Wills

Question 1

Difference between probate property and nonprobate property

Answer 1

Probate property is property that passes through a court supervised process that will determine how the property is distributed. Nonprobate property passes as an operation of law (like life insurance or “pay on death” trust)

Question 2

What is community property?

Answer 2

Community property is property acquired by either spouse as a result of their labor during the marriage. Community property is held in 50/50 shares while alive.

Question 3

What is separate property?

Answer 3

Separate property is property that is owned before marriage, acquired during marriage by gift, devise, or inheritance. Must be kept separate to remain separate

Question 4

How do you determine a surviving spouse’s share?

Answer 4

A surviving spouse will receive 100% of the deceased spouse’s share of community property. A surviving spouse will receive 100% of separate property if there is no issue, parent, or issue of parent; 50% if there is 1 child or no issue, but parent or issue of parent; 33% if there is more than 1 child

Question 5

What is the distribution to issue?

Answer 5

Distribution to issue can fall under one of three categories: per stirpes, per capita with representation, or per capita at each generation. California follows per capita with representation. Under per capita with representation the division is at the first live taker. Each party receives one share and issue of dead taker get one share

Question 6

What are the survivorship requirements?

Answer 6

An intestate taker must survive by 120 hours. In California, an intestate taker must only survive by a millisecond to claim nonprobate property.

Question 7

How does adoption affect the relationship with natural parents and inheritance?

Answer 7

When a child is adopted it cuts off the relationship with the previous/natural parents who will have no access to inheritance from or through the child

Question 8

What does “equitable adoption” do?

Answer 8

The Doctrine of Equitable Adoption allows a parent-child relationship to be recognized in situations where the parties intended to adopt the child but failed to do so

Question 9

How does a child being born out of wedlock affect a parent?

Answer 9

A parent does not inherit from or through a child if any of the following apply: parental rights terminated and not judicially reestablished, parent did not acknowledge the child, or parent left the child during the child’s minority for at least seven consecutive years. (CPC § 6452)

Question 10

What three situations must be met for a testator to have capacity to make a will?

Answer 10

Three situations must be met for the testator to have capacity to make a will: (1) understand nature of the act, (2) understand nature and situation of property, (3) remember and understand his relations with family members that are affected by his will. (CPC section 6100)

Question 11

When is testator capacity evaluated?

Answer 11

Testator capacity is evaluated based on the testator’s capacity at the time of creating the instrument. (Estate of Mann)

Question 12

How does undue influence affect testator’s intent?

Answer 12

When a party unduly influences the testator that party substitutes their intent for the testator’s intent. The testator would not have the capacity to create a valid document if this is the case

Question 13

When is there an assumption of undue influence?

Answer 13

There is a presumption of undue influence when: (1) there is a confidential relationship between the decedent and the alleged undue influencer (2) the alleged undue influencer was active in the procurement or execution of the will (3) the alleged undue influencer “unduly benefits” from the will

Question 14

What is the difference between fraud in the inducement and fraud in the execution?

Answer 14

Fraud in the inducement: When the will says what the testator wanted it to say but the intent was induced by fraudulent misrepresentations.

Fraud in the execution: The testator is deceived into signing the document.

Question 15

How does an interested drafter affect a will?

Answer 15

CPC 21380: A donative transfer to any of the following people is presumed to be the product of fraud or UI: (a) The person who drafted the instrument (b) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor (c) This presumption changes the burden of proof and can be rebutted by proving with clear and convincing evidence that the donative transfer was not the product of fraud or UI. CPC 21382 says that CPC 21380 does not apply when: the person is related by blood or affinity or is a cohabitant of the transferor, the instrument is drafted or transcribed by a person who is related by blood or affinity, or the instrument is approved

Question 16

When is a no-contest clause enforced?

Answer 16

A no contest clause shall only be enforced against direct contest that is brought without probable cause. (CPC 21311)

Question 17

What are the requirements for an attested will?

Answer 17

An attested will must be in writing, signed, and witnessed

Question 18

What is the writing requirement for an attested will?

Answer 18

An attested will must be in a writing that is in any tangible form.

Question 19

What is the signature requirement?

Answer 19

A signature is any mark that the testator intends to be a signature

Question 20

What is the witness requirement?

Answer 20

A will must be witnessed by at least two people who are present at the same time. The witness can satisfy the requirement through the conscious presence rule or the line of sight rule.

Question 21

What is the conscious presence rule?

Answer 21

Conscious presence is established when three requirements are met: (1) the witness can hear the signing, (2) the testator knows what is being done, and (3) the testator and witness sign during the same transaction. (CA FOLLOWS THIS RULE, NOT LINE-OF-SIGHT)

Question 22

What is the line-of-sight rule?

Answer 22

The line of sight rule is satisfied if the witness can see the signing happening.

Question 23

Who is an interested witness and how do they interact with the will?

Answer 23

An interested witness is someone who will benefit from the will. This creates a rebuttable presumption that the witness will be “purged” from the will. When the witness is purged from the will the witness cannot receive anything more than what the witness would receive under the rules of intestacy.

Question 24

What are the requirements of a holographic will?

Answer 24

A will is valid as a holographic will if the signature and the material provisions are in the handwriting of the testator even if there is no witness.

Question 25

What does extrinsic evidence do for a will?

Answer 25

Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 [Attested Will] or 6111 [Holographic Will], or to determine the meaning of a will or a portion of a will if the meaning is unclear

Question 26

What are the categories of will revocation?

Answer 26

Express revocation and implied revocation. both can be by act or by writing.

Question 27

What is express revocation by writing?

Answer 27

A subsequent will which revokes the prior will or part expressly or by inconsistency

Question 28

What is express revocation by act?

Answer 28

A will that is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either the testator or another person in the testator’s presence and by the testator’s direction

Question 29

What is implied revocation by writing?

Answer 29

If a testator creates a new will or codicil that is valid it is presumed the previous will is revoked.

Question 30

What is implied revocation by an act?

Answer 30

It is presumed that the testator destroyed the will with intent to revoke it if the testator’s will was: last in the testators possession, the testator was competent until death AND neither the will nor a duplicate original of the will can be found after the testator’s death

Question 31

How does revocation of a will and a codicil interact?

Answer 31

Revoking a will revokes the entire will including a codicil. Revoking a codicil only revokes the codicil.

Question 32

If a second will is revoked, is the first will “revived”?

Answer 32

If a second will is revoked the first will is not revived unless the testator intended the first will to be revived

Question 33

What is DRR?

Answer 33

Dependent relative revocation = DRR applies when there was a valid will revocation that was based on a mistake and Testator would not have revoked the will but for the mistake

Question 34

What are the various classifications of gifts?

Answer 34

A specific gift is a particular thing. A general gift is a gift that does not give a specific piece of property. A demonstrative gift names a particular fund or asset from which a gift is to be made. A residuary gift is a gift of all remains after general and specific gifts are awarded.

Question 35

What is a lapse for a gift?

Answer 35

When a gift fails because a beneficiary predeceases the testator

Question 36

What is anti-lapse?

Answer 36

When a beneficiary predeceases the testator the issue of the beneficiary takes in his place unless a contrary intention appears in the will

Question 37

What is a class gift?

Answer 37

If a beneficiary is described as a class and a class member predeceases the testator than the remaining class members who survive the testator take the gift

Question 38

What is ademption by extinction?

Answer 38

A specific gift will adeem by extinction when the specific gift is no longer part of the estate at time of the testator’s death.
Rule E: Courts will look at the testator’s intent to determine if the specific gift adeems.
Rule E: A specific gift which changes form will not adeem unless the testator intended the gift to fail.

Question 39

What is ademption by satisfaction?

Answer 39

A gift can adeem by satisfaction if the will provides for deduction of the lifetime gift, the testator or the beneficiary declare in writing that the gift is satisfied, or the same property is given to the beneficiary during his lifetime.

Question 40

Ademption of specific gifts of stock

Answer 40

If the specific gift is stock that the testator owned at time of execution but the stock changed form initiated by the corporate entity then the gift does not adeem and the beneficiary is entitled to the change in number and form of stock (unless testator intended otherwise). If the change in form is initiated by the testator however the usual ademption analysis applies.

Question 41

How does debt affect exoneration?

Answer 41

A specific gift passes the property subject to any debt without right of exoneration unless otherwise indicated in the testamentary intent

Question 42

What does abatement do?

Answer 42

If an estate is unable to pay all debts and legacies then gifts are reduced in order to pay those debts.

Question 43

Who is a pretermitted spouse?

Answer 43

When Testator creates a will and leaves out their spouse, their spouse is pretermitted and therefore entitled to claim on the estate unless the Testator intended to exclude the spouse with the intent appearing in the will.

Question 44

Who is a pretermitted child?

Answer 44

A pretermitted child is one who was born or adopted after the creation of the will and a pretermitted child can inherit from the estate the amount they would have inherited if the decedent left no will.

Question 45

Who is an accidentally omitted child?

Answer 45

If testator failed to provide for a living child solely because the decedent believe the child to be dead or was unaware of the birth of the child then the child shall receive a share in the estate the amount they would have if the decedent left no will.

Question 46

What is the order of abatement?

Answer 46

Order of abatement: property not disposed of in will, residuary gifts, general gifts to nonrelatives, general gifts to relatives, specific gifts to nonrelatives, specific gifts to relatives

Question 47

What is limited harmless error doctrine?

Answer 47

If a will was not executed validly, the will shall be treated as if it was executed in a valid way 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 testator’s will

Question 48

What is integration?

Answer 48

Papers are integrated into the will if they were present at the time of the execution of the will and the testator intended them to be part of his will, such as several writings connected by a sequence of thought, folded together, stapled, or physically forming one document. (Exam tip: Also Talk about Incorporation by Reference)

Question 49

Does a codicil republish a will?

Answer 49

A codicil republishes a will. Republishing the will means that a codicil re-executes and re-dates the will to the date of the codicil

Question 50

What is incorporation by reference?

Answer 50

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification

Question 51

What are acts of independent significance?

Answer 51

Has meaning or independent significance outside a will. It may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will

Question 52

What are tangible personal property?

Answer 52

A will may refer to a writing that directs disposition of tangible personal property (TPP) not otherwise disposed of by the will. The writing must be dated and either be in the testator’s handwriting or be signed by the testator

Question 53

What are the three exceptions to a pretermitted child?

Answer 53

EXCEPTIONS: (1) the child was intentionally omitted as indicated on the face of will; (2) the decedent devised substantially all of the estate to the parent of the omitted child; (3) the decedent otherwise provided for the child outside the will with an intent to do so in lieu of the will