Wills Flashcards
What are the will formation requirments in California?
A valid will in California must:
1. be in writing,
2. signed by the testator (or by someone at the testator’s direction and in their presence), and
3. witnessed by two competent persons who sign the will during the testator’s lifetime.
The witnesses must sign in the testator’s presence and be aware that they are witnessing a will.
When does a testator have adequate capacity?
A testator has adequate capacity to execute a will if:
* they are at least 18 years old;
* understand the nature and extent of their property;
* recognize their natural heirs; and
* comprehend that they are executing a will to distribute their estate upon death.
When a holographic will valid?
A holographic will is valid if:
1. the material provisions and
2. the testator’s signature are in the testator’s handwriting.
No witnesses are required, but the testator must have testamentary intent.
What is a pour-over-will?
A pour-over will transfers assets from a decedent’s estate into a previously established trust, allowing them to be distributed according to the trust’s terms.
What is a codicil ?
A codicil is a testamentary instrument that amends or supplements a will. A properly executed codicil integrates with the will and may validate an otherwise defective will.
What is a class gift?
A class gift is one where a testator provides for a group of individuals who share a common characteristic. Membership in the class is determined at the testator’s death unless the will expresses a contrary intent.
What is ademption by extinction?
A specific gift in a will fails if the subject matter is no longer in the testator’s estate at the time of death.
California recognizes exceptions to ademption, including when the asset
1. was exchanged for a substantially identical asset,
2. was sold by an agent acting under a durable power of attorney, or
3. was subject to a pending insurance claim.
What is abatement?
Abatement occurs when the estate lacks sufficient funds to satisfy all gifts, requiring reductions in a specific order: intestate property, residuary gifts, general gifts, and specific gifts.
How does a testator revoke will by physical act?
A will is revoked if the testator, with intent to revoke, physically destroys, cancels, or obliterates the document.
The act must be performed on the original will, not a copy.
How does a testator revoke a will by subsequent instrument?
A testator may revoke a prior will by executing a new will or codicil that
- expressly revokes the prior will or
- contains provisions inconsistent with it.
How can a revoked will be revived?
A revoked will may be revived if:
* re-executed,
* republished by codicil, or
* there is clear and convincing evidence that the testator intended to revive it after revoking a subsequent will.
Can a document be incorporated into a will by reference?
Yes. A document may be incorporated into a will if it was in existence at the time of execution, is specifically referenced in the will, and the testator intended to incorporate it.
When can a document be integrated into a will?
A document is integrated into a will if it was physically present at the time of execution and the testator intended it to be part of the will.
When can a will be invalided for prima facia undue influence?
A will is invalid if
the testator was susceptible to undue influence,
the influencer had an opportunity to exert influence,
the influencer actively participated in procuring the will, and
the disposition is unnatural.
What is statutory undue influence?
A will is presumptively invalid if the drafter is also the beneficiary, unless the drafter is a close relative of the testator.
What does a gift lapse ?
A gift lapses if the beneficiary predeceases the testator and the will does not specify an alternative recipient.
What does the anti-lapse statute apply?
If a beneficairy died before the testator but was a blood relative the gift passes to their issue instead of lapsing.
When is an abatement order proper?
If an estate lacks sufficient funds to satisfy all gifts, they are reduced or eliminated proprotionally in the following order: intestate property, residuary gifts, general gifts, and specific gifts.
What is a residuary clause?
Any assets not specifically devised pass under the will’s residuary clause. If no residuary clause exists, the assets pass by intestacy.
How do you know if a testator has testamentary intent?
A valid will must reflect the testator’s present intent to dispose of property upon death. Intent is inferred from the document’s language and execution.
Can an interested witness sign a will?
Maybe. A rebuttable presumption of undue influence arises if a witness is also a beneficiary under the will. If the presumption is not rebutted, the beneficiary may receive no more than their intestate share.
When is a holographic will or codicil valid?
A holographic will or codicil is valid if the material terms are in the testator’s handwriting and the document is signed by the testator.
Can a will dispose of property by reference to acts or events outside the will?
Yes but only if the acts or events have significance apart from their effect on the will, even if those acts occur after the will’s execution.
How does property distribute by intestate succession?
When a person dies without a valid will, intestate succession applies.
A surviving spouse will taking all community property and a portion of separate property, and any issue(s) taking the remainder per capita.
What is the rule against perpetuities?
A testamentary gift is invalid if it does not vest within 21 years after the death of a life in being at the time of the testator’s death.
What happens when a spouse is omitted in a will?
A spouse who marries after a will is executed and is not included in the will is entitled to an intestate share of the estate unless:
- The omission was intentional,
- The spouse received assets outside the will in lieu of inheritance, or
- The spouse signed a valid waiver of inheritance rights.
When a decedent’s estate includes community or quasi-community property, what options does the surviving spouse have for inheritance?
A surviving spouse may elect to either take under the decedent’s will or claim their one-half share of community or quasi-community property, but cannot do both.
If the will attempts to dispose of more than the decedent’s half of the community or quasi-community property, the surviving spouse must choose between accepting the will’s terms or asserting their statutory property rights.
Can creditors attach trust distributions made to a surviving spouse?
Yes, a deceased settlor’s creditors can reach the trust assets to the extent the probate estate is insufficient.
What is the Omitted Child Rule?
A child born or adopted after the execution of a will is entitled to an intestate share unless :
* the omission was intentional,
* the child was provided for outside the will, or
* the testator devised substantially all assets to the child’s other parent.
What does CA’s harmless error rule say about strict compliance with formal execution requirements?
A will that does not strictly comply with formal execution requirements may still be admitted to probate if clear and convincing evidence establishes that the testator intended the document to be their will.
What is the Clear and Convincing Evidence Standard?
A heightened evidentiary standard requiring proof that a fact is highly probable.
What does the homestead rule do?
The homestead rule provides that a court may grant a surviving spouse or minor children a temporary right to remain in the decedent’s home, even if devised to someone else.
The court has discretion to set the duration, which may be temporary, for the spouse’s lifetime, or until minor children reach adulthood.
However, the probate homestead does not grant ownership and terminates upon the court-ordered period’s expiration or the property’s sale.
How is separate property distributed under California intestacy laws when a decedent is survived by a spouse and two or more children?
If a decedent is survived by a spouse and two or more children, the spouse receives one-third of the separate property, and the children share the remaining two-thirds. If the children were provided for in the will, they will not be able to claim their share of SP under intestacy law.
Can a conservator modify a will?
California allows a conservator to create or modify a will only if authorized by a court order.
