Wills

Question 1

Intestate

Answer 1

-When a decedent dies without a will, the decedent’s estate is distributed by intestate succession

Question 2

Heirs

Answer 2

Individuals entitled to take an intestate share are called the decedent’s heirs: two primary heirs are the decedent’s spouse and kids.

Special Case 1: Kids’ Kids: children of a parent can stand in the parent’s place for purposes of intestate succession, we call this representation

Special Case 2: Simultaneous Death
Common Law: an heir’s survival must be be proved by a preponderance of the evidence
Uniform Simultaneous Death Act: when there is insufficient evidence of who died first, the property will pass as though each had predeceased the other. An heir must be proven by clear and convincing evidence to have survived decedent by 120 hours - in CA, only applies to intestacy not wills

Question 3

Community Property - Intestacy

Answer 3

Under intestacy, the surviving spouse is entitled to one-half of the decedent’s CP - means the surviving spouse gets all of the CP

Question 4

Separate Property Intestacy

Answer 4

Spouse + 0 = gets entire estate

Spouse + 1 (lineal descendent, or by a parent or issue of the parent)= gets 1/2, and 1/2

Spouse + 2 = 1/3, and 2/3rd to the other issue

Question 5

No heirs - Intestacy

Answer 5

Property escheats to the state

Question 6

Issue

Answer 6

Decedent’s lineal line (children, grandchildren, great-grandchildren)

There must be a parent-child relationship

Adoption Counts -

Special Case 1: stepparent adoption, usually does not prevent adoptee from inheriting from the other biological parent

Special Case 2 - posthumously-born children, arises when child is conceived before death but is born after the death of the mom’s husband. IF child born within 300 days of the husband’s death, refutable presumption that the child is the husband’s and will inherit [if child is born more than 300 days after the husband’s death, child has to prove parentage]

Question 7

Per Capita Method to Calculate Intestate Share

Answer 7

Applies when surviving issue are of equal degree of kinship (all in the same generation)

Each survivor takes an equal share

Question 8

Per Capita Representation

Answer 8

When a child dies but is survived by issue, the issue stands in the place of the deceased child

Three steps:

1. Divide the estate equally at the first generation where a member survives the decedent
2. IF there are deceased members at that generation, their shares drop down to their surviving issue
3. IF a deceased member has no surviving issue, the member does not take a share.

Question 9

Disinherited CHildren

Answer 9

Must be done by a properly executed will, otherwise will receive intestate share. If disinherited, treated as if they predeceased the decedent.

Question 10

Formal Wills

Answer 10

A valid will must be:

1. Signed writing
   - no oral wills permitted in CA, signature can be located on any part of the will, court may not give effect to the words after the signature.
   - most important is that the testator intended her name to be her signature
2. Testator must have capacity
   - at least 18 years old, and of sound mind
3. Witnesses
   - Signed in the presence of at least two witnesses

• CA uses the conscious presence test - party observing the act must be aware that the act is being performed, don’t need to actually observe it
• Witnesses must also sign the document, but doesn’t have to be at the same time
• Generally should be disinterested, if there was an interested witness and there were not two other disinterested witnesses who also signed the will, presumption is created that the interested witnesses exerted undue influence, if rebutted can inherit under the will, if not, can still inherit amount he would have received under intestate succession

3. Testamentary Intent
   - Testator must have the present intent to make a testamentary gift

Question 11

Compliance with will formalities

Answer 11

CA uses the Substantial Compliance Test: Court will nevertheless admit the will to probate if there is clear and convincing evidence that the decedent intended the document to serve as her will despite a lack of compliance with will formalities, but does not apply to signature of testator

Question 12

Holographic Will

Answer 12

-Handwritten will, does not have to be witnesses, must be signed by the testator and all material terms must be in the testator’s handwriting, also has to be testamentary intent

Question 13

Codicil

Answer 13

A codicil is a supplement to a will. It does not replace the underlying will.

Republication Date: A validly executed codicil republishes a will as of the date of the codicil.

Example 2: A will is created in 2000. A valid codicil to the will is executed in 2002. The date of publication of the will (including the codicil) will now be considered 2002.

Cure Invalid Will: A valid codicil executed after the original will cures any problems that existed at the execution of the will, including an interested witness. The interested witness will not be considered an “interested witness” anymore and he/she will take under the terms of the new codicil. (See Interested Witness section, above.)

Question 14

Will Substitutes (AVOIDS PROBATE)

Answer 14

1. Joint Tenancy - right of survivorship
2. Revocable Trust - intervivos transfer
3. Pour-over will - distributes property under the trust
4. Payable on Death Calauses - inter vivos transfer
5. Deed - intervivos transfer

Question 15

Revocation of Wills

Answer 15

-Wills are ambulatory, meaning they can be changed at any time up until testator’s death

Three ways to revoke a will in CA

1. Subsequent Instrument
2. Physical Act
3. Operation of Law

Question 16

Subsequent Instrument Used to Revoke a Will

Answer 16

Express Revocation

Inconsistency - so long as it is validly executed, the later document controls

Question 17

Difference between a new will and a codicil

Answer 17

If the original will had a residuary gift and the later writing does not, the later writing is likely a codicil.

If the original will did not have a residuary gift and the later writing does, it is likely a new will

Question 18

Revocation By Physical Act

Answer 18

1. Tearing, burning, or crossing out the document
2. With intent to revoke the will
3. Lost wills: if a will once known to exist, cannot be found at the testator’;s death, this creates a rebuttable presumption that the testator revoked the will by physical act.

Burden is on the proponent to show the will’s existence by clear and convincing evidence; duplicate originals can be admitted to probate but photocopies of the will cannot

Question 19

Revocation By Operation of Law

Answer 19

1. Divorce or dissolution of a registered domestic partnership will revoke all will provisions in favor of the former spouse or partner, unless there is evidence that the testator wanted those provisions of the will to survive. Separation without divorce does not affect he rights of the surviving spouse.

Question 20

Revocation of Codicils

Answer 20

By revoking a will, the testator also revokes any codicil attached to the will.

The same is not true for revoking a codicil, if testator revokes a codicil, the underlying will is revived in its original form

Question 21

Revival

Answer 21

No automatic revival, must re-execute a will to revive it

BUT can use the Dependent Relative Revocation Doctrine to revive the will when it was revoked on the basis of a mistake

Question 22

Dependent Relative Revocation

Answer 22

Mistake can be a mistake of law or a mistake of fact.

Mistake must have caused the revocation in the first place.

Question 23

Interpreting Wills

Answer 23

1. Plain meaning doctrine - extrinsic evidence is not admissible, don’t go beyond four corners of the document
2. Incorporation by Reference: A will may incorporate an extrinsic document that is not testamentary in nature, provided: 1) document is in existence at the time of the execution; 2) the testator intends the document to be incorporated into the will; and 3) described in the will with sufficient certainty as to permit its identification

In CA, the writing need not exist at the time the will was executed if it only disposes of the T’s personal property (in other words, the testator can write a will referencing another document and then create the document later).
o A holographic will or codicil can incorporate a handwritten or typed document.
o A validly executed codicil can incorporate an invalid will and make the terms of the will valid.

Question 24

Lapse and Anti-Lapse Staute

Answer 24

If a beneficiary dies before a testator, CA uses an anti-lapse statute so that the surviving issues of the beneficiary may take the gift, as long as the lapsed gift was intended for a relation of the testator and the beneficiary is survived by issue. If it lapses, it goes to testator’s residuary estate. If no residuary estate, it goes to intestate.

Class Gifts: gift will not lapse if one member of the class dies regardless of relation to the testator, the rest of the class will inherit the member’s gift. However, if the class member is covered by CA’s anti-lapse statute, then the statute controls.

Question 25

Specific Gift

Answer 25

A gift of particular piece of property

Question 26

General gift

Answer 26

A gift of property satisfied from general asses

Question 27

Demonstrative Gift

Answer 27

A general gift from a particular source

Question 28

Residuary gift

Answer 28

Anything left over

Question 29

Ademption by extinction

Answer 29

Applies when a will makes a specific devise of property, but that property is no longer in the estate at the testator’s death.

Under traditional rule, gift was extinct and devisee takes nothing

CA rule: intent theory, look o the testator’s intent at the time that she disposed of h property, courts will try to avoid ademption and look for replacement property

Question 30

Ademption by Satisfaction

Answer 30

Applies when a testator satisfies a general, specific, or demonstrative gift, either in whole or in part, by an inter vivid transfer.

For the gift the be satisfied, one of the following must be present:

1. Instrument provides for the destruction of the lifetime gift from the at-death transfer;
2. The testator expressed intent to deem in a contemporaneous writing that is signed by testator;
3. Transferee acknowledged in writing that lifetime gift satisfies the at-death transfer; or
4. Property given is the same property subject to the specific gift

Question 31

Latent and Patent Ambiguities

Answer 31

Latent: ambiguous not on the face of the document

Patent: ambiguous on the face of the document

CA law allows both forms of ambiguities to be resolved by extrinsic evidence

Question 32

Mistakes

Answer 32

Courts are less forgiving about mistakes, an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake

Question 33

Limitations on the Testator’s Ability to Transfer

Answer 33

1. The rights of the testator’s spouse
2. Gifts to the testator’s children
3. Slayer and Disclaimer

Question 34

Rights of Surviving Spouse

Answer 34

1. Elective share - if surviving spouse is unhappy with his or her share under the will or intestacy, the spouse can elect to take a forced share, can change or disrupt gifts to other beneficiaries, no elective share in CP states
2. CP: one-half of the CP estates can be dispose of in a will by the testator, and only one half
3. Omitted Spouse/Partner - if a will was executed before marriage, the omission is treated as a partial revocation, omitted spouse/partner takes an intestate share, but can only take up to one-half of the SP

Question 35

Advancements

Answer 35

An advancement is a lifetime gift to a child that is treated as satisfying all or part of the child’s intestate share.

In CA, a gift is an advancement only if: the decedent declared in a contemporaneous (at the time) writing that the gift was an advancement (or the heir acknowledged as such in writing); OR

The decedent’s or heir’s writing otherwise indicates that the gifts should be taken into account when computing the division of property of the decedent’s estate

Use HOTCHPOT analysis to calculate

1. Add the value of the advancements back into the intestate estate
2. Divide the resulting estate by the number of children taking
3. Deduct the child’s advancement form the child’s intestate share

Question 36

Omitted Children

Answer 36

Intentional disinheritance, if done so intentionally, a parent is free to disinherit his children

Unintentional disinheritance”oops”: CA has a special rule, omitted child receives an intestate share, regardless of whether the first child takes a share under the will

Question 37

Slayer Rule

Answer 37

A person cannot profit from murdering another, and will be bared from taking under the decedent’s will, treated as predeceasing the testator, anti-lapse will not apply to their issue.

Has to be an intentional or felonious murder, not involuntary manslaughter or self-defense cases.

Question 38

Disclaimer

Answer 38

A person may disclaim a testamentary gift, usually for tax purposes.

Valid disclaimer must:

1. Be in writing, signed, and filed with the court, or declared to the person distributing the estate; AND
2. Identify the decedent, describe the interest being disclaimed, and define the extent of the discalimer

Have to disclaim within nine months of the testator’s death

Question 39

Elder Abuse

Answer 39

IN CA, someone who is convicted of financial exploitation, abuse, or neglect of a person under their care is prohibited from inheriting from that person

Question 40

Will Contests

Answer 40

Objections to the validity of the will, usually has to do with testator’s capacity. Only interested parties have standing to challenge a will, any one who might get a financial benefit under the will or who would take under intestate succession

Have to challenge probate within 120 days after probate is opened or the claim is barred

Question 41

General Testamentary Capacity

Answer 41

1. Contestant bears burden of proving testator lacks capacity at the Tim of the execution of the will

Look at whether had the CAPACITY TO KNOW: the nature of the act; nature and character of her property’ natural objects of her bounty; and the plan of the attempted disposition

Question 42

Insane Delusion

Answer 42

An insane delusion is a false belief to which the testator adheres despite all reason and evidence to the contrary

May have general capacity, but still have an insane delusion as to a specific belief

Objective Test: Would a rational person reach the same conclusion?

Causation: “but-for” cause of the testamentary disposition

But for the insane delusion, testator would not have done X.

Question 43

Undue Influence

Answer 43

Contestant challenges the will alleging that a third party effectively controlled the testator’s decision-making process (caused the testator to make the particular property division)

As of 2014, all relevant CA statutes define undue influence as consisting of excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. The court must consider four factors in determining whether undue influence has been exercised, including (i) the vulnerability of the victim, (ii) the influencer’s apparent authority, (iii) the actions or tactics used by the influencer, and (iv) the equity of the result. Once a will is determined to have been the product of undue influence, it may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered thereby.

Question 44

Presumption of Undue Influence

Answer 44

A presumption of undue influence arises when the principal beneficiary of a will:

1. Has a confidential relationship with the testator
2. Actively participated in making the will; and
3. the gift is unnatural

If contestant meets this burden, the burden shifts to the proponent (beneficiary) to show by clear and convincing evidence that there was no undue influence

Consequences: if there was undue influence, the beneficiary is treated as if he o she predeceased the testator to the extent th elfin exceeds the beneficiary’s intestate share, if any

*key is causation

Question 45

California Statutory Presumptions

Answer 45

• In CA, a gift to any of these beneficiaries is rebuttable presumed invalid:

1. The drafter of the will;
2. A fiduciary who transcribed the will or caused it to be transcribed;
3. A care custodian of the testator who is a dependent adult, if the will was executed when services were provided or within 90 days thereafter;
4. a person connected to the drafter, transcriber, or care custodian; or
5. a partner or employee of the law firm of the drafter or transcriber

This can be rebutted by clear and convincing evidence

Question 46

Fraud

Answer 46

Contestant has the burden to show that the beneficiary engaged in an unlawful misrepresentation at the time of the execution

1. Contestant must show that the beneficiary made the representation with: intent to deceive the testator and the purpose of influencing the testatmentary disposition

Fraud in the Inducement: Misrepresentation causes the testator to make a different will than the testator would have otherwise made

Fraud in the Execution: misrepresentation as to the character or contents of the will

Remedy: a constructive trust is the most common remedy

Question 47

Probate and Administration

Answer 47

The probate process:

1. Classify all property as probate or non-probate
2. Identify testate and intestate property
3. If property not devised in a will, goes through intestate

The county in which he decedent was domiciled at the time of death has jxn over the decedent’s estate (both real and personal property) if the decedent owns Ralfs property elsewhere, ancillary jan applies

Question 48

Abatement

Answer 48

If the estate does no have enough assets to satisfy the gifts in the will, the gifts will be reduced in a specific order:

1. Intestate property
2. Property in a residuary gift
3. General bequests to people other than relatives
4. General bequests to relatives
5. Specific bequests to people other than relatives
6. Specific bequests to relatives

Question 49

Creditors

Answer 49

Non-claim statute: a creditor must make a claim on the decedent’s estate within a certain time period. IF a claim is not brought within that window, the claim is barred. The personal representative must provide notice to the creditors.

Question 50

Forfeiture Clauses

Answer 50

A non-contest clause expressly stated in the will. It provides that if the beneficiary contests the wills he will lose her share under the will. Enforceable in CA, but subject to strict construction - only enforced against contests without any probable cause

Question 51

Personal Representative

Answer 51

Appointed by the court - estate administrator

Named in the will - estate executor

Question 52

Personal Repräsentative

Answer 52

Inventory, appraise, and manage the estate
Locate and contract interested parties, including creditors
Satisfy debts
Distribute he remaining assets
Close the estate

Duties owed by he Personal Representative

• Personal representative is a fiduciary and owes the duties of loyalty and care
• Personal represents cant engage in self-dealign and cannot do business with the estate
• entitled to reasonable compensation from the estate.

Question 53

Doctrine of Integration

Answer 53

Through the doctrine of integration, the will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown either by physical connection of the pages or by the ongoing nature of the language of the will.

Question 54

Vulnerability of Victim

Answer 54

Evidence of vulnerability may include, but is not limited to, incapacity, illness, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew of, or should have known of, the alleged victim’s vulnerability.

Question 55

Evidence of Apparent Authority

Answer 55

Evidence of apparent authority may include but is not limited to, status as a fiduciary, family member, care provider, health care or legal professional, spiritual adviser, expert, or other qualification.

Question 56

Evidence of Conduct

Answer 56

Evidence of conduct may include, but is not limited to the following: (a) controls necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; (b) use of affection, intimidation, or coercion; (c) initiation of changes in personal or property rights and use of haste or secrecy in effecting those changes

Question 57

Interested Witness

Answer 57

A witness who has a financial interest in the will is an “interested witness”.

In CA, a will be valid despite the presence of an interested witness.
a) Rebuttable Presumption: However, a rebuttable presumption is created that the interested witness/devisee exerted undue influence over the testator. If the presumption is not rebutted, the witness takes his/her intestate share of the will (the witness will not take under the terms of the will).

Question 58

Republication by Codicil

Answer 58

b) Republication by Codicil
A valid codicil executed after the original will cures any interested witness problems
that existed during the execution of the original will. The interested witness will not
be considered an “interested witness” and he/she will take under the terms of the
new codicil.

Question 59

Choice of Law

Answer 59

If a will is validly executed in another state, the will be treated as valid in California. If a will is not validly executed another state, but the decedent is domiciled in California and dies in California, his/her will is treated as valid if it meets the California requirements.

Question 60

Republication

Answer 60

Revocation of a later will or codicil that revokes the original will revives the original will if there is
proof that the testator intended to revive the original will. If the later will or codicil is revoked by
physical act, extrinsic evidence of testator’s intent to revive the original will is admissible.