Wills

Question 1

Intestacy

Answer 1

The surviving spouse of an intestate decedent is entitled to the decedent’s 1/2 CP and quasi-CP. The surviving spouse’s SP share will depend on the number of surviving lineal descendants, parents, or issue of parents. The surviving spouse must be legally married to the decedent at the time of death, and must also survive the decedent by 120 hours to take by intestacy.

If decedent has no heirs, the surviving spouse takes all of SP. If decedent has one lineal descendant or parents or the issue of parents, then the surviving spouse will take 1/2 of SP. If the decedent has more than one lineal descendant, then the surviving spouse will receive 1/3 of the SP. The intestate estate that does not pass to the surviving spouse goes to the issue of the decedent, decedent’s parents, issue of parents, grandparents, issue of grandparents, issue of predeceased spouse, next of kin, parents of predeceased spouse or issue of those parents, or escheats to the state.

Question 2

Survival Requirement

Answer 2

A well drafted will can impose longer survival requirements. But in CA, if it cannot be established by C&CE that one survived the other, the property of each shall be administered or distributed as each person had survived the other. Simultaneous death of spouses, CP and Quasi-CP are split halfsies.

For intestate succession: proponent must establish by C&CE that person survived decedent by 120 hours (this rule does not apply if result would escheat of property to the state).

Question 3

Valid Formal Will

Answer 3

(Writing) The will must be signed by the testator, the signature must indicate testator’s desire to sign, and T must be 18 years old and of sound mind.

(Intent) The testator must understand he is executing a will and intend for it to have testamentary effect, and must generally know and approve of its contents.

(Witnesses) The signature or testator’s acknowledgement of signature must be witnessed by two persons of sufficient mental capacity, present at the same time who understand that it is testator’s will. The witnesses must be aware the act is being performed, but need not actually observe the act (consciously aware of each other’s presence). An interested witness is competent and does not invalidate a will. Unless there are at least two other subscribing disinterested witnesses to the will, the fact that a will makes a devise to a subscribing witness creates a presumption of duress, menace, fraud, or undue influence. This rule does not apply to witnesses who are solely fiduciaries.

(Compliance) If a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance, if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

Question 4

Holographic Wills

Answer 4

Testator must handwrite the material provisions of a holographic will, sign the instrument, and although it need not be witnessed or dated, it must be clear that testator intended the document to be a will.

Question 5

Codicils

Answer 5

A codicil must be executed with the same formalities as a will, and a validly executed codicil republishes a will as of the date of the codicil, and may even validate an invalid will if the codicil refers to it with sufficient certainty to identify and incorporate it.