Wills & Trust Flashcards
Intestate Succession
When a person dies without a will or other testamentary instrument, the decedent’s estate will be distributed pursuant to Probate Code section 240 (per capita) and other fact-specific rules of intestate succession.
Probate Code section 240 (per capita) specifies distribution in equal shares to the nearest generation to decedent where someone is then living.
Distribution of Estate: Community Property and Surviving Spouse
The decedent’s spouse will take 100% of the decedent’s half of community property
Distribution of Estate: Predeceased Spouse
If the decedent has no spouse or issue, and he/she received from a predeceased spouse real property less than fifteen years prior to death, or personal property worth $10,000 or more less than five years prior to death, that property will be distributed as follows:
- issue of predeceased spouse
- parents/issue of predeceased spouse
- family of decedent
- family of predeceased spouse
All other property will be distributed as follows:
- spouse & issue
- spouse & parents/issue of parents
- parents/issue of parents
- grandparents/issue of grdprts
- issue of predeceased spouse
- family of decedent
- parents of predeceased spouse/iss
Distribution of Estate: Simultaneous Death
Simultaneous Death
If it cannot be established by clear and convincing evidence that one spouse survived the other, they are legally presumed to have survived each other so that each half of the community property will be distributed to the heirs of each spouse. Any other person must survive a decedent by 120 hours to be considered an heir for the purposes of intestate succession.
Out of Wedlock Children
- In order for a father (or one of his relatives) to take from the estate of an out of wedlock child, paternity must be established.
In order for an out of wedlock child to take from his/her father’s estate, paternity must be established. Under the Family Code, there is a presumption of paternity if the child was born during a marriage or within 300 days of dissolution. [analyze to establish presumption of paternity] Under the Probate Code, paternity must be shown by clear and convincing evidence.
- court order declaring paternity during father’s lifetime
- …that father openly held out child as his own
- …that it was impossible for father to hold out child as his own, and paternity established
A parent or relative will not inherit from or through an out of wedlock child unless the parent or one of his/her relatives acknowledged the child and contributed to his/her support or care.
Foster/Stepchildren
Where a foster/step child is involved, to establish a parent-child relationship for the purposes of intestate succession, it must be shown by clear and convincing evidence that there was a relationship that began during the child’s minority and continued through their joint lifetimes, and that the purported parent would have adopted but for a legal barrier.
Foster/Stepchildren: Equitable Adoption
If a parent-child relationship cannot be established, the court may apply the doctrine of equitable adoption for the benefit of the child, which will create a quasi-contract right rather than a legal right to inherit as an heir.
Adopted Out Children
Adoption severs the relationship between the adoptee and the natural parent unless they lived together as parent and child (or natural parents married/cohabitating at time of conception and one died before birth) and the child was adopted by a stepparent, or was adopted after the death of the natural parent.
Posthumously Conceived Children
A posthumously conceived will be considered the issue of decedent if the decedent specified in a signed and date writing that his genetic material could be used for posthumous conception. The writing must specify who may control the use of the material, and the child must be in utero within two years of the death. The person controlling the material must notify the decedent’s personal representative or executor within four months of a death certificate being issued.
Wills
A will may specify that the estate is to be distributed pursuant to Probate Code section 240 or 246. [240, supra] Courts seek to uphold the intent of the decedent so long as restrictions in a testamentary instrument are reasonable and do not violate public policy.
Probate Code section 246 (by right of representation) specifies distribution in equal shares to the generation nearest the decedent, whether or not anyone in that generation is then living.
CPC § 6100.5. Standard of Competence
(a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.
Challenges to Capacity: Statutory Presumption of Undue Influence (PROHIBITITVE TRANSFEREES)
Challenges to Capacity If undue influence, duress, or fraud is found, the will or tainted portion thereof will be voided.
Statutory Presumption of Undue Influence
Undue influence is presumed if there is a transfer to:
- the person who drafted or transcribed the instrument
- a care custodian of a dependent adult transferor if executed during or within 90 days of the period in which services were provided
- a relative (to third degree), cohabitant, employee, partner, shareholder of the above
The presumption does not apply to:
- transfer to 501 charity
- transfer of $5K or less if estate exceeds $150,000
- an instrument executed outside of CA by then non-resident
- gift certified by independent attorney (see below)
The presumption is conclusive as to drafters, but can be rebutted as to others by clear and convincing evidence.
Challenges to Capacity: Undue Influence – Common Law Approach (MUST SHOW)
The common law approach to showing undue influence may be applied to people not covered by statute, and a finding of undue influence will invalidate the entire will. Short Test
- confidential relationship
- unnatural benefit – undue disposition
- some involvement / act
Long test (must show all)
- highly susceptible testator
- unnatural benefit
- opportunity
- disposition to act wrongfully
Challenges to Capacity: Duress
Duress – coercive undue influence
Challenges to Capacity: Fraud
Fraud – detrimental reliance on misrepresentation of facts (fraud in the inducement) or of the document being executed (fraud in the execution) where there was intent to deceive for the purpose of influencing the testator.
Challenges to Capacity: Independent Certification
Independent Certification A gift is not subject to the presumption of undue influence if the instrument is:
- reviewed by an independent attorney who
- counsels out of the presence of any heir or proposed beneficiary,
- ensures the testator understands nature and consequences of the intended transfer
- attempts to determine if the intended transfer is the result of fraud/undue influence
Statutory Undue Influence Health and Welfare code 15610.70
(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:
(1) The vulnerability of the victim.
(2) The influencer’s apparent authority.
(3) The actions or tactics used by the influencer.
(A) Controlling 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, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
Creation of a Will: Formal Will / Harmless Error Rule
Formal Will
A formal will is a writing, signed by the testator (or in the testator’s name/presence/ direction, or by his conservator), and witnessed by two disinterested persons.
Harmless Error Rule – If the above three are not fulfilled, proponent must establish by clear and convincing evidence that at the time of signing, testator intended to make a will.
Creation of a Will: Witnesses
Witnesses must sign during testator’s lifetime, have been present at the time of testator’s signing or acknowledgment, and understand that the instrument is the testator’s will.
A will or provision is not invalid because it is signed by an interested witness, but unless there are two other disinterested witnesses, a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence.
If unable to rebut the presumption, the witness/devisee will take only by intestate succession.
Creation of a Will:Conditional Will
Generally courts will construe a condition as motivation to execute a will, though conditions tied closely to a bequest or circumstances may invalidate the will.
Creation of a Will: Holographic Will
A holographic will is a will, the material provisions of which are written in the testator’s hand. It must be signed, but witnesses are not required. If the testator lacked testamentary capacity at any time during which the will might have been executed, it will be invalid unless testamentary capacity is established.
Creation of a Will: Acts of Independent Significance
A will may dispose of property by reference to acts that are independent of the will provisions, yet have an affect on the disposition of the estate.
Creation of a Will: Incorporation by Reference
A writing in existence when a will is executed may be incorporated by reference if the will sufficiently describes the writing and manifests intent that it be incorporated.
The writing must be signed or in the handwriting of the testator, with a description of items and recipients to reasonable certainty, not to exceed $5,000 per item and $25,000 total.
Creation of a Will: Republication by Codicil
A codicil is an amendment to a will which revokes provisions of a prior will that are inconsistent with it. The will is considered republished as of the date of the codicil. A codicil republishing an old will may revive a will was revoked, or may serve to revoke a more recent will.
Revocation and Revival § 6123.
(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator’s contemporary or subsequent declarations that the testator intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
Creation of a Will: Extrinsic Evidence
Extrinsic Evidence Extrinsic evidence is admissible to determine whether a document constitutes a will, or to clear up an ambiguity in the instrument itself. [mistake, minimally as to intent]
No Ambiguity:
clear and convincing: mistake in expression of intent at time will drafted
clear and convincing: of actual intent
ESTATE OF DUKE: CHANGED WORLD
Can introduce extrinsic evidence if no ambiguity - “if clear and convincing evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and also establishes the testator’s actual specific intent at the time the will was drafted.”
2 part test – c/c evidence required; focus is at time of drafting (signing)
Creation of a Will: Contracts
A contract to leave property is construed as contract to make a will. To enforce the contract, an action must be files within one year after death.
Revocation of a Will: 2 ways
A will may be revoked in whole or in part by a subsequent will that revokes a prior will expressly or by inconsistency, or by a physical act of destruction by the testator (or person instructed by testator, in his presence, and with intent). If a will was last known to be in the possession of a testator with capacity, but cannot be found after his death, it is presumed destroyed.
- revocation of a will revokes codicils unless intended to stand alone
- revocation of codicil does not affect original will
Amendment and Revocation : Dependent Relative Revocation (DRR)
Revocation of a will is ineffective if the testator would not have made the revocation had he not been mistaken as to law or fact. So, if a will is destroyed under a mistaken belief that a new will is valid, the court will apply DRR and probates the prior valid will.
- when second will gives less, ask whether testator would have preferred all (amount in first will) or nothing; consider amount of differential and argue
Trusts: Non-Probate Transfers: Multiple Party Accounts
During the lifetime of the parties, the ownership interests are in proportion to amounts contributed unless there is clear and convincing evidence of contrary intent. If the account is held in joint tenancy, one party can unilaterally liquidate it, but the other party can seek reimbursement while both parties are alive; heirs have no redress.
Definitions/Terminology: Pour-Over Will
Pour-Over Will – operates as a safety net to move otherwise unidentified assets into trust
Definitions/Terminology: Support Trust
Support Trust – trustee directed to use trust income/principal for benefit of individual
Definitions/Terminology: Spendthrift Clause / Spendthrift Trust
Spendthrift Clause / Spendthrift Trust – terms of trust or statute restrain transfer of beneficiary’s interest to third party; voids attempted assignment
