Wills and trusts

Question 1

testamentary trust rule

Answer 1

for a valid testamentary trust, there must be
(1) an intent to create a trust,
(2) a beneficiary
(3) trust property,
(4) and a valid trust purpose

• there must also be a trustee but it wont fail for lack of one

Question 2

Where may you get the essential elements of a testamentary trust from?

Answer 2

(1) the terms of the will, (2) an existing writing incorporated by reference, or (3) the exercise of a power of appointment created in the will.

Question 3

Charitable trust rules

Answer 3

(1) they must be for a charitable purpose
(2) they may be perpetual
(3) the cy pres doctrine applies when necessary
(4) they are usually enforceable by the atty general

Question 4

Mixed trust def

Answer 4

when the beneficiaries of a single trust are both charitable and noncharitable, the trust is a mixed trust and the charitable trust special rules do not apply

Question 5

If mixed trust, two separate trusts will be found if…

Answer 5

there is some indication as to
(1) how much of the corpus the settlor intended to be applied towards charitable purposes, OR
(2) how long the settlor intended the corpus to be applied towards charitable purposes

Question 6

Cy pres elements

Answer 6

(1) when the specific charitable purpose indicate for the settlor is accomplished or becomes impracticable, the court may amend the trust as close as possible to the original one, rather than allow the trust to fail;
(2) the court must decide whether the settlor intended the trust to fail or would have wished the property devoted to a similar use

Question 7

Modification by consent of an irrevocable trust (rule)

Answer 7

an irrevocable trust may be modified by the consent of all current and future beneficiaries if the modification will not impair a material purpose of the trust

Question 8

Who may enforce (i.e. have standing to sue in the matter of) charitable trusts? (in the absence of statutes)

Answer 8

the atty general is the party authorized to bring suit to enforce charitable trusts

Question 9

Testamentary capacity (rules)

Answer 9

(1) a testator has capacity to make a will if they are 18+ and of sound mind
(2) capacity is measures at execution

Question 10

Testamentary capacity (elements)

Answer 10

Testator must have the ability to understand
(1) the nature of their act
(2) the nature and extent of their property
(3) the persons who are the natural objects of their bounty

Question 11

Testamentary capacity evidential concerns

Answer 11

(1) there is a presumption that a testator had capacity; (2) the burden of proof is on the will contestant

Question 12

Revocation of a will (rule) by subsequent instrument

Answer 12

(1) a will may be revoked in whole or in part by implication from the terms of a subsequent instrument; (2) to the extent that a second will makes an inconsistent disposition of property, the terms of the prior will are necessarily superseded or nullified

Question 13

Can a conservator make a will for a conservatee?

Answer 13

Yes, if they have been so authorized by a court.

• this is typically only approved if it is to dispose of property that the conservatee had not disposed of or to make a change due to changed circumstances

Question 14

Undue influence (rule)

Answer 14

the execution or revocation of a will is ineffective to the extent the execution was procured by undue influence

Question 15

California undue influence

Answer 15

There is a statutory presumption of undue influence for any provision of an instrument making a donative transfer to certain persons, including:
(1) the person who drafted the instrument, as well as their relatives;
(2) a person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor (such as a conservator or trustee) when the instrument was transcribed

Question 16

Testamentary capacity of a conservatee (rule)

Answer 16

A conservatee who is mentally competent may make her own will, or may make, amend, or revoke a will made by a conservator

Question 17

Testamentary capacity of a conservatee (evidentiary concerns)

Answer 17

(1) a conservatee does not necessarily lack testamentary capacity;
(2) while a conservatorship creates a presumption of lack of the required mental capacity, it is not conclusive and may be overcome by showing that the testator still met the specific standard for mental capacity

Question 18

When will a CA court enforce a will executed in another state?

Answer 18

When it was valid
(1) in the place of execution
(2) in the testator’s domicile at the time of death; or
(3) under CA law

Question 19

What does CA law require for a will to be valid?

Answer 19

(1) compliance with the statutory formalities
(2) testamentary capacity
(3) testamentary intent

Question 20

What are the statutory formalities for a will in CA?

Answer 20

(1) in writing
(2) signed by T
(3) T must sign in the joint presence of at least two disinterested witnesses
(4) the witnesses must sign while T is still alive
(5) the witnesses must understand that the instrument is a will

Question 21

What is the harmless error doctrine?

Answer 21

if a will is not executed in compliance with the statutory formalities, it may still be enforceable if it can be established by clear and convincing evidence that when the T signed he intended it to be his will

Question 22

When is a holographic will enforceable in CA?

Answer 22

when the signature and material provisions are in the T’s handwriting

*a date is not required but is helpful if another will with inconsistent provisions exists.

Question 23

What is testamentary intent?

Answer 23

T had the present intention at execution to make the instrument his will

Question 24

What does a surviving spouse take if they are not provided for in the will or trust?

Answer 24

their share of CP and QCP + intestate share of SP

Question 25

When will a surviving spouse not receive an intestate share?

Answer 25

(1) Decedent’s omission of spouse was intentional
(2) the decedent provided for spouse by an outside transfer instead
(3) the surviving spouse waived the right to share in the estate by agreement; or
(4) the spouse was a care custodian of the decedent and other circumstances existed

Question 26

What is a surviving spouse’s intestate share? what if they have a child?

Answer 26

(1) if they leave the surviving spouse with one or more children, surviving spouse is entitled to 1/3 of the deceased spouse’s SP;

(2) the decedent’s 1/2 share of community property passes to the surviving spouse

Question 27

What property earned during marriage will be subject to CP laws

Answer 27

only the CP acquired while domiciled in CA

Question 28

If a couple acquired property outside of CA prior to moving, what is it?

Answer 28

Property that would otherwise be CP is actually quasi CP

Question 29

What does a surviving spouse retain of quasi CP in intestacy?

Answer 29

her 1/2 interest in the prop and the deceased spouse’s 1/2

Question 30

What does the omitted child statute do?

Answer 30

If child is omitted , will receive intestate share unless:

(1) intentional omission of child
(2) provided for child otherwise
(3) the T devised all of their estate to the other parent of the omitted child.

Question 31

Nonmarital children

Answer 31

In CA children born out of wedlock have the same inheritance rights as those born in wedlock

Question 32

How to prove parenthood after death

Answer 32

(1) obtain a judgement of paternity (2) this requires clear and convincing DNA evidence taken during the parent’s lifetime

Question 33

What is abatement?

Answer 33

When the estate is not enough to pay all claims against the estate, abatement is the process of reducing testamentary gifts to satisfy competing claims and bequests

• CA’s statuary protection of omitted spouses and issue takes priority and can cause abatement of other bequests

Question 34

Is trust valid?

Answer 34

must have:
(1) intent to create a trust
(2) identifiable corpus
(3) ascertainable beneficiaries
(4) proper purpose
(5) mechanics and formalities

Question 35

Characteristics of charitable or honorary trusts

Answer 35

must have :
(1) indefinite beneficiaries
(2) perpetual in duration and
(3) cy pres doctrine applies

Question 36

What is the method CA uses for calculating intestate shares of property?

Answer 36

per capita with right of representation

Question 37

when will step/foster children be treated as adopted children for inheritance purposes?

Answer 37

(1) relationship began when child was a minor and continued through parties lives; and
(2) clear and convincing evidence shows that the stepparent or foster parent was unable to adopt because of legal barrier

***also adoption by estoppel

Question 38

unworthy heirs

Answer 38

(1) heir kills the intestate
(2) “bad parent”
(3) Abuse or neglect of elder or dependent adults

Question 39

how long must heir survive the intestate to inherit?

Answer 39

120 hours

Question 40

Valid will requirements

Answer 40

(1) legal capacity (18+)
(2) testamentary capacity
(3) testamentary intent
(4) formalities (either attested or holographic)

Question 41

survival required if beneficiary under a will

Answer 41

could be a mere instant

Question 42

CA’s anti lapse statute

Answer 42

allows descendants to take by substitution

Question 43

CA, can extrinssic evidence be used to resolve: patent ambiguity; latent ambiguity; or no ambiguity (but the beneficiary thinks there’s a mistake)

Answer 43

yes, yes, yes

Question 44

Revocation by physical act

Answer 44

burning (slightest singing sufficient),
tearing (must touch a material part),
obliterating,
cancelling (drawing lines through words
defacing the signature

+ intent to revoke

Question 45

can a proxy revoke a will

Answer 45

yes, if by testator’s direction and in their presence