Wills 4

Question 1

**ABATEMENT:
Order of Abatement for PAYING OFF Dec’s DEBT: The ORDER of Abatement of testamentary Gifts depends on …:

[idea: the more precise, the more important]

Answer 1

gift’s CHARACTERIZATION:
1st: INTESTATE gifts abate.
2nd: RESIDUARY abates.
3rd: GENERAL gifts abate PRO-RATA !
4th: SPECIFIC gifts.
[ 5th: Gifts to SPOUSES abate Last, indep. of class.
–Gifts to RELATIVES abate after all gifts to NON-Relat.]

Question 2

ABATEMENT: ORDER of Abatement for OMITTED Children /Spouse +CA:
[Trigger: it’s necessary to pay for the share of an Omitted Spouse-Child.
/”Unless the W states otherwise.”]

Answer 2

1st abate: from INTESTATE Pr [=not disposed by W/T].
2nd abate: PRO-RATA from ALL other BENs
(in proportion to the value of their gifts)
[CA: Abating that Specific gift would defeat T’or’s “obvious INTENT.”]

Question 3

No EXONERATION of Liens:

Answer 3

In Calif., absent intent to Exonerate, Debt is NOT autom. extinguished
=>Residuary gift is NOT reduced.
=>SPECIFIC gifts pass with DEBT REMAINING on them, UNLESS W states otherwise.

Question 4

[Will SUBSTITUTE]

[=Nonpublic inter vivos transfer
=(unlike Ws) NOT testamentary
=> Avoids probate]

Answer 4

[ A written instr. conveying a gift on decedent's death is deemed a NON-Testamentary gift.
Effective NON-probate transfer.
CA: If REVOCABLE: 
Subj. to CREDITORS' 
/Widows' claims.]

Question 5

Will SUBSTITUTE:

Gift Causa Mortis is a gift of: …+CA:

Answer 5

1) PERS. Pr made w/ DONATIVE INT
2) in contemplation of IMMINENT Death
3) DELIVERED 2Donee (Not Symbolic)
CA: If Donor Survives Peril => autom. revoked by operation of law.

Question 6

[Actual, Symbolic, Constructive transfer]

Answer 6

[Actual: Corpus [car] itself.
Symbolic: s.th. representative [car’s title-deed]
Constructive:
ev. of transferring control.
CL: Car key-Access (<= literal or fig.) (b/c too bulky for delivery).
ML: DID EVERYTHING POSSIBLE to effectuate delivery.]

Question 7

**HOLOGRAPHIC WILLS

A Holographic will must be …[+CA]:

Answer 7

1) SIGNED (anywhere) by T &
2) MAT. PROVISIONS are in T’s HANDWRITING.
[CA1: In Calif.: No DATE req’d!
CA2: T’s instructions to Attorney: show NO testam. intent.]

Question 8

INTESTATE Succession:
**Some States+UPC:
“PER CAPITA in EACH GENERATION level”
Distribution:

Answer 8

1) divide Pr at FIRST GENERATION level where s.o.’s ALIVE.
2) COMBINE Shares of DECEASED PERSONS at that level
3) & then EQUALLY Re-Distribute to their children.
=All in same gen. take equally

Question 9

**Few states:
STRICT “Per STIRPES”
Distribution:

Answer 9

1) EQUALLY distribute at FIRST GENERATION BELOW T’or
(=Child level, EVEN if all are DEAD)
2) ISSUE of a Deceased child takes by right of REPRESENTATION.

Question 10

**Calif. CPC240 =MAJ: “PER CAPITA with r.o. REPRESENTATION”
Distribution:
[ ISSUE = lineal descendents,
incl. kids, Gkids, GGkids…]

Answer 10

1) divide Pr at 1st generation where SOMEONE is ALIVE (equally to ALL living +Deceased if they left issue).
2) ISSUE of a Deceased child takes by right of REPRESENTATION.

Question 11

No-Contest clause:

Answer 11

Valid, UNLESS: BEN had Probable Cause.

Question 12

++Decedent’s SP passes to ALL OTHERS
(i.e., if no SS /to Residual)
per an INTESTATE ORDER:

Answer 12

1) Decedent’s ISSUE
2) Surviving PARENT (+Issue =Siblings)
3) GParents (+Issue =Aunt&Uncle)
4) Step Children
5) Predeceased Spouse’s Parents (+Issue)
6) Escheat to [Calif.]

Question 13

**Decedent’s SP passes to SS as follows: If Dec Survived by …

Answer 13

1) NO ISSUE/(issue of a) PARENT: 
SS takes 100% SP 
2) Only 1 of lineal desc. or (Issue of a) Parent [= e.g. Siblings,(G)nephews /nieces]:
SS takes 50% SP.
CA: STEPchild =no lin.desc = no heir.  
CCA: if treated as adopted.
3) >1 line of lineal desc.: 
SS takes 33% SP (i.e. >1 lane of issue 
[2 kids. OR 1 C+issue of another C]):

Question 14

CHOICE of LAW: Under CALIF. Law, ooS Will is valid & may be PROBATED if …+CA:

[Trigger: T’or domiciled in [NY, goes to FL] to have his Will executed, then becomes domiciliary of Calif. & dies there.]

Answer 14

it was properly executed under:
1) CALIFornia LAW
2) the law of the STATE where W was EXECUTED, or
3) the law of T’or’s DOMICILE at DEATH.
CA: For REAL Pr, the law where the LAND is located applies.

Question 15

Spousal Protection is based on CP law.
T’or can dispose of only 50% of Q/CP.
QCP is defined as …:

Answer 15

all PERS. Pr WHEREVER located & all REAL Pr located IN CALIF.!! [Cf. Divorce: ooS Pr, too], acquired by Dec, while domiciled in a non-CP states that it would’ve been CP domiciled in Calif. at acquisition.

Question 16

**Widow’s Election rule (if “conflicting remedies”) …:

Answer 16

where T’or attempt to dispose of >50% of Q-CP:
1) Widow may ACCEPT T’or’s gift in W in LIEU of her statutory 50% Q-CP (take Under the W), or Widow can take 2) “Against the W” =Renounce-DISCLAIM all benefits in the W +CONFIRM her 50% Q-CP.

Question 17

**Absent a valid W, how do CP & QCP Pr pass?

Answer 17

GR: Dec can interv. transfer QCP to 3P. CA: Illusory transf. =Dec retains interest /control over Pr [Ownership/Right to use/Co-T]
triggers Window’s election rule => SS can SET transfer ASIDE = require tr’ee to restore SS’s 50% QCP (= return Pr to Dec’s estate).
CCA: Consent.Decedent’s 50% of Q-CP Pr passes to SS (=> SS gets 100%).

Question 18

Uniform Simultaneous Death Act:
INSURANCE Policy:

If Insured + the BEN die Simultaneously …+CA:

Answer 18

absent c&c ev. Proceeds are treated as if BEN FAILED to survive the DONOR.
CA1: Q-CP paid the PREMIUMS (=>50% Q-CP goes to H’s estate & 50% to W’s).
CA2: ALTERNATIVE named 3PB exists [=>gets 100% of proceeds=>Look!]

Question 19

USDA: Q-CP ….:

Answer 19

is SEVERED, each spouse gets 50%.