Wills

Question 1

What are the will formation requirments in California?

Answer 1

Will Formation Requirements (CA): A valid will in California must be in writing, signed by the testator (or by someone at the testator’s direction and in their presence), and 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.

Question 2

When does a testator have adequate capacity?

Answer 2

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.

Question 3

When a holographic will valid?

Answer 3

A holographic will is valid if the material provisions and the testator’s signature are in the testator’s handwriting. No witnesses are required, but the testator must have testamentary intent.

Question 4

What is a pour-over-will?

Answer 4

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.

Question 5

What is a codicil ?

Answer 5

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.

Question 6

What is a class gift?

Answer 6

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.

Question 7

What is ademption by extinction?

Answer 7

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 was exchanged for a substantially identical asset, was sold by an agent acting under a durable power of attorney, or was subject to a pending insurance claim.

Question 8

What is abatement?

Answer 8

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.

Question 9

How does a testator revoke will by physical act?

Answer 9

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.

Question 10

How does a testator revoke a will by subsequent instrument?

Answer 10

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.

Question 11

How can a revoked will be revived?

Answer 11

A revoked will may be revived if re-executed, republished by codicil, or if there is clear and convincing evidence that the testator intended to revive it after revoking a subsequent will.

Question 12

Can a document be incorporated into a will be reference?

Answer 12

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.

Question 13

When can a document be integrated into a will?

Answer 13

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.

Question 14

When can a will be invalided for prima facia undue influence?

Answer 14

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.

Question 15

When does case law presume undue influence?

Answer 15

A presumption of undue influence arises if the testator and beneficiary shared a confidential relationship, the beneficiary actively participated in drafting the will, and the gift was unnatural.

Question 16

What is statutory undue influence?

Answer 16

A will is presumptively invalid if the drafter is also the beneficiary, unless the drafter is a close relative of the testator.

Question 17

What does the lapse rule say about a gift?

Answer 17

A gift lapses if the beneficiary predeceases the testator and the will does not specify an alternative recipient.

Question 18

What does the anti-lapse statute apply?

Answer 18

If a predeceasing beneficiary was a blood relative of the testator and left issue, the gift passes to the beneficiary’s issue rather than lapsing.

Question 19

When is an abatement order proper?

Answer 19

If an estate lacks sufficient funds to satisfy all gifts, abatement occurs in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Question 20

What is a residuary clause?

Answer 20

Any assets not specifically devised pass under the will’s residuary clause. If no residuary clause exists, the assets pass by intestacy.

Question 21

How do you know if a testator has testamentary capacity?

Answer 21

A testator has testamentary capacity if, at the time of execution, they understand the nature of the act, the nature and extent of their property, and the natural objects of their bounty.

Question 22

How do know if a testator has testamentary intent?

Answer 22

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.

Question 23

Can an interested witness sign a will?

Answer 23

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.

Question 24

When is a holographic will or codicil valid?

Answer 24

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.

Question 25

When can a will dispose of property by reference to acts or events outside the will?

Answer 25

A will may dispose of property by reference to acts or events that have significance apart from their effect on the will, even if those acts occur after the will’s execution.

Question 26

How does property distribute by intestate succession?

Answer 26

When a decedent dies without a valid will or with property undisposed of, intestate succession applies, with the surviving spouse taking all community property and a portion of separate property, and the issue(s) taking the remainder per capita.

Question 27

What is the rule against perpetuities?

Answer 27

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.

Question 28

What happens when a spouse is omitted in a will?

Answer 28

A spouse who marries after the execution of a will and is not provided for is entitled to an intestate share of the estate unless the omission was intentional, the spouse was provided for outside the will, or the spouse signed a valid waiver of inheritance rights.

Question 29

Can a spouse claim both their share of the estate by will and by community property law?

Answer 29

A surviving spouse may elect to take under the decedent’s will or claim their community or quasi-community property share but cannot do both.

Question 30

Can creditors attach trust distributions made to a surviving spouse?

Answer 30

A surviving spouse with an interest in a trust may assert rights to distributions, but creditors may attach those distributions if the surviving spouse has outstanding debts.

Question 31

What is the Pretermitted Child Rule?

Answer 31

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.

Question 32

What does CA’s harmless error rule say about strict compliance with formal execution requirements?

Answer 32

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.

Question 33

What is the Clear and Convincing Evidence Standard?

Answer 33

A heightened evidentiary standard requiring proof that a fact is highly probable, used in certain probate matters such as proving a lost will or establishing the testator’s intent under the harmless error rule.