whatever is left of the specifically devised property, if it hasn’t adeemed, goes to the beneficiary, including purchase price, insurance, etc.

Question 34

No exoneration of liens

Answer 34

the devisee takes a property subject to the mortgage unless T specifically directs otherwise

Question 35

Satisfaction of devise

Answer 35

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

Question 36

Election by spouse

Answer 36

If provided for, a spouse can elect between taking under the will or taking the testator’s half of CP and QCP

Question 37

Right to set aside transfers

Answer 37

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

Question 38

Omitted spouse

Answer 38

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

Question 39

Advancement

Answer 39

D can advance an intestate share in whole or party by a lifetime gift, but it must have a contemporaneous writing indicating such

Question 40

Omitted children

Answer 40

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

Question 41

Bars to succession

Answer 41

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

Question 42

PRobate jurisdiction

Answer 42

county where D was domiciled at death has jdx
federal courts have no jdx over probate

Question 43

personal representative

Answer 43

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

Question 44

Abatement

Answer 44

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

Question 45

Will contract

Answer 45

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)