Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

Bar Essays > Wills > Flashcards

Wills Flashcards

1
Q

Topics? (4)

(Intestate Succession)

A
  1. CP & QCP
  2. SP
  3. Distribution Scheme
  4. Misc. Rules
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Structure?

  1. _
  2. _

(Intestate Succession: CP & QCP)

A
  1. Surviving Spouse = 100% of Decedent’s 1/2 Share of CP
  2. Quasi-Community Property (QCP) = Same Treatment as CP
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Structure?

  1. _
    1. _
      1. _
    2. _
    3. _
    4. _
  2. _
    1. _
    2. _
    3. _
    4. _
    5. _
    6. _
    7. _
    8. _

(Intestate Succession: SP)

A
  1. Surviving Spouse or Domestic Partner
    1. No Issue, Parents, Sibling or Issue of Deceased Sibling = 100 % to Surviving Spouse
      1. Issue = Descendants
    2. No Issue But Parent(s) or Issue of Parents = 1/2 to Surviving Spouse
    3. One Issue or Issue of Predeceased Child = 1/2 to Surviving Spouse
    4. More Than One Issue or Issue of Predeceased Children = 1/3 to Surviving Spouse
  2. No Surviving Spouse or Domestic Partner
    1. To Issue (Any Generation)
    2. No Issue? To Parents
    3. No Issue or Parents Survive? To Issue of Parents
    4. No Issue, Parent or Issue of Parent? To Grandparents or Their Issue
    5. No Issue, Parent, Issue of Parent, Grandparent or Issue of Grandparent? To Issue of a Predeceased Spouse or Domestic Partner
    6. None of the Above Survive? Next of Kin
    7. No Next of Kin? To Parents of a Predeceased Spouse or Their Issue
    8. If None of These? Escheats to the State of CA
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Structure?

  1. _
  2. _
    1. _
      1. _
    2. _

(Intestate Succession: Distribution Scheme)

A
  1. All Takers Equally Closely Related to Decedent = Per Capita
  2. Takers Not Equally Closely Related To Decedent
    1. Per Capita with Right of Representation (aka Modern Per Stirpes) = 1st Level of Issue w/ Living Persons
      1. Default Rule
    2. Traditional/Classic Per Stirpes = 1st Level of Issue
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Structure?

  1. _
    1. _
    2. _
  2. _
    1. _
    2. _
      1. _
        1. _
        2. _
  3. _
    1. _
    2. _
    3. _
  4. _
    1. _
    2. _
    3. _
      1. _
      2. _
        1. _
        2. _
          1. _
          2. _
          3. _
      3. _
    4. _
      1. _
      2. _
        1. _
        2. _
          1. _
          2. _
          3. _
      3. _
  5. _
    1. _
    2. _
  6. _
    1. _
    2. _
  7. _
    1. _
    2. _
      1. _
      2. _
    3. _
    4. _
    5. _

(Intestate Succession: Miscellaneous Rules)

A
  1. Survival Rule
    1. Burden of Proof = Clear & Convincing Evidence of Survival
    2. Exception: Property Escheats to State = Survival Rule Not Applicable
  2. Effect of Adoption
    1. Adoptive Parents & Relatives = Inherit
    2. Natural Parents = No Inheritance
      1. Exceptions to Severance = Step-Parent Adoption (by Spouse/Domestic Partner of Either Natural Parent)
        1. During Life of Both Natural Parents, OR
        2. Adopted After Death of Either Natural Parent
  3. Equitable Adoption = Unadapted Stepchildren & Foster Children
    1. Relationship Began During Child’s Minority
    2. Relationship Continued Throughout Both Parties’ Lifetimes
    3. Clear & Convincing Evidence of Adoption But For Legal Barrier
  4. Non-Marital Children
    1. Equal Protection Violation
    2. Mother = Always
    3. Father = Yes if Parent-Child Relationship Existed
      1. Child Born During Actual or Attempted Marriage
      2. Parents Married or Attempted to Marry
        1. Before Child’s Birth & Birth Within 300 Days
        2. After Child’s Birth
          1. Father Named on Birth Certificate
          2. Father Makes Voluntary Promise to Pay Child Support, OR
          3. Father Ordered to Pay Child Support By Court
      3. Holding Child Out As His Own
    4. Non-Birthing Domestic Partner
      1. Child Born During Actual or Attempted Domestic Partnership
      2. Formed or Attempted to Form Domestic Partnership
        1. Before Child’s Birth & Birth Within 300 Days
        2. After Child’s Birth
          1. Non-Birthing Domestic Partner Named on Birth Certificate
          2. Non-Birthing Domestic Partner Makes Voluntary Promise to Pay Child Support, OR
          3. Non-Birthing Domestic Partner Ordered to Pay Child Support By Court
      3. Holding Child Out As Her Own
  5. Half-Bloods
    1. Definition
    2. Rule
  6. Posthumous Heirs
    1. Posthumous Relatives
    2. Posthumous Children
  7. Posthumously Conceived Children
    1. Treated As Born During Decedent’s Lifetime
    2. Use Authorized In Writing
      1. Signed & Dated
      2. Designates Person in Control
    3. Written Notice Within 4 Months
    4. Conceived & In Utero Within 2 Years of Death Certificate
    5. Burden of Proof = Clear & Convincing Evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Topics? (4)

(Requirements & Components of Wills)

A
  1. Execution of Wills
  2. Components of the Will
  3. Conditional Wills
  4. Execution of Holographic Wills
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Structure?

  1. _
    1. _
      1. _
      2. _
      3. _
      4. _
    2. _
      1. _
      2. _
      3. _
    3. _
      1. _
  2. _
    1. _
  3. _
    1. _
    2. _
      1. _
        1. _
        2. _
          1. _
          2. _
        3. _
      2. _
      3. _
    3. _
      1. _
        1. _
        2. _
      2. _
      3. _
        1. _
          1. _
          2. _
        2. _
        3. _
    4. _
      1. _
      2. _
        1. _
        2. _
        3. _
      3. _
    5. _
      1. _
      2. _
  4. _

(Requirements & Components of Wills: Execution of Wills)

A
  1. Capacity
    1. Requirements for Capacity
      1. Age = 18 Years
      2. Know Nature & Situation of Property
      3. Understand Her Relations to Spouse or Domestic Partner, Issue, Parents & Others Whose Interests are Affected by the Will
      4. Understand Nature of the Testamentary Act
    2. Challenges Relating to Capacity
      1. Insane Delusion
      2. Fraud
      3. Undue Influence
    3. Consequence of No Capacity = Entire Will Invalid
      1. Prior Valid Will
  2. Present Testamentary Intent
    1. Test
  3. Formalities of Execution for Attested or Formal Wills
    1. Writing Required
    2. Signature Required
      1. Signed By One of the Following
        1. By Testator
        2. By Another, OR
          1. In Testator’s Presence
          2. At Testator’s Direction
        3. By Conservator Pursuant to Court Order Giving the Conservator Will-Making Power
      2. No Subscription Requirement (aka May Sign Anywhere on Document)
      3. Intent Dispositive
    3. Simultaneous Presence of Two Witnesses
      1. Presence?
        1. Visual Presence (aka Line of Sight), OR
        2. Conscious Presence
      2. Clear & Convincing Evidence Standard in CA = Testators Dying On or After January 1, 2009
      3. Interested Witness
        1. Exceptions
          1. Two Other Disinterested Witnesses, OR
          2. Fiduciary Capacity
        2. Effect if Presumption Rebutted = Will is Valid & Beneficiary Takes Entire Gift
        3. Effect if Presumption Not Rebutted = Will is Valid & Beneficiary Is Purged Down To Intestate Share
    4. Signed By Witnesses Within Testator’s Lifetime
      1. Intent Dispositive
      2. CA Standards
        1. Witnesses Do Not Have to Sign in Each Other’s Presence
        2. Witnesses Do Not Have to Sign in Testator’s Presence
        3. No Subscription Requirement (aka May Sign Anywhere on Document)
      3. Clear & Convincing Evidence Standard in CA = Testators Dying On or After January 1, 2009
    5. Witnesses Understand the Significance of the Testator’s Act
      1. No Publication Requirement
      2. Clear & Convincing Evidence Standard in CA = Testators Dying On or After January 1, 2009
  4. CA’s Substantial Compliance Standard = Testators Dying Before January 1, 2009
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Structure?

  1. _
    1. _
      1. _
        1. _
        2. _
      2. _
  2. _
    1. _
    2. _
    3. _
    4. _
      1. _
  3. _
    1. _
      1. _
    2. _
      1. _
  4. _
    1. _
    2. _
      1. _
        1. _
        2. _
        3. _
      2. _
      3. _
      4. _
        1. _
        2. _
        3. _
          1. _
          2. _
    3. _
  5. _
    1. _
      1. _
        1. _
        2. _
        3. _
    2. _
      1. _
      2. _
    3. _
  6. _
    1. _
      1. _
        1. _
        2. _
        3. _
        4. _
      2. _
      3. _
      4. _

(Requirements & Components of Wills: Components of the Will)

A
  1. Integration
    1. Elements
      1. Intent by Testator
        1. Physical Connection, OR
        2. Logical Connection
      2. Actually Present at Time of Execution
  2. Incorporation by Reference
    1. Document or Other Writing
    2. Documents in Existence at Time of Execution
    3. Documents Clearly Identifiable
    4. Intent by Testator
      1. Presumed by Court if Other Elements Satisfied
  3. Facts of Independent Significance
    1. Non-Testamentary in Nature
      1. Past or Future Act
    2. Test = Does the Act Have Sufficient Significance Apart From Its Effect on the
      Will?
      1. If Yes
  4. Writing Disposing of Limited Tangible Personal Property = CA Probate Code § 6132
    1. Scope = Decedents Dying On or After January 1, 2007
    2. Elements
      1. Writing Must Be
        1. Referred to in Unrevoked Will
        2. Dated
        3. Signed or Handwritten by Testator
      2. Writing Must Describe Items & Beneficiaries with Reasonable Certainty
      3. Writing May Be Executed Before or After Will
      4. Writing Disposes of Limited Tangible Personal Property = No More Than $25K in the Aggregate & No Single Item Over $5K
        1. No Cash
        2. No Trade or Business Property
        3. Limitation on Value
          1. $5,000 per Item
          2. $25,000 in Aggregate
    3. Last in Time Prevails
  5. Codicil
    1. Republication of Will
      1. Republication Issues?
        1. Pour-Over Wills
        2. Incorporation by Reference
        3. Pretermission
    2. Effect of Revocation
      1. Revocation of Codicil = Rebuttable Presumption that Only Codicil Revoked
      2. Revocation of Will = Rebuttable Presumption Will & All Codicils Revoked
    3. Holographic Codicil to Attested Wills OK
  6. Pour-Over Wills
    1. Validated By
      1. Incorporation By Reference
        1. Trust Instrument in Writing
        2. Trust Instrument in Existence at Time of Will Execution
        3. Trust Instrument Clearly Identifiable
        4. Intent by Testator
      2. Facts of Independent Significance
      3. Uniform Testamentary Additions to Trusts Act (UTATA), OR
      4. CA Probate Code § 6132
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Structure?

  1. _
  2. _
    1. _
    2. _

(Requirements & Components of Wills: Conditional Wills)

A
  1. Probated Only If Condition Satisfied
  2. Form
    1. Formal Wills, OR
    2. Holographic Wills
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Structure?

  1. _
    1. _
    2. _
      1. _
        1. _
        2. _
    3. _
      1. _
      2. _
  2. _
    1. _
    2. _
    3. _
  3. _
    1. _
      1. _
    2. _
    3. _

(Requirements & Components of Wills: Execution of Holographic Wills)

A
  1. Formalities
    1. Writing Required
    2. Material Terms Handwritten by Testator
      1. Material Terms
        1. Gifts Made
        2. Names of Beneficiaries
    3. Signed by Testator
      1. Intent Dispositive
      2. No Subscription Requirement (aka May Sign Anywhere on Document)
  2. Testamentary Intent
    1. Extrinsic Evidence Admissible
    2. Series of Letters = Can Demonstrate Intent under Integration
    3. Commercially Printed Form
  3. Date Not Required
    1. Undated Holographic Will Treated As Earlier Than Inconsistent Attested Wills
      or Dated Holographs
      1. Burden of Proof on Proponent
    2. Two Inconsistent Undated Holographic Wills
    3. Capacity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Topics? (4)

(Contests to Wills)

A
  1. Insane Delusion
  2. Fraud
  3. Undue Influence
  4. Mistake
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Structure?

  1. _
    1. _
    2. _
    3. _
    4. _
  2. _
    1. _

(Contests to Wills: Insane Delusion)

A
  1. Requirements
    1. Testator Suffers from a Mental Disorder
    2. Causing Delusion/Hallucination Resulting in False Belief
    3. Resistant to Contrary Evidence
    4. Delusion Must Have Affected Will
  2. Effect = Only Part Affected Invalid
    1. Residuary Gift
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Structure?

  1. _
    1. _
    2. _
    3. _
    4. _
  2. _
    1. _
      1. _
    2. _
      1. _
      2. _
      3. _
    3. _
      1. _

(Contests to Wills: Fraud)

A
  1. Elements of Fraud
    1. Misrepresentation of Material Fact
    2. Known to be False by the Wrongdoer
    3. For the Purpose of Inducing Action or Omission
    4. Actually Induces the Desired Action or Omission
  2. Types of Fraud
    1. Fraud In Execution = Entire Will Invalid
      1. Effect = Intestate Succession Unless Prior Valid Will
    2. Fraud In Inducement = Only Part Affected Invalid
      1. Residuary Clause
      2. No Residuary Clause = Intestate Succession, OR
      3. Constructive Trust
    3. Fraud In Prevention of Revocation = No Probate
      1. Effect = Constructive Trust
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Structure?

  1. _
    1. _
      1. _
        1. _
        2. _
        3. _
        4. _
      2. _
      3. _
      4. _
    2. _
      1. _
      2. _
      3. _
  2. _
    1. _
      1. _
        1. _
        2. _
        3. _
        4. _
        5. _
        6. _
      2. _
      3. _
    2. _
      1. _
        1. _
        2. _
      2. _
        1. _
        2. _
        3. _
  3. _
    1. _
      1. _
      2. _
        1. _
        2. _
        3. _
        4. _
        5. _
        6. _
    2. _
    3. _
      1. _
      2. _
        1. _
        2. _
    4. _
      1. _
      2. _
        1. _
      3. _
        1. _
        2. _
        3. _
        4. _
    5. _

(Contests to Wills: Undue Influence)

A
  1. Prima Facie Case = Only Part Affected Invalid
    1. Elements
      1. Susceptible Testator
        1. Psychological
        2. Financial
        3. Physical, OR
        4. Any Other Weakness
      2. Opportunity to Influence
      3. Disposition or Motive to Exert Influence
      4. Unnatural Result
    2. Effect = Only Part Affected Invalid
      1. Residuary Clause
      2. No Residuary Clause= Intestate Succession, OR
      3. Constructive Trust
  2. Presumption of Undue Influence = Only Part Affected Invalid
    1. Elements
      1. Confidential Relationship
        1. Attorney-Client
        2. Doctor-Patient
        3. Guardian-Ward
        4. Penitential Relationships
        5. Trustee-Beneficiary
        6. But No Husband-Wife or Domestic Partners
      2. Active Participation in Procuring a Will
      3. Unnatural Result
    2. Interested Witnesses = Presumption of Undue Influence
      1. Exceptions
        1. Two Other Disinterested Witnesses, OR
        2. Fiduciary Capacity
      2. Effect = Only Part Affected Invalid
        1. Residuary Clause
        2. No Residuary Clause = Intestate Succession, OR
        3. Constructive Trust
  3. Statutory Undue Influence = Invalidates Donative Transfer
    1. Invalid Donative Transfers
      1. Drafter of Instrument
      2. Drafter’s
        1. Relatives
        2. Spouses
        3. Domestic Partners
        4. Cohabitants
        5. Business Partner, OR
        6. Employee
    2. Persons in Fiduciary Relationship With Settlor or Testator
    3. Care Custodians of Dependent Adult Settlor or Testator
      1. Care Custodians
      2. Dependent Adult
        1. > 64 Years Old, OR
        2. 18 Years Old With Mental or Physical Disability
    4. Exceptions
      1. Reviewed by Independent Attorney
      2. Clear & Convincing Evidence
        1. Inapplicable if Drafter = Transferee
      3. Inapplicable When Transferee is the Drafter’s
        1. Relative
        2. Spouse
        3. Domestic Partner, OR
        4. Cohabitant
    5. Effect = Will Valid But Devise > Intestate Share Invalid
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Structure?

  1. _
    1. _
      1. _
    2. _
      1. _
  2. _
    1. _
    2. _
      1. _
      2. _
  3. _
    1. _
    2. _
  4. _
    1. _
      1. _
      2. _
    2. _
      1. _
        1. _
      2. _
        1. _
  5. _
    1. _
      1. _
    2. _
      1. _
      2. _
        1. _
  6. _
    1. _
      1. _
        1. _
        2. _
      2. _
      3. _
        1. _
        2. _
    2. _
    3. _
      1. _

(Contests to Wills: Mistake)

A
  1. In the Execution
    1. Testator Signs Under Mistaken Belief that Instrument is Non-Testamentary
      1. Effect = Will Invalid
    2. Reciprocal Wills or Mutual Wills
      1. Definition of Reciprocal/Mutual Wills
  2. In the Inducement
    1. Effect = No Relief
    2. Face of Instrument Exception
      1. Mistake Appears on Face
      2. Disposition But For Mistake Appears on Face
  3. In the Content
    1. Omission = No Remedy
    2. Addition = Remedy Available
  4. In the Description (aka Ambiguity)
    1. Types of Mistakes in Description
      1. Non-identification
      2. Equivocation
    2. Effect = Extrinsic Evidence Admissible
      1. Latent Ambiguity
        1. Parol Evidence Admissible
      2. Patent Ambiguity
        1. Parol Evidence Admissible
  5. Mistake Involving Living Children
    1. Born or Adopted After Testamentary Instruments Executed = Pretermitted Child
      1. Effect = Intestate Share
    2. Born or Adopted Before Testamentary Instruments Executed = Pretermitted Child
      1. Effect = Child Disinherited
      2. Exception: Testator Mistakenly Believed Child Dead or Non-Existent
        1. Effect = Pretermitted Child & Intestate Share
  6. Mistake in Validity of Subsequent Instrument = Dependent Relative Revocation (DRR)
    1. Test for DRR
      1. Revocation in Whole or in Part
        1. Revocation by Physical Act, OR
        2. Subsequently Executed Instrument
      2. Upon Mistaken Belief in Validity of Subsequent Will
      3. Prior Will
        1. Substantially Identical
        2. Consistent with Testator’s Intent
    2. Effect = Old Will Reinstated by Operation of Law
    3. 1st Will Destroyed = CA’s Lost Will Provisions
      1. At Least One Witness Testifies
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Topics? (6)

(Revocation)

A
  1. General Rule
  2. Revocation by Physical Act
  3. Revocation By Subsequently Executed Instrument
  4. Revocation by Operation of Law
  5. By Ademption
  6. By Advancement
17
Q

Structure?

  1. _
    1. _
      1. _
      2. _
      3. _
      4. _
      5. _
    2. _
    3. _
  2. _
  3. _
    1. _
      1. _
    2. _
      1. _
        1. _
      2. _
        1. _
  4. _
    1. _
    2. _

(Revocation: Revocation by Physical Act)

A
  1. Elements
    1. Physical Act
      1. Destroying
      2. Burning
      3. Tearing
      4. Obliterating, OR
      5. Cancellation & Interlineation
    2. By Testator or Another in Testator’s Presence
    3. Simultaneous Intent to Revoke
  2. Duplicate Original Wills
  3. Cancellation & Interlineation
    1. Cancellation
      1. Increasing Gift of Co-Beneficiaries by Cancellation = Prohibited
    2. Interlineation
      1. Increase Gift = Invalid if Not Holograph but ORR
        1. Prior Signature Adopted for Holographic Wills
      2. Decrease in Gift = Invalid & No ORR
        1. Prior Signature Adopted for Holographic Wills
  4. Misplaced & Mutilated Wills
    1. Misplaced Will
    2. Mutilated Will
18
Q

Structure?

  1. _
  2. _
    1. _
    2. _
  3. _
    1. _
    2. _

(Revocation: Revocation By Subsequently Executed Instrument)

A
  1. Express Revocation
  2. Implied Revocation
    1. Entire Revocation
    2. Partial Revocation
  3. Revival
    1. 2nd Will Revoked by Physical Act = Extrinsic Evidence Admissible
    2. 2nd Will Revoked by Subsequent Instrument = No Extrinsic Evidenc
19
Q

Structure?

  1. _
    1. _
      1. _
      2. _
        1. _
        2. _
        3. _
  2. _
    1. _
      1. _
        1. _
        2. _
      2. _
        1. _
        2. _
        3. _
          1. _
          2. _
            1. _
            2. _
            3. _
            4. _
  3. _
    1. _
    2. _
    3. _
  4. _
    1. _
      1. _
    2. _

(Revocation: Revocation By Operation Law)

A
  1. Omitted or Pretermitted Child
    1. Effect = Pretermitted Child Takes Intestate Share
      1. Intestate Share of Assets Owned at Death & Assets Held in Any Inter Vivos Trust Revocable at Death
      2. Exceptions
        1. Omission Intentional & Appears on Face of Instrument
        2. Pretermitted Child Provided for Outside of Instrument
        3. Parent of Omitted Child
  2. Omitted Spouse
    1. Effect = Revocation & Statutory Share
      1. Statutory Share
        1. 1/2 of Community Property & Quasi-Community Property
        2. Intestate Share of Decedent’s Separate Property = Max 1/2 of SP
      2. Exceptions
        1. Omission Intentional & Appears on Face of Instrument
        2. Spouse Provided for Outside of Instrument
        3. Signed Waiver by Omitted Spouse
          1. In Writing
          2. Signed by Waiving Spouse Before or During Marriage
            1. Full & Fair Disclosure
            2. Represented by Independent Counsel, OR
            3. Waiver Was Fair, OR
            4. Had or Should Have Had Knowledge of Decedent’s Finances
  3. Omitted Domestic Partners
    1. Partners of Same Sex, OR
    2. Partners of Opposite Sex & One Person > 62 Years
    3. Filed Declaration of Domestic Partnership with Secretary of State
  4. By Divorce or Final Dissolution of Marriage or Domestic Partnership
    1. Devise to Former Spouse = Revoked by Operation of Law
      1. Legal Separation = Not Sufficient for Revocation
    2. Re-Marriage to Former Spouse = Reinstated if Will Unchanged
20
Q

Structure?

  1. _
    1. _
    2. _
      1. _
        1. _
        2. _
        3. _
          1. _
          2. _
          3. _
  2. _
    1. _
      1. _
      2. _
        1. _
        2. _
        3. _
        4. _
    2. _
      1. _
      2. _
    3. _

(Revocation: By Ademption)

A
  1. Ademption by Extinction = Specific Devises Only
    1. Common Law = Gift Fails (Identity Theory)
    2. CA Law = Intent Theory
      1. Presumptions of No Ademption by Extinction
        1. Investment Securities Change Form
        2. Sale of Asset by Conservator
        3. Proceeds After Testator’s Death
          1. Eminent Domain Proceeds
          2. Insurance Proceeds
          3. Installment Payments
  2. Ademption by Satisfaction = Mostly General Devises
    1. Requirements
      1. Inter Vivos Gift
      2. Intent of Satisfaction by Testator
        1. Will Expressly Provides for Deduction
        2. Intent Expressed in Contemporaneous Writing by Testator
        3. Written Acknowledgement by the Beneficiary at Any Time, OR
        4. Specific Devise & Inter Vivos Gift = Specific Property
    2. Valuation
      1. Contemporaneous Writing of Testator or Beneficiary = Conclusive, OR
      2. Fair Market Value at Time Transferee Came Into Possession or Enjoyment, or Death of Testator
    3. Beneficiary Predeceases Testator
21
Q

Structure?

  1. _
    1. _
    2. _
      1. _
      2. _
  2. _
    1. _
    2. _
  3. _
  4. _

(Revocation: By Advancement)

A
  1. Requirements
    1. Inter Vivos Gift
    2. Intent of Advancement by Intestate
      1. Expressed in Contemporaneous Writing by Intestate, OR
      2. Written Acknowledgement by the Heir
  2. Valuation
    1. Expressed in Contemporaneous Writing = Conclusive, OR
    2. Fair Market Value at Time Transferee Came Into Possession or Enjoyment, or Death of Decedent
  3. Recipient Predeceases Intestate
  4. Effect on Shares (aka “Hotchpot”)
22
Q

Structure?

  1. _
    1. _
    2. _
  2. _
    1. _
    2. _
    3. _

(Interpretation & Conflict of Laws)

A
  1. Intestate Property
    1. Personal Property = Decedent’s Domicile
    2. Real Property = Where Property Located
  2. Testate Decedents: Requirements for Will to be Probated in CA
    1. Will Complies with CA’s Will Formalities
    2. Will Complies with Formalities of Execution of State Where the Will Was Executed At the Time It Was Executed, OR
    3. Will Complies with Formalities of Execution of State Where Testator Domiciled At Execution
23
Q

Topics? (3)

(Contracts)

A
  1. Contracts to Make or Not to Revoke Will
  2. Joint & Mutual Wills
  3. Will Substitutes
24
Q

Structure?

  1. _
  2. _
    1. _
    2. _
    3. _
    4. _
      1. _
      2. _
  3. _
    1. _
  4. _
    1. _
    2. _
    3. _

(Contracts: Contracts to Make or Not to Revoke Will)

A
  1. Contract Law Governs
  2. Proof of Contract Established By
    1. Will or Other Instrument Sets Forth Material Provisions of Contract
    2. Express Reference to Contract in Will or Other Instrument
    3. Writing Signed by Decedent Evidencing Contract, OR
    4. Clear & Convincing Evidence
      1. Agreement Between Decedent & Promisee
      2. Agreement Between Decedent & 3rd Party for Claimant’s Benefit
  3. Enforceable at Decedent’s Death, Not at Breach
    1. Exception: Fraud on Promisee
  4. Consequences of Breach
    1. Damages
    2. Specific Performance
    3. Constructive Trust Remedy
25
Q

Structure?

  1. _
  2. _
  3. _

(Contracts: Joint & Mutual Wills)

A
  1. Joint Wills
  2. Mutual (Reciprocal) Wills
  3. Joint & Mutual Wills
26
Q

Structure?

  1. _
    1. _
      1. _
      2. _
      3. _
      4. _
        1. _
        2. _
        3. _
      5. _
    2. _
    3. _
  2. _
    1. _
      1. _
      2. _
      3. _

(Contracts: Will Substitutes)

A
  1. Gifts Causa Mortis
    1. Requirements
      1. Donor Must Fear Impending or Imminent Death
      2. Personal Property Only
      3. Donative Intent
      4. Delivery
        1. Actual
        2. Symbolic, OR
        3. Constructive
      5. Acceptance
    2. Conditional & Revocable
    3. Donor Survives Peril = Revoked By Operation of Law
  2. Totten Trust (Tentative Bank Account Trust)
    1. Revocable By
      1. Withdrawal of Funds
      2. Act Manifesting Intent to Revoke, OR
      3. Contradictory Will
27
Q

Topics? (4)

(Probate & Administration of Estate)

A
  1. Restrictions on Testamentary Disposition & Bars to Succession
  2. Who Can Take?
  3. Types of Devises
  4. What Do They Take?
28
Q

Structure?

  1. _
  2. _
  3. _
    1. _
  4. _
  5. _
    1. _
      1. _
      2. _
    2. _
      1. _
      2. _
      3. _
  6. _

(Probate & Administration of Estate: Restrictions on Testamentary Disposition & Bars to Succession)

A
  1. Separate Property (SP)
  2. Community Property (CP)
  3. Quasi-Community Property (QCP)
    1. Probate Definition of QCP
  4. Widow’s Election Not Recognized in CA
  5. Homicide
    1. Evidence of Homicide
      1. Convicted = Conclusive
      2. Not Convicted = Preponderance of the Evidence
    2. Effect = Killer Treated as Predeceased
      1. Anti-Lapse
      2. Residuary Clause, OR
      3. No Residuary Clause = Intestate Succession
  6. Elder Abuse
29
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. _
        1. _
          1. _
          2. _
        2. _
        3. _
      2. _
  2. _
    1. _
      1. _
        1. _
        2. _
        3. _
    2. _
      1. _
        1. _
          1. _
          2. _
        2. _
        3. _
          1. _
          2. _
  3. _
    1. _
    2. _
    3. _
    4. _
    5. _
      1. _

(Probate & Administration of Estate: Who Can Take?)

A
  1. Posthumous Beneficiaries
    1. Posthumous Relatives
    2. Posthumous Children
    3. Posthumously Conceived Children
      1. Treated As Born During Testator’s Lifetime
        1. Use Authorized In Writing
          1. Signed & Dated
          2. Designates Person in Control
        2. Written Notice Within 4 Months
        3. Conceived & In Utero Within 2 Years of Death Certificate
      2. Burden of Proof = Clear & Convincing Evidence
  2. Lapse & Anti-Lapse
    1. Lapse
      1. Effect of Lapse
        1. Alternative Disposition in Will
        2. No Alternative Disposition = Residuary Clause or Intestate Succession
        3. Class Gifts
    2. Anti-Lapse Statute
      1. Requirements for Anti-Lapse
        1. Predeceased Beneficiary is Kindred (aka Blood Relative) Of
          1. Testator, OR
          2. Testator’s Surviving, Deceased or Former Spouse/Domestic Partner of Testator
        2. Predeceased Beneficiary Leaves Issue
        3. Instrument Does Not Express Intent to the Contrary
      2. Class Gifts
      3. Distribution
        1. Equal Degree = Per Capita
        2. Unequal Degree = Per Capita with Right of Representation
  3. Uniform Simultaneous Death Act
    1. Testator & Devisee
    2. Intestate & Heir
    3. Spouse & Domestic Partners
    4. Joint Tenants with Right of Survivorship
    5. Insured & Beneficiary
      1. Insurance Proceeds = Community Property
30
Q

Structure?

  1. _
  2. _
  3. _
  4. _

(Probate & Administration of Estate: Types of Devises)

A
  1. Specific Devise
  2. General Devise
  3. Demonstrative Devise
  4. Residuary Devise
31
Q

Structure?

  1. _
  2. _
    1. _
    2. _
  3. _
    1. _
      1. _
      2. _
      3. _
    2. _
    3. _
  4. _
    1. _
      1. _
        1. _
        2. _
          1. _
    2. _
      1. _
      2. _
      3. _
      4. _
      5. _
      6. _
  5. _
    1. _
    2. _

(Probate & Administration of Estate: What Do They Take?)

A
  1. After Acquired Property
  2. Increase During Lifetime
    1. Stock Splits
    2. Stock Dividends
  3. Increase After Death & During Probate
    1. Specific Devise = All Income After Death
      1. Interest
      2. Dividends
      3. Rent
    2. General = Interest Beginning One Year After Death
    3. Residuary Gifts = No Interest
  4. Abatement
    1. Order of Abatement
      1. Omitted Child or Spouse/Domestic Partner
        1. Intestate Property
        2. Pro Rata from All Beneficiaries & Revocable Inter Vivos Trust
          1. Exception: Specific Devises
    2. General Debts
      1. Intestate Property
      2. Residual Devises
      3. General Devises to Non-Relatives
      4. General Devises to Relatives
      5. Specific & Demonstrative Devises to Non-Relatives
      6. Specific & Demonstrative Devises to Relatives
  5. Exoneration
    1. Common Law = Yes
    2. CA Law = No

Bar Essays (15 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions