Wills knowledge questions Flashcards
<p>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 decedent’s 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.</p>
<p>In California, the surviving spouse or domestic partner takes one-half 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 one-half of the decedent's separate property. The share not passing to the surviving spouse passes to the decedent's parents or the surviving parent.
Thus the decedent's mother will take the other one-half 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 predeceased the decedent, the brother and niece would have taken one-fourth each.</p>
<p>How are the intestate shares of descendants distributed?
A Equally.
B Strict per stirpes.
C Per capita with representation.
D Per capita at each generation.</p>
<p>In California, the intestate shares of descendants are distributed per capita with representation; i.e., the 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.</p>
<p>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 sizeable intestate estate and a life insurance policy naming the child as the sole beneficiary.
Who will share in the decedent’s 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’s 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.</p>
<p>In California, a person who fails to survive a decedent by 120 hours is deemed to have predeceased 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 to 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 when 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 predeceased the decedent for purposes of intestate succession. Thus, the decedent's brother is her only heir and will inherit her estate.</p>
Requirements to make a will
The witnesses need not sign in the presence of each other and may sign at any time during the testator’s lifetime. The testator must sign or acknowledge the will or his signature in the joint presence of at least two witnesses, and the witnesses must understand that the instrument being witnessed is the testator’s will.
Result?
A testator executes 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?
Like most states that 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 interlineation 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 estate.
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.
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.
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).
Revocation by subsequent instrument.
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.
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.
Revocation by physical act can be effectuated by obliteration of the will. Which of the following is NOT sufficient to constitute obliteration?
A Drawing lines through the parts the testator intends to revoke.
B Erasing the parts the testator intends to revoke.
C Writing the word “VOID” on the back of the will.
D Drawing a line across the face of the will.
Writing “VOID” on the back of the will would not be sufficient, because the obliteration must occur on a material part of the will.
A will may be obliterated by drawing a line across the face of the will, by drawing lines through words, or by erasing words. For partial revocation, this can be done only to those portions which the testator intends to revoke
In addition to revoking all will provision in favor of a former spouse, dissolution of a marriage also generally revokes the former spouse’s interest in each of the following items EXCEPT:
In addition to bequests under the testator’s will, dissolution of a marriage or domestic partnership revokes nonprobate transfers in favor of the former spouse or partner, such as an interest in a revocable trust or a fiduciary appointment.
It does not, however, revoke a beneficiary designation on a life insurance policy. Dissolution also revokes joint tenancy and community property interests with rights of survivorship; i.e., the interest is severed and there is no longer a right of survivorship.
In which of the following circumstances will the testator’s estate be disposed of according to Will-1?
A Will-2 expressly revokes Will-1. The testator executes a valid codicil whose sole provision revokes Will-2. The testator tells his sister that he is happy Will-1 will dispose of his property.
B Will-2 expressly revokes Will-1. The testator, alone at his lakeside cabin, decides that he prefers Will-1 and proceeds to burn Will-2.
C Will -2 expressly revokes Will-1. The testator shreds Will-2. Two years later, the testator handwrites and signs a document entitled Codicil to Will-1, which makes a devise to his niece.
D Testator burns Will-1 and executes Will-2. Testator later shreds Will-2 and declares in front of witnesses that he is reviving Will-1.
A revoked will still in physical existence may be revived through execution of a subsequent codicil. California recognizes handwritten, unattested (holographic) codicils.
Thus, the codicil republished Will-1, and the testator’s estate will be disposed of according to its terms. In California revival depends on the testator’s intent, the nature of evidence offered to show that intent, and the way the testator revoked Will-2.
(A) does not revive Will-1 because when the revoking instrument is itself revoked by a subsequent instrument (here, a codicil), Will-1 is not revived except to the extent it appears from the terms of the codicil that the testator intended Will-1 to take effect.
Here, the codicil’s only provision revokes Will-2; it does not mention Will-1. Extrinsic evidence, such as the testator’s declarations are not admissible to prove his intent to revive Will-1.
(B) fails to revive Will-1 because even though extrinsic evidence is admissible when the revoking instrument is revoked by physical act, here there is no evidence to introduce. Testator was alone and there is no evidence from the circumstances that he intended to revive Will-1.
(D) is incorrect because a will that was revoked by physical act is not revived by destruction of a later will.
In his duly executed will, a testator bequeaths $10,000 to his friend and the rest of his separate and community estate to his wife. When the will was executed, the testator had a son. Subsequently, the testator and his wife adopted a daughter.
At the testator’s death, his separate estate is worth $300,000. How much is the adopted daughter entitled to take?
A Nothing.
B $200,000.
C $100,000.
D$95,000.
Under California’s omitted child statute, a child born or adopted after the execution of a will is entitled to take her intestate share of the testator’s property.
If an intestate decedent is survived by a spouse and more than one descendant, the spouse takes one third of the separate property and the descendants take two-thirds.
Here, the daughter’s one-third intestate share would be $100,000. However, an omitted child does not receive her intestate share if the testator had one or more children and the time the will was executed and devised substantially all of his estate to the other parent of the omitted child. Here, the testator had a son when he executed his will, and the testator devised nearly all of his estate to the daughter’s other parent. Thus, the daughter takes nothing.
A testator’s will bequeaths property “to my son if he survives me.” The son predeceases the testator and is survived by a wife and a daughter. The son’s will bequeaths all of his property to a charity. Who takes the testator’s property?
A The son’s wife.
B The testator’s residuary beneficiaries.
C The charity.
D The son’s daughter.
Here, the testator’s residuary beneficiaries take the property because the anti-lapse statute does not apply. California’s anti-lapse statute operates to save a gift to a predeceased beneficiary if the beneficiary (i) was kindred of the testator, and (ii) left descendants who survived the testator.
The beneficiary’s descendants take by substitution under the anti-lapse statute; the gift does not pass to the beneficiary’s estate. Thus, the gift would not pass pursuant to the deceased beneficiary’s will. Here, the son is the testator’s descendant and left a surviving descendant (the daughter). If the anti-lapse statute were to apply, the daughter would take the property by substitution; neither the wife nor the charity would have any interest.
However, the anti-lapse statute does not apply when words of survivorship are associated with the gift. Because the bequest was contingent on the son’s surviving the testator and the son predeceased the testator, the gift fails and passes to the testator’s residuary beneficiaries.
Which of the following transfers is most likely to be considered a testamentary transfer that must comply with the requisite will formalities in order to be enforceable?
A contract that disposes of property upon the promisor’s death will most likely be considered a testamentary transfer that must comply with the requisite will formalities in order to be enforceable. A deed deposited in escrow with delivery conditioned upon the grantor’s death may be a valid nontestamentary transfer. Likewise, a joint bank account “with right of survivorship” is generally held effective to give the survivor the absolute right to all of the money outside the probate process.
However, in many states, extrinsic evidence is admissible to show that the dead depositor did not intend a gift to the survivor, and that the account was only a convenience for paying the depositor’s bills. A Totten trust is a deposit of money in the depositor’s own bank account in trust for another person. Such a transfer creates a valid revocable trust, which is a nontestamentary transfer, even though the depositor retains complete control over the account during her lifetime and the transfer is complete only upon her death. The trust is revoked to the extent of withdrawals made by the depositor before her death, may be revoked by the depositor’s will, and is reachable by the depositor’s creditors during her lifetime.
