Wills

Question 1

What is intestate succession?

Answer 1

It is used when there is no will or the will doesn’t dispose of all of the decedent’s property

Passes under mechanical statute rules

Question 2

What are will substitutes? IE: non-probate property?

Answer 2

This is STEP 1: take these out first

This is property that passes outside the intestacy/will process

Includes:
(1) life insurance
(2) JT or TIE
(3) inter-vivos trusts/gifts
(4) gift in view of impending death [reminder that this is revocable]
(5) contracts

Question 3

Under intestate succession, what is the surviving spouse’s share?

Answer 3

STEP 2: after taking out non-probate property

Surviving spouse gets 1/2 of all the CP/QCP and keeps the 1/2 they already have = so they have it all!

*also applies to domestic partners

Question 4

SP + Surviving Spouse [intestate]

Answer 4

Takes 1/3 of SP if the decedent is survived by:
-more than one child
-one child and the descendant of one or more deceased ids
-the descendants of two or more deceased children

Takes 1/2 of SP if the decedent is survived by:
-one only child
-the descendants of a deceased child, or
-no descendants but a parent or the descendant of a parent

Takes ALL of SP if:
-no surviving descendants, parent, sibling, or descendant of a deceased sibling

Question 5

What do the rest of the descendants get?

Answer 5

everything that does not go to the surviving spouse

Question 6

How is property distributed to the descendants?

Answer 6

All descendants have the same degree of relationship [ex: all children, or all grand kids]: each one receives a per-capita share (usually one share)

Descendants with unequal degrees of relationship:
property passes per capita with right of representation–in this case: there will be least one descendant who dies before decedent and one who survives

Distribution Rules:
(1) divide the property into equal shares a the first generation with at least on surviving member
(2) share created for deceased member of the first gen passes in the same manner to their decedents

Question 7

What happens if there are no descendants?

Answer 7

All property not going to surviving partners goes like this:
(1) Parents: ½ each (or all to surviving parent)
(2) No parentsdescendants of parents (sister and brother + descendants) in per capita
(3) Grandparents + their descendants (aunts, uncles, cousins) in per capita
(4) Descendants of pre-deceased spouse (step-kids) in per capita
(5) Next of kin–more distance relatives if no one else is around
(6) Parents of predeceased spouse or their descendants (mother-in-law)
(7) Escheat to state

Question 8

What is the special rule for property inherited from a pre-deceased spouse?

Answer 8

If the surviving spouse dies without descendants–the following property that was received from previously deceased spouse will pass to the previously deceased spouses heirs inside of the surviving spouses heirs:

(1) Real property–unless deceased spouse died at least 15 years before
(2) personal property worth over 10,000 unless the deceased spouse died at least 5 years before

Question 9

How does it work with adopted kids? [intestate]

Answer 9

Works the same as any other child of the parents. No difference

Question 10

How does it work with biological parents of adopted children? [intestate]

Answer 10

generally adopted kids do not inherit from their biological parent or relatives unless the adoption is by a step-parent

Vice versa too–bio parents do not inherit from adopted kid unless by a step-parent

Question 11

How does it work with step-children + foster children? [intestate]

Answer 11

Will be treated as adopted children if:
(1) relationship began when child was a minor and continued throughout their joint lives AND
(2) clear and convincing evidence that shows that the stepparent or foster parent was precluded from adoption because of some legal barrier

Question 12

What is adoption by estoppel/equitable adoption? How does it work with intestate?

Answer 12

If conduct of a parent makes it appear as if they had adopted a child even though a formal adoption never happened then the court may treat the child as an adopted child under certain circumstances

Question 13

How does non-marital children/mom work with intestate?

Answer 13

Very easy to inherit from Mom
Treated the same as a martial kid as long is there is proof of mom giving birth

ALSO: woman who contracts with a surrogate to carry her egg with sperm is also considered the natural ma

Question 14

How does non-marital children/non-bio parent work with intestate?

Answer 14

Parent-child relationship is established (with inheritance rights) if:

(1) Parents were married when the child was born or within 300 days post-marriage
(2) Parents tried to get married before the birth and child was born then or within 300 days.
(3) Parents tried to get married after the birth + parent is named on the birth certificate or promises to pay child support (or ordered to)
(4) Parent received the kid in their home and held them out as theirs
(5) Court judgement of parentage
a. If brought post-death of in question parent, then must be shown by clear and convince evidence (often DNA)

same analysis for non-birthing domestic partner

Question 15

Re intestate succession what happens if a relative is conceived prior to the intestate’s death but born after?

Answer 15

Receives the regular share they would normally get

Question 16

What happens with a child conceived after the intestate’s death?

Answer 16

They will inherit as if born during their lifetime if:

(1) Intestate authorized in a signed and dated writing the use of their genetic material for posthumous conception and said who should be using it
(2) Person designated gave written notice about the impending birth within 4 months of the decedent’s death certificate
(3) The kid was conceived and in utero within two years of the issuance of death certificate

Question 17

What happens if a heir kills the intestate?

Answer 17

Get nothing

Deemed as if you pre-deceased

Question 18

When are parents not allowed to inherit from or through their child

Answer 18

If:

(1) Did not acknowledge the kid
(2) Parental rights were terminated
(3) Intentionally abandoned the kid during the child’s minority for at least 7 consecutive years and did not support/communicate during that time

treated as if pre-deceased

Question 19

What happens if an heir abuses or neglects elderly/dependent adults?

Answer 19

Cannot inherit

Deemed as pre-deceased

Question 20

Can non-citizens inherit intestate?

Answer 20

At CL most non-citizens could not inherit

CA: not the case
Non-Citizens are fully qualified to be an heir

Question 21

What is an advancement?

Answer 21

An irrevocable gift intended by donor as a prepayment of inheritance

Proof: need a writing signed by the donor or donee

Effect: when sharing in the estate post-death–the advancement must be accounted for
* Compute shares as if everyone was normal
* Then heir has their share reduced by amount in the advancement

NOTE: if they are in the negative cause advancement was more than sharedon’t need to give back money

Question 22

How long must an heir survive the itnestate?

Answer 22

By 120 hours

This does not apply if the result is escheat to the state

Question 23

What is disclaiming in the context of an inheritence?

Answer 23

Cannot be forced to accept an inheritance or gift via a will

May disclaim interest

Reasons:
(1) Burdensome
(2) Tax
(3) Avoid creditors

Requirements: Disclaimer must be
(1) Written
(2) Signed
(3) Identify decedent
(4) Describe interest being disclaimed
(5) Notarized
(6) Filed within a reasonable time [9 months post-death]
NOTE: if you accept profits (etc.) from propertycannot disclaim!

NOTE: if you accept profits (etc.) from propertycannot disclaim!
ALSO: disclaiming is irrevocable
Effect of Disclaimer: interest passes as though the disclaiming party pre-deceased the decedent
can also disclaim as the beneficiary of a will

Question 24

What’s a negative will?

Answer 24

So and So cannot have X

Ineffective in CA!

Question 25

When does a will go into effect?

Answer 25

At testator’s death

At that point, the will is probated and determined to be valid

Question 26

What is a savings statute?

Answer 26

Will executed elsewhere is valid if it complies with:
(1) CA law
(2) the law of the state where executed OR
(3) the law of the place where at the time of death the testator was domiciled, had a place of abode or was a national

Question 27

What is a codicil?

Answer 27

An amendment to a will

Must be executed with same formalities as a will
The will + codicil are treated as one instrument from the date of the LAST codicil [becomes the date of execution]

Question 28

What are the requirements of a valid will/codicil?

Answer 28

Lets Talk To Fran [at home]!

(1) legal capacity
(2) testamentary capacity
(3) testamentary intent
(4) Formalities
i. attested [witnessed] OR
ii. holographic [entirely in testator’s handwriting]

Question 29

What is legal capacity for a valid will?

Answer 29

Any person 18+ can make a will

Question 30

What is testamentary capacity for a valid will?

Answer 30

Requires that the testator have the ability to understand:
(1) the nature of the act
(2) the nature and extent of their property [exact not needed]
(3) their family situation

this is mental capacity and has to exist at time of wills executive

Question 31

What happens if a testator is old or has mental issues or a drug problem?

Answer 31

May still be OK to execute a will

NOTE: a sane person could lack capacity because under the influence or disoriented for some reason

Question 32

What is testamentary intent for a valid will?

Answer 32

Must have the present intent to make the instrument their will

Question 33

What are the formalities of an attested will?

Answer 33

(1) Will must be in writing
(2) Will must be signed by testator (this is a very flexible requirement)
(3) must sign or acknowledge the will or their signature int he joint presence of 2+ witnesses
(4) 2+ witnesses must sign the will during the testators life time (no min age + don’t have to sign in presence of testator)
(5) the witnesses must understand it is a will

Question 34

What happens if there are witnesses to a will who have an interest in the will?

Answer 34

GENERAL RULE: a will remains valid but the gift to the interested witness is presumed to be procured via duress, menace, fraud, or undue influence
`
Interested witness CAN take if:
(1) The interested witness rebuts the presumption OR
(2) There are at least two other disinterested witnesses OR
(3) The interest witness may receive up to their intestate share

Question 35

What is a holographic will?

Answer 35

Allowed in CA:

(1) Material provisions are in testator’s handwriting
(2) Signed
(3) No witnesses needed
(4) Testamentary capacity + intent are required
NOTE: handwritten changes to this sort of will are given effect–not the case with attested wills
make sure it doesn’t count as a codicil though

Question 36

How are testamentary gifts classified?

Answer 36

(1) Devise = gift of real property
(2) Bequest = gift of personal property
(3) Legacy = gift of personal property (usually money)

Question 37

What is a specific devise, bequest or legacy?

Answer 37

It is a gift of a particular item distinct from all other items in the will at execution

A specific bequest of a general nature is not distinguishable until the testator dies–ex: I leave my computer

Question 38

What is a general bequest or legacy?

Answer 38

It is a gift that is payable out of general assets of estate. No specified source of payment.

Usually $

Question 39

What is a demonstrative legacy?

Answer 39

It is a money gift payable rom a designated fund

If the source is insufficient it is usually paid out form other assets

Question 40

What is a residuary Gift?

Answer 40

The remainder of the estate

Balance of the estate after paying:
(1) debts, expenses, and taxes AND
(2) specific, general and demonstrative gifts

Question 41

What is an ademption by extinction?

Answer 41

When a specific gift is not in the estate [generally only applies to specific devises and bequest]

Generally: if not there than they take nothing

Question 42

What is a partial ademption?

Answer 42

Ex: large tract of land is devised and then testator conveys part of it during life time

Generally: the beneficiary would take the rest of the land

Question 43

Are there exceptions to the ademption doctrine

Answer 43

CA statutes specifically protect some bequests from ademption

(1) Balance of purchase price: testator sold the gifted item and the purchaser still owes the testator money–goes to beneficiary
(2) Proceeds of condemnation, insurance, or foreclosure: beneficiary receives any of the proceeds from these action
(3) Proceeds from sale by a guardian or conservator: if a guardian or conservator of an incompetent testator sold the gifted property–beneficiary receives a legacy equal to the proceeds received

Question 44

Are there any special rules with ademption and corporate securities?

Answer 44

If possible–courts prefer to construe as a general legacy so that that there is no ademption

A gift IS specific and subject to ademption if it uses words of possession or ID

NOTE: Change in form–beneficiary is entitled to security in another entity as a result of a merger, consolidation, reorganization etc

Question 45

What is ademption by satisfaction?

Answer 45

When the gift in the will is given to the beneficiary between the will execution and the testator’s death

Proof:
(1) Testator provides for satisfaction in the instrument or in a contemporaneous writing
(2) Donee acknowledges in writing that the gift has been satisfied

generally comes up with money more than personal gifts

Question 46

What is abatement?

Answer 46

It is the process of reducing gifts when the estate assets are not enough to pay all claims against the estate and satisfy the bequests + devisees

Testator could set out order in the will or abatement happens like this:

(1) Intestate property
(2) Residuary property
(3) General gifts to persons other than the testator’s relatives
(4) General gifts to testator’s relatives
(5) Specific gifts to persons other than testator’s relatives
(6) Specific gifts to the testator’s relatives [STRONGEST]

Question 47

How long must will beneficiaries survive the testator?

Answer 47

ANY period of time

However, if the survival cannot be established by clear and convincing evidence then the beneficiary is deemed to have died first

Question 48

What is a lapsed gift?

Answer 48

This happens when the beneficiary dies before the testator or if they are being treated as if they did (disclaimed, killed the testator etc).

Under terms of will: if the will states where property should go in the situation must go with that
Gifts saved by anti-lapse statute: if certain conditions met this can work
Via residuary clause: if no terms in will and gifts not saved by anti-lapse statute than goes with the residuary clause
Via intestacy: if no terms in will, no saving via anti-lapse statue AND there is no residuary clausegoes via intestacy

Question 49

What about lapses + class gifts?

Answer 49

If a will makes a gift to a class–only class members who survive the testator take a share

Unless the will provides otherwise, or the anti-lapse statutes requirements are met

Question 50

What about if beneficiary is dead when will is executed?

Answer 50

Then gift is void

Question 51

What are some basic construction maxims of wills

Answer 51

-Fact that the testator left a will—especially with residuary clause—indicates a desire not to die intestate
-If two provisions in a will are contradictorylast one prevails
-Will is construed as a while
-Attempt to give effect to ALL words in the will

Question 52

What happens if there is ambiguity in the will?

Answer 52

Patent (obvious) ambiguity: exists if the provision is ambiguous on its face–fails to convey any sensible meaning
-extrinsic evidence allowed
-cannot be used to fill in blanks or supply omitted gifts

Latent [hidden] Ambiguity: exists when there is a provision that conveys a sensible meaning on its face but cannot be carried out without further clarification
-extrinsic evidence is permitted

No apparent ambiguity: will provision is clear on its face and can be carried out as written but a beneficiary (or another interested party) thinks testator made a mistake
CA: follows the MODERN rule which allows extrinsic evidence to CREATE an ambiguity where there is not one and allow evidence to resolve issue

Question 53

What is incorporation by reference with wills?

Answer 53

A testator may incorporate an extraneous doc into will by reference

Effect: incorporated material is treated as if it were written out in the will [even if not will legal perfect]

Elements:
Doc may be incorporated by reference if:
(1) Testator intends to incorporate
(2) Writing is in existence at execution
(3) Identification of writing is clear

Question 54

What is “an act or fact of independent significance” with a will?

Answer 54

Something outside of the will that has a legal purpose other than disposing of property at death

Ex: specific gifts of a general nature–I leave the car that I own at death to X–court must look outside the will to figure out the bequest
Ex: contents of a safety deposit box may change but you still get the box
-the safety deposit box is a fact of independent significance

Question 55

What is a separate writing disposing of tangible personal property?

Answer 55

Will may refer to a written statement or list to dispose of tangible personal property not in the will specifically

• Can be done even if the list did not exist when the will was executed
• Can’t be cash or business property
• Total amount of value cannot be more than 25K
• No single item more than 5K

May do so when:
(1) An un-revoked will refers to the writing
(2) Document is dated
(3) Doc is either handwritten or signed by testator
(4) Doc describes the items and recipients with reasonable certainty

Question 56

What is a conditional will?

Answer 56

Operates only if a certain event occurs or does not occur

There is a presumption AGAINST conditional wills
-a court will find a will general and not conditional if possible
-parole evidence not allowed in to show that it was meant to be conditional

NOTE: sometimes hard to tell the difference between a genuine condition vs a motive to make the will

Question 57

What is integration with a will?

Answer 57

External: if a testator executed more than one codicil they must be properly integrated
-not a legal requirement–but all wills/codicils should contain the date cause it makes everything must easier

Internal: will proponent must be able to show that the pages at execution are the same pages at probate
-physical attachment or internal coherence raises a presumptions that pages were there
-also can use extrinsic evidence

Question 58

What is a contractual will?

Answer 58

Will executed or revoked as consideration for a contract
-contract to make, not to make or not to revoke a will is valid and is governed by contract law

Revocation of contract: can be revoked by either party is both still alive

Breach of Contract: can result in a constructive trust imposed by court

Question 59

What is a revocation of a will?

Answer 59

Generally: a person with testamentary capacity can revoke their will at any time before death

Question 60

What is revocation by operation of law?

Answer 60

CA has omitted heir statutes to protect surviving spouse or domestic partner from being unintentionally omitted from a will or revocable trust

Spouse/Domestic Partner: if testator marries after executing his will and the spouse is not provided for in the will after death
o The surviving spouse gets their regular share of CP and quasi-CP and also gets an intestate share of the estate
o Separate property limited to ½ share

Exceptions: will not receive an intestate share if
(1) Intentional omission
(2) Provided for with non-probate transfer
(3) Waived right to share
(4) Spouse was care custodian of decedent who was a dependent adult

Divorce: revokes all provisions in favor unless:
(1) Will expressly says otherwise
(2) They get back together
-Property will pass as if they predeceased the decedent
-Final divorce is required

Pretermitted or Omitted Child: child born or adopted after will execution, unknown child or child believed to be dead

Will cannot have:
*Intent to exclude child
*Provided for outside of the will
* Testator mostly left estate to the kids other parent
Share will be taken from:
* First by portion of estate not disposed of if any
* If not enoughwhat is necessary to satisfy the share may be taken from beneficiaries

Beneficiary Murders Testator—Slayers: cannot take anything

Question 61

What is revocation by physical act performed ON the will?

Answer 61

(1) Intent to revoke
(2) Mental capacity
a. Must be of sound mind
(3) Physical act
a. Burning, tearing, obliterating etc.

revocation by physical act acts to revoke all duplicate originals as well

Proxy Revocation: may tell someone else to destroy the will but must be done by their request and in the their presence

Partial revocation by physical act:
CA–will can be provoked in part by physical act
MEANING: you can cross out X as a gift with a pen and assuming there is enough info to show testator did it–gift is revoked
BUT–increase by physical act is not allowed unless it is the residuary incidentally

Question 62

What the presumption of non-revocation?

Answer 62

If the will is found in a normal location and there are no suspicious circumstances surrounding it–presumed to be not revoked

Question 63

What if the will cannot be found at the testator’s death?

Answer 63

It is presumed revoked

If the testator was competent till death and it was last known to be in their possession and nothing can be found OR the will appears to be damages THEN it is presumed that the testator destroyed or damaged will with intent to revoke

IF a will proponent could prove that a will cannot be found due to fire, floods, earthquake, riot, theft etc then they may be able to rebut the presumption

Question 64

What is a revival of a revoked will?

Answer 64

VERY specific fact pattern:

(1) Testator executes valid will 1
(2) Testator executes valid will 2 which expressly revokes will 1
(3) Testator then validly revokes will 2
What happens to will 1–does it revive?

CA: follows the intent approach–court will look to extrinsic evidence to determined what the testator intended

2nd will revoked by physical act: extrinsic evidence can come in re Will 1

2nd will revoked by later will –Will 3: will 1 not revised except to the extent it appears from terms of will 3 that the testator intended will 1 to take effect–no extrinsic evidence re reviving will 1

Question 65

What is expressnconditional revocation?

Answer 65

Express conditional revocation

Testator my state in the revoking instrument that a revocation is effective upon the happening or not happening of a named event

Question 66

What is implied conditional revocation?

Answer 66

Implied conditional revocation or dependent relative revocation

Fact pattern would be:
-Testator validly executes will 1
-Testator validly revokes will 1
- Testator executes will 2 but will 2 is invalid

Doctrine of dependent relative revocation—testator only revoked will 1 because they believed that will 2 would be valid
Thus the revocation fails too–will remains in force

NOTE: Only applied if it comes closer to the intent of the testator than intestatecourt will decide

Question 67

What procedures for contesting a will?

Answer 67

Only INTERESTED parties

Any potential intestate heir, beneficiaries of prior wills

Burden of proof: is on the will contestant

Timing/Notice: contest must be filed 120 days after will is admitted to probate
-all legatees under the will and intestate heirs are necessary parties and need notice too

Question 68

What grounds for will contest are there?

Answer 68

(1) Defective execution
(2) Revocation
(3) Lack of testamentary capacity
(4) Lack of testamentary intent
(5) Undue influence or duress
(6) Fraud
(7) Mistake

Question 69

What is insane delusion?

Answer 69

A distinct form of incapacity

It is a belief in facts that do not exist and that no rational person would have believed existed

Will can be set aside for this ONLY if there is a nexus between the insane delusion and the property disposition

Question 70

What is undue influence?

Answer 70

(1) Excessive persuasion that causes another to act or refrain from acting
(2) By overcoming that persons free will AND
(3) Results is a property disposition the person would not have otherwise made

Evidence:
Direct: usually not available cause testator dead

Circumstantial: requires showing a bunch of things when combined show undue influence
o Victim’s vulnerability
o The influencers apparent authority
o The actions and tactics of the influence
o The equity of the result

Question 71

What is the common law rebuttable presumption of undue influence?

Answer 71

CL

Exists when:
(1) a confidential relationship existed between the testator + beneficiary
(2) beneficiary actively participated in some way in procuring or drafting the will
(3) the beneficiary unduly benefits from the instrument

Question 72

What is conclusive presumption of fraud or undue influence?

Answer 72

Under CA law [by statute] there is a presumption that a donative transfer to certain people is the product of fraud or undue influence:
(1) drafter of the instrument
(1) one in a fiduciary relationship with testator
(3) care custodian

Conclusive with: the person who drafted the will, their relatives, persons living with then and those employed by the drafter–THIS IS NON-REBUTTABLE

Question 73

What is duress + wills?

Answer 73

Like undue influence but connotes violent conduct

Same analysis

Question 74

What is fraud + wills?

Answer 74

Any gift from fraud is invalid

Elements:
(1) false representation
(2) knowledge of falsity
(3) testator reasonably believed
(4) testator would not have made will without the representation

Fraud in the Factum [execution]: testator deceived as to identity or contents of the instrument–>did not know it was a will (so no testamentary intent either)

Fraud in the Inducement: Testator knows executing will and whats in it but deceived as to extrinsic fact and makes the will or gift based on that fact

Question 75

What is mistake + will?

Answer 75

Just a mistake

Mistake in Execution [factum] error about identification and contents of the instrument and no testamentary intent

Mistake in the Inducement: no relief unless mistake on act of will
Will is based on a an extrinsic fact that testator is just mistaken about
GENERALLY: cannot be fixed–but extrinsic evidence is admissible to show that the testator mistakenly believed their child to be dead or didn’t know about the birth of their child

Question 76

What remedies for wrongful conduct are available?

Answer 76

Deny probate: just deny the whole will going into probate
-If only certain provisions are tainted–they can be set aside and the rest probated

Constructive Trust: if evil activity stops someone from executing a will–court might impose a trust on the property in favor of intended beneficiary

Tortious Interference with an Expectancy: CA recognizes this COA
P must show:
(1) P had a reasonable expectation of receiving an interest from the decedent
(2) But for the interference, the P would have received the interest (causation)
(3) The D had knowledge of Ps expectancy and deliberately interfered with it
(4) The interference was wrongful/tortious (fraud, undue influence etc.) AND
(5) The interference damages the P
Generally–the conduct has to be directed at the decedent

Question 77

What is a “no contest” clause in a will?

Answer 77

Provision that says that the beneficiary who contests the will forfeits their gift in will

Point is to scare a beneficiary who would get more via intestacy

Basic Rule in CA: a court will enforce unless the contestant has PC to file the contest