Wills 21-38

Question 1

What is a Residual Gift?

Answer 1

A gift of any property remaining after the distribution of the estate to the identified beneficiaries.

Priority: Medium

Question 2

Specific Gift

vs.

General Gift

vs.

Demonstrative Gift

Answer 2

Specific Gift: One that is specifically identified (i.e. real or personal property).

General Gift: Nonspecific, and can be satisfied from any funds remaining in the testator’s estate.

Demonstrative Gift: A hybrid, and occurs when the testator makes a general gift, but also identifies a specific source that the gift should come from.

Priority: Medium/Low

Question 3

Are gifts to an Interested Witness valid?

Answer 3

Gifts to an interested witness (a beneficiary under the will) are presumed invalid.

*If an interested witness cannot overcome this presumption, he will only take his intestate share of the estate.

Priority: Medium

Question 4

How do Adopted Children inherit from their parents?

Answer 4

They inherit as if they were natural born children.

Priority: Medium

Question 5

What is an Omitted Spouseentitled to?

(Omitted Spouse = surviving spouse not mentioned in a will executed before the marriage began)

Answer 5

One-half of decedent’s community property and quasi-community property; AND

Intestate share of separate property (but notmore than one-half).

*The other half of community/quasi-community property already belongs to surviving spouse.

Priority: HIGH

Question 6

When is an Omitted Spouse not entitled to an Intestate Share of the estate?

Answer 6

The spouse was intentionally omitted;

The spouse was given property outside of the will (in lieu of a disposition); OR

The omission was consistent with a valid prenuptial agreement.

Priority: HIGH

Question 7

How is the estate distributed under Intestacy to a Surviving Spouse?

Answer 7

Community Property: One-half of decedent’s community property and quasi-community property.

*The other half of community/quasi-community property already belongs to surviving spouse.

Separate Property: Goes to surviving spouse as follows:

Entire Share – if no surviving issue, parent, siblings, or issue of siblings.

One-Half – if decedent leaves (a) only 1 child or issue of 1 child, or (b) no issue, but parent or their issue.

One-Third – if decedent leaves (a) 2+ children, (b) 1 child and issue of 1+ deceased children, or (c) issue of 2+ deceased children.

Priority: HIGH

Question 8

Under Intestacy, how are shares NOT going to the Surviving Spouse distributed?

Answer 8

Shares pass to decedent’s issue either:

Equally – if all in same degree of kinship; OR

Per Capita by Representation.

Priority: HIGH

Question 9

When does a testator have sufficient

Testamentary Capacity?

Answer 9

A testator must:

Be at least 18 years old;

Understand the nature and extent of her property; AND

Understand the natural objects of her bounty (relatives/friends).

*Appointment of a conservator alone DOES NOT prove lack of capacity.

Priority: HIGH

Question 10

What are the elements of Undue Influence?

Answer 10

If:

Testator had a weakness that made him susceptible to influence;

Wrongdoer had access to the testator and an opportunity to exert influence;

Wrongdoer actively participated in drafting the will; AND

There is an unnatural (unexpected) result.

Priority: HIGH

Question 11

How is the common law presumption of Undue Influence established?

Answer 11

If:

A confidential relationship existed between the testator and the wrongdoer;

The wrongdoer actively participated in the drafting of the will; AND

There is an unnatural result.

Priority: HIGH

Question 12

In California, how is the statutory presumption of Undue Influence established?

Answer 12

If the testator makes a donative transfer to:

Person who drafted the will;

A care custodian of a testator who is a “dependent adult”;

A person in a fiduciary relationship with the testator;

A spouse, domestic partner, employee, or related by blood to one of the previous three circumstances; OR

A partner, shareholder, or employee of the firm who drafted the will (or a fiduciary relationship with an ownership interest).

Priority: HIGH

Question 13

When is a will deemed Fraudulent?

Answer 13

If a person:

Intentionally made a misrepresentation;

Of material fact;

In order to induce the testator to either sign the will or change the contents; AND

The testator did so.

Priority: Low

Question 14

A will is invalid if it’s the result of an Insane Delusion that caused an unnatural result.

When does an Insane Delusion occur?

Answer 14

When the testator:

Has a false idea that is not supported by facts; and

Refuses to accept evidence contrary to this idea.

Priority: Low

Question 15

When are the terms of a Will given effect?

Answer 15

At the time the will is probated OR after the testator’s death.

Priority: Medium

Question 16

How is a “Pretermitted Child” defined?

Answer 16

A child that is NOT mentioned in the will, because it was executed before the child’s birth or adoption.

*They are presumed to have been omitted accidentally, and thus are entitled to an intestate share of the testator’s estate.

Priority: HIGH

Question 17

When is a Pretermitted Child NOT entitled to an intestate share of the estate?

Answer 17

If:

The child was intentionally omitted;

The child is supported by transfers outside the will; OR

The testator had more than one child and left all (or substantially all) of his estate with the parent of the omitted child.

Priority: HIGH

Question 18

When is an Intentionally Omitted Child entitled to a share of the decedent’s estate?

Answer 18

If the child was omitted because the decedent was unaware of the child’s existence or believed the child was dead.

Priority: HIGH