Wills & Estates

Question 1

When is a Will valid under California law?

Answer 1

If it’s valid under:

a) California Law;
b) The law of the state where the will was executed; OR
c) The law of the state where the testator is domiciled at the time of his death.

Question 2

What are the Will execution requirements?

Answer 2

1) A writing concerning the distribution of property;
2) Signed by the testator;
3) Witnessed by two disinterested persons;
4) The witnesses must sign during the testator’s lifetime; AND
5) The witnesses MUST understand that they signed the

testator’s will.

Question 3

What is a Holographic Will?

Answer 3

A will that is handwritten and signed by the testator, but NOT witnessed.

*It is valid if:

1) Signed by testator; AND
2) All material terms are in testator’s handwriting.

Question 4

Under what circumstances does a lack of date for a Holographic Will affect its validity?

Answer 4

When:

a) There is an issue with testamentary capacity; OR
b) There is a possibility that two or more wills should be probated that are inconsistent.
a. In this instance, the holographic will is invalid in the extent of the inconsistency.

Question 5

Under the Doctrine of Integration, when is a document integrated into a Will?

Answer 5

If the testator:

1) Intended it to be part of the will; AND
2) The document was physically present (existed) at the time of the will’s execution.

*Integration may be proven by extrinsic evidence or witness testimony.

Question 6

What is a Codicil?

Answer 6

An instrument made AFTER a will is executed that modifies, amends, or revokes portions of a will (a codicil MUST satisfy the same formalities as a will to be valid).

*Execution of a codicil republishes the will and cures any interested witness problems.

Question 7

When is a Holographic Will or Codicil valid under California law?

Answer 7

If it is signed by the testator AND all material terms of the will are in the testator’s handwriting.

(Material terms include the name of the beneficiaries and the gifts they will receive)

Question 8

When will a document/writing be Incorporated by Reference into a Will?

Answer 8

If it:

1) Was in existence at the time the will was executed;
2) Issufficiently described in the will; AND
3) The testator intended to incorporate it into the will.

*To incorporate into the will, it must be signed by the testator AND describe the item and the recipients

Question 9

When is a Will revoked by physical act?

Answer 9

If the testator:

1) Intended to revoke the will; AND
2) The will is burned, torn, destroyed, or cancelled by the testator.

*A will executed in duplicate, is ALSO revoked if ONE of the duplicates is revoked by physical act.

Question 10

What property may a married person “gift” in their Will?

Answer 10

Only:

1) their share of the community property; and
2) any separate property they own (i.e. acquired prior to marriage or inheritance).

Question 11

How may a testator revoke a will?

Answer 11

By executing a subsequent valid will or codicil.

Question 13

What is the Dependent Relative Revocation Doctrine, and when does it apply?

Answer 13

It cancels a previous revocation that was made under a mistaken belief of law or fact by the testator.

The doctrine applies when the testator would not have revoked his original will but for the mistaken belief that another will would be valid.

Question 14

Revival of Revoked Wills

By Physical Act

vs.

Subsequent Instrument

Answer 14

Physical Act: Will be revived if a testator shows intent for its revival.

Subsequent Instrument: Revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities.

Question 15

How may a testator make a partial revocation of a will?

Answer 15

By lining through or crossing out a portion of it. However, they cannot increase a gift in a will by partial cancellation.

*Partial revocation of a holographic will is done through interlineation (writing between the lines).

Question 16

How is an estate divided using
Per Capita by Representation Distribution?

Answer 16

It’s divided into as many equal shares as there are:

1) Surviving descendants in the generation nearest to the decedent; AND
2) Deceased descendants in the same generation who left surviving descendants (if any).

Each surviving descendant in the nearest generation is allocated one share. The remaining shares of each deceased member of that generation are divided in the same manner among the then living issue.

Question 17

How is an estate divided using Per Stirpes Distribution?

Answer 17

The estate is divided equally among beneficiaries.

If the beneficiary predeceased the testator: Their share passes to any surviving descendants (divided equally among them), if no descendants then the share goes to the other beneficiaries equally.

Question 18

What is an Anti-Lapse Statute, and when does it apply?

Answer 18

A gift will NOT lapse (return to the residuary estate to be distributed under intestate succession rules) but instead pass to the deceased beneficiary’s issue.

Applies only if the deceased beneficiary:

1) Was related by blood to the testator;
2) Was survived by issue; AND
3) There is no contrary intent.

Question 19

When does a specific gift fail by extinction? (Ademption)

Answer 19

If the testator DOES NOT own it at the time of death. Occurs if they make a specific gift, but the property is later destroyed or sold before their death (does not apply to general or demonstrative gifts).

*In CA, a specific gift is adeemed only if the testator intended the gift to fail.

Question 20

What are the 4 exceptions when property will NOT be adeemed?

Answer 20

1) When stock is changed to another form of stock (i.e. merger);
2) When the executor sells the property;
3) When the testator receives condemnation proceedings and there is no issue of traceability; and
4) If the specific gift is destroyed, the beneficiary is entitled to unpaid insurance/recovery for injury to the property.

Question 21

What is Abatement?

What is the Abatement order?

Answer 21

The process of reducing gifts when assets are insufficient to cover debts, expenses, and gifts.

A testator’s property abates as follows:

1) Residuary gifts
2) General gifts
3) Specific gifts

Question 22

What is a Residual Gift?

Answer 22

A gift of any property remaining after the distribution of the estate to the identified beneficiaries.

Question 23

Specific Gift

vs.

General Gift

vs.

Demonstrative Gift

Answer 23

Specific Gift: One that is specifically identified (i.e. real or personal property).

General Gift: Nonspecific, and can be satisfied from any fundsremaining in the testator’s estate.

Demonstrative Gift: A hybrid, and occurs when the testator makes a general gift, but also identifies a specific source that the gift should come from.

Question 24

Are gifts to an Interested Witness valid?

Answer 24

Gifts to and interested witness (a beneficiary under the will) are presumed invalid.

*If an interested witness cannot overcome this presumption, he will only take his intestate share of the estate.

Question 25

How do Adopted Children inherit from their parents?

Answer 25

They inherit as if they were natural born children.

Question 26

What is an Omitted Spouse entitled to?

(Omitted Spouse = surviving spouse not mentioned in a will executed before the marriage began)

Answer 26

1) One-half of decedent’s community property and quasi-community property; AND
2) Intestate share of separate property (but not more than one-half).

*The other half of community/quasi-community property already belongs to surviving spouse.

Question 27

When is an Omitted Spouse not entitled to an Intestate Share of the estate?

Answer 27

a) The spouse was intentionally omitted;
b) The spouse was given property outside of the will (in lieu of a disposition); OR
c) The omission was consistent with a valid prenuptial agreement.

Question 28

How is the estate distributed under Intestacy to a Surviving Spouse?

Answer 28

Community Property: One-half of decedent’s community property and quasi-community property.

*The other half of community/quasi-community property already belongs to surviving spouse.

Separate Property: Goes to surviving spouse as follows:

• Entire Share – if no surviving issue, parent, siblings, or issue of siblings.
• One-Half – if decedent leaves (a) only 1 child or issue of 1 child, or (b) no issue, but parent or their issue.
• One-Third – if decedent leaves (a) 2+ children, (b) 1 child and issue of 1+ deceased children, or (c) issue of 2+ deceased children.

Question 29

Under Intestacy, how are shares NOT going to the Surviving Spouse distributed?

Answer 29

Shares pass to decedent’s issue either:

a) Equally – if all in same degree of kinship; OR
b) Per Capita by Representation.

Question 30

When does a testator have sufficient Testamentary Capacity?

Answer 30

A testator must:

1) Be at least 18 years old;
2) Understand the nature and extent of her property; AND
3) Understand the natural objects of her bounty (relatives/friends).

*Appointment of a conservator alone DOES NOT prove lack of capacity.

Question 31

What are the elements of Undue Influence?

Answer 31

If:

1) Testator had a weakness that made him susceptible to influence;
2) Wrongdoer had access to the testator and an opportunity to exert influence;
3) Wrongdoer actively participated in drafting the will; AND
4) There is an unnatural (unexpected) result.

Question 32

How is the common law presumption of Undue Influence established?

Answer 32

If:

1) A confidential relationship existed between the testator and the wrongdoer;
2) The wrongdoer actively participated in the drafting of the will;

AND

3) There is an unnatural result.

Question 33

In California, how is the statutory presumption of Undue Influence established?

Answer 33

If the testator makes a donative transfer to:

1) Person who drafted the will;
2) A care custodian of a testator who is a “dependent adult”;
3) A person in a fiduciary relationship with the testator;
4) A spouse, domestic partner, employee, or related by blood to one of the previous three circumstances; OR
5) A partner, shareholder, or employee of the firm who drafted the will (or a fiduciary relationship with an ownership interest).

Question 34

When is a will deemed Fraudulent?

Answer 34

If a person:

1) Intentionally made a misrepresentation;
2) Of material fact;
3) In order to induce the testator to either sign the will or change the contents; AND
4) The testator did so.

Question 35

A will is invalid if it’s the result of an Insane Delusion that caused an unnatural result.

When does an Insane Delusion occur?

Answer 35

When the testator:

1) Has a false idea that is not supported by facts; and
2) Refuses to accept evidence contrary to this idea.

Question 36

When are the terms of a Will given effect?

Answer 36

At the time the will is probated OR after the testator’sdeath.

Question 37

How is a “Pretermitted Child” defined?

Answer 37

A child that is NOT mentioned in the will, because it was executed before the child’s birth or adoption.

*They are presumed to have been omitted accidentally, and thus are entitled to an intestate share of thetestator’s estate.

Question 38

When is a Pretermitted Child NOT entitled to an intestate share of the estate?

Answer 38

If:

1) The child was intentionally omitted;
2) The child is supported by transfers outside the will; OR
3) The testator had more than one child and left all (or substantially all) of his estate with the parent of the omitted child.

Question 39

When is an Intentionally Omitted Child entitled to ashare of the decedent’s estate?

Answer 39

If the child was omitted because the decedent was unaware of the child’s existence or believed the child was dead.