Wills Flashcards
How is community property (CP) distributed under intestacy?
Surviving spouse (SS) gets decedent’s ½ of CP and quasi-community property (QCP).
SS ends up with 100% of CP and QCP.
How is separate property (SP) distributed under intestacy if there are no descendants, parents, or siblings?
All SP to SS.
How is separate property (SP) distributed under intestacy if there is one surviving descendant or parent?
½ to SS, ½ to one surviving descendant or parent.
How is separate property (SP) distributed under intestacy if there are multiple descendants?
⅓ to SS, ⅔ to multiple descendants.
What are the survival requirements for intestacy in California?
Under CA’s 120-hour rule (USDA), an heir must survive by 120 hours to inherit.
What happens if there is no sufficient evidence of the order of death?
Each decedent’s property passes as if they survived the other.
How is paternity established for inheritance in California?
Presumed if the father acknowledged the child as his own (held out child or stated in writing).
How long after reaching majority can a child bring a paternity action?
Within 3 years.
What is the per capita with representation distribution method?
Property is divided equally among the first generation with a living member.
Shares of deceased members pass to their issue.
What are the requirements for a valid will in California?
- Writing
- Signed by testator (T), at least 18 years old and of sound mind
- Signed in joint presence of and attested by two witnesses who understand it’s a will.
What is California’s ‘conscious presence’ test for witnesses?
T and witnesses must be aware of each other’s presence and actions but need not see each other sign.
What happens if a will has an interested witness?
Creates a rebuttable presumption of undue influence unless two other disinterested witnesses exist.
What is California’s substantial compliance rule for wills?
A will is valid if clear and convincing evidence shows T intended it to be their will.
What is a holographic will?
Handwritten, signed by T, and does NOT need witnesses.
What is a codicil?
A document that amends, revokes, or republishes a prior will.
What are the ways to revoke a will in California?
- Subsequent will or codicil (express or implied)
- Physical act (burning, tearing, obliterating)
- By operation of law (divorce revokes gifts to ex-spouse).
What happens if a will cannot be found after death?
Rebuttable presumption that it was revoked.
Proponent must prove its existence by clear and convincing evidence.
What is dependent relative revocation (DRR)?
If T revokes a will under a mistaken belief of law or fact (e.g., that a new will is valid), the old will remains valid and can be revived.
What is ademption by extinction?
If a specifically devised item is gone at death, the beneficiary takes nothing.
What does CA consider in ademption by extinction?
T’s intent (e.g., if guardian sells the property, no ademption).
What is ademption by satisfaction?
If T gives the beneficiary a lifetime gift meant to satisfy a bequest. Must be confirmed in a contemporaneous writing.
What happens if a beneficiary dies before T?
Gift lapses and falls into the residuary estate.
What does CA’s anti-lapse statute do?
Saves the gift if the beneficiary was a blood relative who left issue.
What is abatement?
When estate assets are insufficient to pay debts and legacies, gifts are reduced in the following order:
* Intestate property
* Residuary gifts
* General gifts
* Specific gifts.
What are the grounds to contest a will?
- Lack of capacity
- Insane delusion
- Undue influence
- Fraud
- Mistake.
What is California’s test for testamentary capacity?
T must understand:
* The nature of the act
* The nature and extent of their property
* The natural objects of their bounty.
What is undue influence?
A third party pressures T into making a will against their free will.
What are California’s factors for undue influence?
The court considers:
- Vulnerability of T
- Apparent authority of influencer
- Actions/tactics used by influencer
- Fairness of result.
What is California’s statutory presumption of undue influence?
If a will benefits a caregiver, drafter, or fiduciary, undue influence is presumed.
What is fraud in the execution?
Misrepresenting the document’s nature (e.g., T thought it was a deed, but it was a will).
What is fraud in the inducement?
Knowingly false statements causing T to make a different will than they would have.
How can a contract to make a will be proven in CA?
- Express terms in a will
- Separate written contract
- Clear and convincing evidence of an oral contract.
What is a no-contest clause?
A clause punishing beneficiaries who challenge a will.
Enforceable in CA only if the contest lacks probable cause.
What is an omitted spouse’s share?
½ of CP and QCP.
Intestate share of SP (but no more than ½ of SP).
What is an omitted child’s share?
They receive what they would have under intestacy.
What are the exceptions for an omitted child’s share?
- Omission was intentional
- T left estate to the child’s parent
- T provided for child outside the will.
What is a pour-over will?
A will that transfers assets into an existing trust.
What is a revocable TOD deed?
Transfers real estate to a beneficiary upon death.
What are the powers of a personal representative in probate?
- Collects estate assets
- Pays debts and expenses
- Distributes remaining assets.
