Wills Flashcards
(39 cards)
How is community property (CP) distributed under intestacy?
Surviving spouse (SS) gets decedent’s ½ of CP and quasi-community property (QCP).
SS ends up with 100% of CP and QCP.
How is separate property (SP) distributed under intestacy if there are no descendants, parents, or siblings?
All SP to SS.
How is separate property (SP) distributed under intestacy if there is one surviving descendant or parent?
½ to SS, ½ to one surviving descendant or parent.
How is separate property (SP) distributed under intestacy if there are multiple descendants?
⅓ to SS, ⅔ to multiple descendants.
What are the survival requirements for intestacy in California?
Under CA’s 120-hour rule (USDA), an heir must survive by 120 hours to inherit.
What happens if there is no sufficient evidence of the order of death?
Each decedent’s property passes as if they survived the other.
How is paternity established for inheritance in California?
Presumed if the father acknowledged the child as his own (held out child or stated in writing).
How long after reaching majority can a child bring a paternity action?
Within 3 years.
What is the per capita with representation distribution method?
Property is divided equally among the first generation with a living member.
Shares of deceased members pass to their issue.
What are the requirements for a valid will in California?
- Writing
- Signed by testator (T), at least 18 years old and of sound mind
- Signed in joint presence of and attested by two witnesses who understand it’s a will.
What is California’s ‘conscious presence’ test for witnesses?
T and witnesses must be aware of each other’s presence and actions but need not see each other sign.
What happens if a will has an interested witness?
Creates a rebuttable presumption of undue influence unless two other disinterested witnesses exist.
What is California’s substantial compliance rule for wills?
A will is valid if clear and convincing evidence shows T intended it to be their will.
What is a holographic will?
Handwritten, signed by T, and does NOT need witnesses.
What is a codicil?
A document that amends, revokes, or republishes a prior will.
What are the ways to revoke a will in California?
- Subsequent will or codicil (express or implied)
- Physical act (burning, tearing, obliterating)
- By operation of law (divorce revokes gifts to ex-spouse).
What happens if a will cannot be found after death?
Rebuttable presumption that it was revoked.
Proponent must prove its existence by clear and convincing evidence.
What is dependent relative revocation (DRR)?
If T revokes a will under a mistaken belief of law or fact (e.g., that a new will is valid), the old will remains valid and can be revived.
What is ademption by extinction?
If a specifically devised item is gone at death, the beneficiary takes nothing.
What does CA consider in ademption by extinction?
T’s intent (e.g., if guardian sells the property, no ademption).
What is ademption by satisfaction?
If T gives the beneficiary a lifetime gift meant to satisfy a bequest. Must be confirmed in a contemporaneous writing.
What happens if a beneficiary dies before T?
Gift lapses and falls into the residuary estate.
What does CA’s anti-lapse statute do?
Saves the gift if the beneficiary was a blood relative who left issue.
What is abatement?
When estate assets are insufficient to pay debts and legacies, gifts are reduced in the following order:
* Intestate property
* Residuary gifts
* General gifts
* Specific gifts.
