Wills Flashcards
A decedent dies without a will, survived by his spouse, his brother, his niece (the sole issue of the decedent’s deceased sister),and his mother. To whom will the decedents separate property be distributed?
A. His spouse.
B. His spouse and his mother.
C. His spouse, his mother, and his brother.
D. His spouse, his mother, his brother, and his niece.
B. His spouse and his mother.
In California, the surviving spouse or domestic partner takes 1/2 of the decedent’s separate property if the decedent is not survived by issue but is survived by a parent or issue of a parent. Here, the decedent has no surviving issue but has a surviving parent, his mother. The surviving spouse will take 1/2 of the decedents separate property. The share not passing to the surviving spouse passes to the decedent’s parents or the surviving parent. Thus the decedents mother will take the other 1/2 of the decedent’s separate property. Because a parent survives, the decedent’s brother and niece, who are issue of the decedent’s parent, do not take. Had the mother pre-deceased the decedent, the brother and niece would have taken one forth each.
How are the intestate shares of the descendants distributed?
A. Equally.
B. Strict per stirpes.
C. Per capita with representation.
D. Per capita at each generation.
C. Per capita with representation.
In California, the intestate shares of descendants are distributed per capita with representation; i.e., property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation. At common law and in a small minority of states, the distribution is under a strict per stirpes method; i.e., the division is made at the child level, regardless of whether there are any living takers at that level, and deceased children’s shares pass to their descendants by representation. Some states distribute intestate shares per capita at each generation; i.e., persons in the same degree of kinship to the decedent always take equal shares. However, under no method do all descendants share equally.
Which of the following never inherit from in an intestate decedent’s estate?
A. The decedent’s uncle.
B. The issue of the decedent’s pre-deceased domestic partner.
C. The decedent’s former spouse.
D. The parents of the decedents pre-deceased spouse
C. The decedent’s former spouse.
A decedent’s property never passes to the decedent’s former spouse. If a decedent is not survived by a spouse, domestic partner, issue, parent, issue of a parent, or grandparent, the property passes to the issue of a grandparent. The decedent’s uncle is the issue of the decedent’s grandparent and thus could inherit. If there is no surviving spouse, domestic partner, issue, parent, issue a parent, grandparent, or issue of grandparents, the property passes to the issue of the decedent’s pre-deceased spouse or domestic partner. If there’s no surviving spouse, domestic partner, issue, parent, issue a parent, grandparent, or issue of grandparents, issue of the decedent’s pre-deceased spouse or domestic partner, or next of kin, the property passes to the parents of the decedent’s predeceasing spouse or domestic partner.
The decedent and her only child were involved in a plane crash. Only the child was alive when the emergency team reached the crash site, but she died shortly after arriving at the hospital. The child, who left no will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizable intestate estate and a life insurance policy naming the child as the sole beneficiary. Who will share in the decedents estate and the insurance proceeds?
A. The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.
B. The child’s spouse will take the estate and the insurance proceeds.
C. The decedent brother will take the estate and the insurance proceeds.
D. The child’s spouse will take the estate, but the decedent’s brother will take the insurance proceeds.
A. The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.
In California, a person who fails to survive a decedent by 120 hours is deemed to have pre-deceased the decedent for purposes of intestate succession, and the heirs are determined accordingly. However, for all other purposes in which the right of a person to succeed a property interest is conditional upon surviving another (e.g., property passing by Will, joint tenancy property, life insurance proceeds), if there is clear and convincing evidence that the person survived the decedent by even a short time, the person succeeds to the property. Here, the decedent was dead would help arrived, and the child survived until after she arrived at the hospital. Having survived the decedent, the child will take the insurance proceeds. Since the child died intestate, her spouse will take the proceeds through her estate. However, since the child did not survive the decedent by 120 hours, she is deemed to have pre-deceased the decedent for purposes of intestate succession. Thus, the decedents brother is her only heir and will inherit her estate.
If one of two joint tenants kills the other, how is title to the property held?
A. The killer owns the entire property.
B. The killer and the victim’s estate each own 1/2 of the property as tenants in common.
C. The state and the victims estate each on 1/2 of the property as tenants in common.
D. The victim’s estate owns the entire property.
If one joint tenant kills the other, the killer and the victims estate each on 1/2 of the property as tenants in common. One who Filoni us Lee and intentionally brings about the death of the decedent forfeit any interest in the decedents estate. If the killer is a joint tenant with the victim, the killing severs the right of survivorship; in fact, the state is treated as a tenancy in common. The victims 1/2 interest passes under her will or by intestacy as though the killer pre-deceased her. However, the killer does not forfeit his interest in the property; he continues to hold his undivided 1/2 interest in the property as a tenant in common with the victims estate.
All of the following are requirements for do execution of a will EXCEPT:
A. The testator must sign or acknowledge the will or his signature in the joint presence of two witnesses.
B. The witnesses must know that the document they are witnessing is a will.
C. The witnesses must sign within the testator’s lifetime.
D. The witness is must signed in the presence of each other.
D. The witness is my sign in the presence of each other.
The witnesses need not sign in the presence of each other and may sign at any time during the testator’s lifetime. The testator my sign or acknowledge the will or his signature in the joint presents of at least two witnesses, and the witnesses must understand that instrument been witnessed is the testator as will.
If a testing witness is also a beneficiary:
A. The wheel cannot be probated if the beneficiary is one of only two witnesses.
B. The will is valid but the devise to the subscribing witness is void.
C. The will is valid, but the device raises a rebuttable presumption that it was procured by dress, minutes, fraud, or undue influence.
D. The will is valid, but the witness-beneficiary is entitled only to the lesser of the device or her intestate share.
C. The will is valid, but the device raises a rebuttable presumption that it was procured by duress, menace, fraud, or undue influence.
And interested witness is competent to testify, and the wheel can be probated, but the device raises a presumption of duress, menace, fraud, or undue influence. This presumption is rebuttable, and the device is not void. The witness is not limited to the lesser of the device or her intestate share. If the witness rebut the presumption, she can take the devise. Only if the witness fails to rebut the presumption, is she entitled to as much of the device as does not exceed this year she would’ve taken if that will not be established.
If the will proponent establishes by clear and convincing evidence that the testator intended the instrument executed to be his will, the instrument will be admitted to probate despite which of the following?
A. The testator and his spouse mistakenly signed each other’s wills.
B. The testator sign the will in front of the first witness and acknowledged his signature to the second witness the next day.
C. After the testator’s attorney read the will to the testator over the phone, the testator directed his attorney to sign the will for the testator.
D. The testator was 17 years old when the will was executed and died at the age of 75.
B. The testator signed the wheel in front of the first witness and acknowledged his signature to the second witness the next day.
Under California is harmless error doctrine, if a will is not executed in compliance with the witnessing requirements, it may nevertheless be admitted to probate if the proponent establishes by clear and convincing evidence that at the time the testator signed the document, he intended the document to be his will. Only choice (B) involves the witnessing requirements. The harmless error doctrine of the UPC applies to noncompliance with any of the formal requirement, but the California doctrine is limited to the witnessing requirements. Neither doctrine would permit probate of a will executed by a minor.
A valid holographic will requires which of the following?
A. The entire instrument in the testator’s hand writing.
B. Intent that the paper serve as a will.
C. The date of execution.
D. The testator’s signature at the end.
B. Intent that the paper serve as a will.
A holographic will is one that is hand written and signed by the testator but has no witnesses. To give a fact to the paper as a will, the writer must have had the present intent that the paper serve as his will. (A) misstates the rule. A portion of the will maybe typewritten. And California, a holographic will is valid if the signature and the material provisions are in the hand writing of the testator. (C) is incorrect because a date on the holographic will is helpful, but it is not required. A holographic will must be signed by the testator, but there is no requirement that it be signed at the end of the well. The signature can even be found in the opening caption. Thus, (D) is not required.
A testator execute a valid holographic will that bequeaths $10,000 to Ben and the residue to Rhonda. Two years later, the testator crosses out the bequest to Ben and writes above it, “$20,000 to Beth.” If the will remains the same at the testator’s death, what is the effect of the testator’s action?
A. Beth will take $20,000, and Rhonda will take the residue.
B. The entire will is revoked.
C. The legacy to Ben is revoked, and Rhonda will take the entire estate.
D. Then will take $10,000, and Rhonda will take the residue.
A. That will take $20,000, and Rhonda will take the residue.
Like most statesthat recognize holographic wills, California gives effect to handwritten changes made by the testator after the holographic will is completed. Thus, the testator’s changes here will be given effect. It does not even matter that the testator did not sign or initial the changes. The testator’s prior signature is deemed adopted at the time the inter-lineation is made, and all the material terms are in the testator’s own handwriting. These types of interlineations are not given effect if made to an attested will unless they constitute a holographic codicil. If done to an attested will, the additional material would not be given effect, but the crossing out of Ben’s legacy would likely revoke it-leaving Rhonda with the entire state.
Under which doctrine must the will proponent show that an extrinsic document offered for probate was present at the will’s execution and intended by the testator to be a part of the will?
A. Republication by codicil.
B. Integration.
C. Incorporation by reference.
D. Acts of independent significance.
B. Integration.
Under the doctrine of integration, the will proponent must show that an extrinsic document offered for probate was present at the will’s execution and intended by the testator to be a part of the will. The requirements of presence and intent are presumed when there is a physical connection of the pages, (e.g., a staple) or an internal sense of connection shown by provisions running from one page to the next. Under the doctrine of republication by codicil, a will is treated as having been executed (“republished”) on the date of the last validly executed codicil. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will; it must be executed with the same formalities as a will. Since a codicil is a later instrument, it’s presence at the will’s execution cannot be required. Under the doctrine of incorporation by reference, an extrinsic document not present at the time the will was executed may be probated as part of the will if: (i) the document was in existence at the time the will was executed, (ii) the will sufficiently describes the document to permit its identification, and (iii) there is satisfactory proof that the proffered document is the one described in the will. Under the doctrine of acts of independent significance, a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will
A decedent may dispose of items of tangible personal property in a writing that does not comply with all of the requirements for incorporation by reference if certain other requirements are met. Each of the items below represent one of those requirements EXCEPT:
A. The writing must be dated.
B. The writing must be in the testator’s handwriting or signed by the testator.
C. The writing must be in existence when the will is executed.
D. The writing must describe the items and recipients with reasonable certainty.
C. The writing must be in existence when the will is executed.
Lists disposing of items of tangible personal property are valid if: (i) an unrevoked will refers to the writing; (ii) the writing is dated and is either in the tesator’s handwriting or is signed by the tesator; (iii) the writing describes the items and recipients with reasonable certainty. The writing need not be in existence when the will is executed (i.e., it may be prepared before or after the execution of the will), and it may be altered by the testator after its initial preparation.
Is a will valid that provides that the testator’s property is to be distributed in accordance with the subsequently executed will of another person valid?
A. Yes, under the doctrine of incorporation by reference.
B. Yes, under the doctrine of acts of independent significance.
C. No, because the making of a will is a testamentary act.
D. No, because a pour-over gift may be made only to an inter vivos trust, not another person’s will.
B. Yes, under the doctrine of acts of independent significance.
A will providing that the testator’s property is to be distributed in accordance with the subsequently executed will of another person is valid under the doctrine of acts of independent significance. The doctrine provides that a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will. The doctrine has been used with regard to acts of the testator as well as to acts of third persons. If a testator directs that his property be distributed in accordance with the will of another person whose will has already been executed and the other requirements of incorporation are met (i.e., the testator’s will sufficiently describes the other person’s will to permit its identification and manifests an intent to incorporate the other person’s will), the other person’s will can be incorporated into the testator’s will by reference. However, since the question provides that the other person’s will was executed subsequently, incorporation by reference cannot apply. If, as here, the property is to be disposed of as provided in the future will of another, the doctrine of acts of independent significance applies, and the gift is valid. Although the other person’s making of a will is a testamentary act, it has significance independent from disposing of the original testator’s property, i.e, it directs the disposition of the other person’s estate. A pour-over gift is a gift from a will to an inter vivos trust. Merely directing that property be disposed of according to the will of another does not constitute an attempted pour-over gift to another’s will.
Which of the following assets may be disposed of by will?
A. Life insurance proceeds.
B. Property held in a joint tenancy.
C. Property held in a Totten trust.
D. The testator’s share of community property with right of survivorship.
C. Property held in a Totten trust.
A Totten trust, which is a bank account trust that arises when a party deposits money “in trust” for another party. If not revoked, the money passes to the beneficiary on the depositor’s death. However, a Totten trust may be revoked by the depositor’s will. However, a will generally cannot make a gift of nonprobate assets, i.e., interests that pass at death other than by will or intestacy. There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust. Life insurance proceeds (and death benefits under an employee retirement plan) are payable to the beneficiary designated by the insured (or employee) in his contract with the life insurance company (or retirement plan carrier). Property held by the decedent and another person as joint tenants with right of survivorship pass directly to the survivor outside the probate process. Community property with right of survivorship, like joint tenancy property, passes directly to the survivor outside of probate when an owner dies (unlike other community property where the decedent’s half can be devised by, e.g., his will).
All of the following statements concerning revocation by a subsequent instrument are true EXCEPT:
A. The terms of a prior will are nullified by inconsistent provisions in a subsequent instrument.
B. The revoking instrument must make a disposition of property.
C. A holographic will can expressly revoke a formal will.
D. A revoking instrument that does not dispose of property need not be attested.
B. The revoking instrument must make a disposition of property.
A revoking instrument need not dispose of property to be valid. A testator can simply execute an instrument stating that his will is revoked. If he fails to execute another will, his estate will pass under the intestacy laws. If a testator executes a will and subsequently executes a second will that does not expressly revoke the first will, the second will controls and impliedly revokes the first will to the extent of any inconsistent provisions. The two instruments are read together to the extent possible; i.e., the second instrument is treated as a codicil to the will. A revoking instrument must be executed with the formalities required for execution of wills. Since a holograph is a method of valid execution, any will may be revoked by a holographic will or codicil.
Assuming the requisite intent, in which of the following circumstances has the will been revoked by physical act?
A. The will is found in a sealed envelope marked “VOID” on the outside.
B. The will is found with the testator’s signature crossed out.
C. A codicil to the will is found burned in its entirety.
D. An unexecuted copy of the will is found torn to pieces.
B. The will is found with the testator’s signature crossed out.
Assuming the requisite intent, a will found with the testator’s signature crossed out has been revoked by physical act. A will may be revoked by physical act by burning, tearing, cutting, obliterating, or canceling a material portion of the will with the intent to revoke. Words of cancellation must touch the words of the will; thus, writing the word “VOID” on the outside of the envelope containing the will is ineffective to revoke the will. Although burning an entire will is a sufficient act of revocation, a physical act of revocation performed on a codicil revokes only the codicil, not the prior will. Likewise, although tearing a will to pieces is a sufficient act of revocation, the destruction of an unexecuted copy of a will does not revoke the will, even if accompanied by the requisite intent. But where a will has been executed in duplicate (i.e., both copies are signed), an act of revocation performed on either copy revokes the will.
