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Flashcards in Wills Rules Deck (48):
1

 

Elements of a Valid Will - I CAST a valid will into the stream of probate court.

INTENT to devise contents upon death at time of execution
CAPACITY to understand the property, people involved and the effect of executing the instrument.

ATTESTED to by two competent, non-interested witnesses
SIGNED by testator or person directed who is within "line-of-sight"
TESTAMENTARY age of legal capacity

2

 

Eight Frequently Tested Problematic "Takers" Under the Will - An executor looks to the LIAR DOCS to decide who takes under the will.

LATER spouse not named in existing valid will usually takes all jointly-owned property and the greater of $50k or 1/2 of the separate property under UPC intestacy succession rules

IRREVOCABLE living trusts where the beneficiary is kin (lineal descendants of testator's grandparent) are covered by antilapse statute, but not devises where survivorship is required--all other lapsed devises are added to the residue of the estate.

ADOPTED, half-blood, acknowledged and paternity suit children are treated as natural issues for inheritance purposes under the UPC and most states (exception: children take by right of representation if intestacy rules apply)
REFUSAL by beneficiary; property is added to residue
subsequent

DIVORCE causes all provisions favoring ex-spouse to be revoked unless stated otherwise in the will or if listed as beneficiary of insurance policy or ERISA benefit
OMITTED surviving children usually qualify for a forced share as if decedent died intestate (unless disinheritance can be proved)
CLASS beneficiaries must be sufficiently identifiable; courts refer to statute, testator's intent and applicable rules of construction to determine when class closes
SATISFACTION of testamentary devise cannot be made by including inter vivos transfers of gifts given to beneficiary unless that intent stated in writing (i.e., executor can't deduct $20k gift to beneficiary received while testator was living from a $50k will devise)

3

 

Will Challenges - Grounds To Contest - A Dependable, Constructive UMPIRE decides whether a will can be contested.

 

DEPENDANT relative revocation may apply if subsequent will or codicil is invalid AND prior valid will is substantially identical & consistent with testator's intent
 

CONSTRUCTIVE trust may be necessarily imposed to prevent unjust enrichment or injustice to omitted beneficiary (wrongdoer serves as trustee, ha ha ha)

indicia of UNDUE influence
 

MISTAKE in the execution (wrong document signed with no intent to make a will--will invalid, parol evidence inadmissible)

fraudulent PREVENTION of a will being written fraud in the INDUCEMENT
failure to REVOKE
fraud in the EXECUTION

4

 

Undue Influence - Factors to Consider - Only a CAD ROBS a rich testator.

CONFIDENTIAL (or fiduciary) relationship exists

ACTIVE participation in will preparation or execution
DISPOSITION to exercise undue influence unnatural

RESULT
OPPORTUNITY to exercise undue influence undue BENEFIT to alleged wrongdoer

SUSCEPTIBLE testator

5

 

Classification of Legacies and Devises – Acrostic - Some Grantors Die Really Intestate

SPECIFIC devise or bequest - particular items specified in the will
GENERAL legacy - a sum of money to be paid out of any assets of the estate
DEMONSTRATIVE legacy - a sum of money to be paid from a particular account or upon sale of a particular asset
RESIDUARY gift - everything else not mentioned under a will with a residuary clause, distributed to the primary beneficiaries
INTESTATE property - where there is no will, a lapse, disclaimer, no residuary clause, or the only will was successfully challenged


(NOTE: most states disfavor intestacy--the court will interpret parol evidence to save any document that exists and adequately expresses the decedent's intent)

6

 

Ways to Revoke the provisions of a Will - DIVORCE will AMBUSH beneficiaries.

DIVORCE / annulment (property passes as if the former spouse predeceased testator)
post-will ISSUE (revoked as to that child)

VARIANCE of provisions that increases a non- residuary gift or changes a beneficiary

OBLITERATION by cancellation or physical act (burning or tearing)
by RESTRICTION under slayer statute
CY PRES modification of testator's bequest by the court to continue charitable purpose when impossible, impractical or wasteful to carry out as stated in the will
EXPRESS revocation by subsequent properly executed instrument (including holographic will)

ADEMPTION of property devised but not owned at death
post-will MARRIAGE (as to surviving spouse's intestate share)
BEQUEST advancement paid to beneficiary inter vivos (if gift exceeds intestate share, heir gets nothing)
UNIFORM Simultaneous Death Act
SIGNATURE of testator intentionally defaced HOLOGRAPHIC codicil modifying a holographic will

7

 

Surviving Spouse's Right to Elective Share - A surviving spouse won't get the SHAFT Provided she takes her elective

SOCIAL SECURITY
HOMESTEAD laws secure the family home free of claims of creditors
family ALLOWANCE awarded by probate court (statutory authorized maintenance and support during administration of will)
FRACTIONAL share of decedent's estate (3% per year of marriage up to 50% under UPC; some states flat 1/3)

TANGIBLE personal property set-aside as enumerated by statute
PRIVATE PENSION PLANS paid as joint and survivor annuity to worker and spouse

8

 

Ways for Surviving Spouse to Maximize Elective Share - United Artists changed the SCRIPT. Now the surviving spouse gets a bigger elective share.

UNITED STATES savings bonds (jointly held) APPOINTMENT (to self) of trust res over which decedent had a general Power of Appointment (to give to anybody)
 

SHAREHOLDER agreements entered into after the marriage restricting sale or testamentary disposition of testator's jointly held common stock

revoking gifts CAUSA mortis not made in contemplation of death


submit claims for decedent's RETIREMENT benefits

INTER-VIVOS gifts, even to charity, if made within 1 year of testator's death for more than $10k

POST-marriage jointly held property (real or personal) and bank accounts to the extent that spouse furnished consideration

collect assets in TOTTEN trust accounts (payable- on-death)

9

 

Slayer Statute Exceptions - A killer may still take if he acted without SIN.

 

perfect SELF-DEFENSE

INSANITY
 

NEGLIGENT homicide

10

 

CAPACITY REQUIREMENTS

 

A testator must satisfy the following at the time of execution to qualify as having the testamentary capacity to execute a will. Otherwise the entire will is invalid and everything will pass intestate.

The testator must:

1. Be 18 years or older;
2. Understand the extent of his or her property;
3. Know the natural objects of her bounty (such as issue, parents, and spouse); and
4. Know the nature of his or her act (that s/he is executing a will). Knowing legal requirements is not necessary.

 

11

 

EFFECT OF INSANE DELUSION

 

REQUIREMENTS: A will may be invalid if, at the time of execution, he or she suffered from an insane delusion, which requires:

1. A false belief which resulted from a sick mind;
2. No evidence to support the belief; and
3. The delusion has affected the testator’s will.

IMPACT ON WILL: If the testator has an insane delusion, the part of the will that is affected will be invalid and anything under it will go to the residuary or pass through intestate. Any part not impacted will still be valid.
a. Residuary gift: A gift in part of the will not otherwise expressly disposed of.
 

12

 

EFFECT OF FRAUD

 

REQUIREMENTS:

1. Representation;
2. Of material fact;
3. Known to be false by the wrongdoer;
4. For the purpose of inducing action or inaction; and
5. It in fact induces what was desired.

TYPES OF FRAUD:

1. Fraud in the execution: The testator’s signature is forged, or the testator does not have knowledge that s/he is signing a will. The entire will is invalid, and the property passes intestate unless there is a valid prior will.
2. Fraud in the inducement: The wrongdoer misrepresents the content that induces the signature.

Only the part affected will be invalid, and that part will either go to:

o A residuary devisee;
o Heirs at law through intestate if no residue; or
o A constructive trust remedy.

3. Fraud in preventing the testator from revoking the will:

Testator wants to revoke the will but an individual fraudulently induces him or her not to revoke the will. The court will not probate the will and the property will go to the heirs OR the court will designate the heir as a constructive trustee, making his or her only duty to transfer the property to the intended beneficiary who will be determined by the court.

13

 

METHODS TO ESTABLISH
UNDUE INFLUENCE

 

1. Prima Facie Case:
o Susceptibility of testator: Some showing of weakness (psychological, physical).
o Opportunity: Wrongdoer has access to the testator.
o Active participant: A wrongful act that procures the gift.
o An unnatural result: The wrongdoer is taking a devise that ordinarily would not be given to him.
o Result: The part of the will affected will be invalidated.

2. Presumption of Undue Influence: Where a confidential relationship exists between the testator and the wrongdoer, and where there is an active participant and an unnatural result.
o CA recognized confidential relationships: Attorney/client; doctor/patient; trustee/beneficiary; guardian/ward; clergy/penitent.
o Result: The part of the will affected will be invalidated.

3. Statutory Undue Influence: CA generally invalidates a donative transfer from a transferor (settlor) to:
o A person who drafted the instrument;
o A person who is related to, married to, domestic partner, cohabitant, employee of the drafter;
o A person in a fiduciary relationship with the transferor who transcribes the instrument; or
o A care custodian of the transferor.
o Result: Transferee will not take the gift to the extent it would exceed their intestate share

14

 

MISTAKE IN CONTENT

 

SITUATION: The wrong beneficiary is named or the wrong gift is made.
o Mistake in Omission: No remedy (courts do not rewrite wills).
o Mistake in Addition: Remedy will be given, since a court is excising part of the will, not rewriting it.


 

15

 

MISTAKE IN DESCRIPTION

 

SITUATION: Ambiguity either because no one or nothing fits the description, or two or more things fit the description.
o Latent ambiguity: If on the face of the will there is no problem, you can introduce parol evidence to establish the ambiguity and, a second time, to determine the testators intent.
o Patent ambiguity: The ambiguity is apparent on the face of the will. Parol evidence is admissible.

16

 

MISTAKE IN INDUCEMENT

 

SITUATION: A gift is made / not made based due to the testator’s mistaken belief.

o No remedy is available.
o Exception: If the instrument specifically states testator

 

17

 

MISTAKE IN EXECUTION

 

Testator signs the wrong document.

SITUATION: Testator signs the wrong document.

o Signs document not believing it is a will: Result is that the will is not probated (no intent).
o Reciprocal Wills: If two testators have reciprocal wills, leaving everything to the other

18

 

MISTAKE IN VALIDITY OF A SUBSEQUENT TESTAMENTARY INSTRUMENT

 

DEPENDENT RELATIVE REVOCATION: Doctrine that allows courts to disregard a mistaken revocation.

1. Methods of Revocation: Testator either revokes through a physical act (crossing out, destroying, burning, etc.), or by a subsequently executed will.

2. Scenario: Testator will create a will (Will A) and then decide to create another will to effectuate a new intent (Will B), but Will B is either invalid or does not actually effectuate the testator’s intent. Thus, the issue is whether or not a court will ignore the revocation of Will A, based on the grounds that the testator mistakenly believed Will B effectuated his intent.

3. Substantially Identical: For the rule to be invoked, the two wills must be substantially identical so it is fairly clear that the first still would effectuate the testator’s intent.

4. RULE: If testator revokes his or her will, or a portion thereof, in the mistaken belief that a substantially identical will or codicil effectuates his or her intent, then by operation of law, the revocation of the first will be deemed conditional, dependent and relative to the second, and treated as not revoked 

19

 

PRETERMISSION

 

A child is pretermitted if born or adopted after all testamentary instruments are executed, and s/he is not provided for in any instrument.

o Scenario: Accidental omission of a child from a will.
o Remedy: The child will take an intestate share of the estate

o NOTE: A child born or adopted before all instruments are executed and left out will not take anything, unless the only reason the child was not provided for is that

20

 

COMPONENTS OF A WILL: INTEGRATION

 

IN GENERAL: Integration refers to the papers that actually comprise the will. If the will is only one piece of paper, there is no issue.

o Requirements: Intent (that testator intended these papers to be the will) and Presence (these papers were physically present when the will was executed).

o Establishing Integration: Either through a physical connection (ex: the papers are paper clipped together), or through a logical connection (there are five pages, and they read together as a will – the first word on page four follows the last word on page three).

21

 

COMPONENTS OF A WILL: INCORPORATION BY REFERENCE

 

When a non-integrated writing is given a testamentary effect and becomes part of the will. A testator can incorporate by reference an invalid deed, contract, or will, because they stand for something else.

ELEMENTS:
1. A document or a writing;
2. Which was in existence when the will was executed;
3. Is sufficiently described in the will so that its identification is clear; and
4. There must be satisfactory proof that the proffered document is the document described in the will.

NOTE: Generally the testator’s intent to incorporate must appear in the will, but if these four requirements are met, then a court may infer the intent to incorporate.

22

 

 

COMPONENTS OF A WILL: FACTS OF INDEPENDENT SIGNIFICANCE

 

When, from the ‘four corners’ of a will, a beneficiary’s identity cannot be determined, then facts of independent significance will be used to determine the identity.

o Independent Significance: The fact must exist independently from the will itself- one cannot look to the will to figure out who or what the beneficiary is (because if it is independent of the will, there is no issue of fraud and there is independent verification).

o Test: Would this fact have existed without the will?

23

 

WRITING DISPOSING OF LIMITED TANGIBLE PERSONAL PROPERTY

 

WILLS PROBATED ON OR AFTER JANUARY 1, 2007: A writing, whether or not it can be incorporated by reference, is a fact of independent legal significance, and thus may be admitted into probate. Exam Tip: This is essentially a third way to get a writing incorporated into a will.

ELEMENTS - The writing must:

1. Be referred to in the will, dated, and either signed or handwritten by the testator (if not, still look for extrinsic evidence);
2. Describe the item and recipients with reasonable certainty;
3. Be executed before or after the will; and
4. Directs the disposition of tangible personal property (valued at not more than $5,000 per item and not more than $25,000 in the aggregate).
 

24

 

 

POUR-OVER WILLS

 

A pour-over will is created when a testator executes an inter-vivos trust, putting all or part of his or her estate into the trust, which is to be administered pursuant to the terms of that trust. The issue lies in how the pour-over will get admitted into probate.

METHODS: How to get the will admitted into probate:

1. Incorporation by reference:

o Needs a trust instrument in writing;
o In existence at the time the will is executed;
o Clearly identified in the will; and
o Testator intends to incorporate the trust instrument into the will

2. Independent significance: Even without the will, there would still be an inter-vivos trust - so the pour-over will be a fact of significance independent from the will

3. UTATA (Uniform Testamentary Additions to Trusts Acts): So long as you have a valid trust in existence before the will was executed
 

25

 

CODICILS

 

A testamentary instrument executed in compliance with the CA probate code, which modifies, amends, or revokes a will.

REPUBLICATION: A codicil republishes a will. Situations in which a codicil may republish a will on the exam:
o Pour-over wills and incorporation by reference.
o Pretermission problems.

REVOCATION OF CODICILS:
o If a testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable presumption that testator intended to revoke only the codicil.
o If the testator executes a will, then executes a codicil, and subsequently revokes the will, there is a rebuttable presumption that the testator intended to revoke both.

26

 

ELEMENTS OF AN ATTESTED/FORMAL WILL

 

1. The will must be in writing;
2. Signed by one of the following people:
o The testator;
o A third person, in testator’s presence, at testator’s direction (usually testator is incapacitated); or
o A conservator pursuant to a court order.
3. Signing must be in the presence of two witnesses, both present at the same time.
o Note: If testator has previously signed alone, s/he simply has to acknowledge his signature or the will in the presence of the witnesses.
o Presence: Means see, or conscious, within the hearing of the witness and witness knows what is being done.
4. The witness must sign the will during the testator’s lifetime.
5. The witnesses must understand that the instrument they sign is the testators will.

27

 

HOLOGRAPHIC WILL

 

ELEMENTS:
1. Must be signed by testator (can be anywhere in the will).
2. Material provisions must be in the testator’s handwriting

TESTAMENTARY INTENT:
o Although a statement of testamentary intent need not be on the face of the will and in the testator’s handwriting, this can create three situations:
1. If the writing just lists names and assets next to those names, use extrinsic evidence to determine intent.
2. If the writings are a series of letters, use extrinsic evidence to show the letters taken together make up a will through integration.
3. It is not a problem if the intent is part of a commercially printed form will.
 

DATES: Not required in a holographic will, but look for the following issues:

o Inconsistent Wills: If the holographic will has no date and there is another will with a date, the undated will is invalid as to the inconsistency unless it is established to be executed after the dated will.

o Capacity: If the testator may have lacked capacity at the time the will might have been executed, the will is considered invalid unless established otherwise.

28

 

REVOCATION BY PHYSICAL ACT

ELEMENTS

1. Will must be torn, burned, cancelled (crossed out with pencil), destroyed or obliterated (erased);
2. Testator must have a simultaneous intent to revoke; and
3. The act must be done by the testator, or by someone in the testator’s presence and at his direction.

CANCELLATION: Crossing out or lining through part of a will. Cancellations to increase a gift is prohibited.

INTERLINEATIONS: Writing between the lines. Interlineations that do not count as a holographic codicil may still be considered a valid cancellation, such as writing “null and void” on the face of the will (making it a valid cancellation).

DUPLICATE WILLS: If a testator physically revokes a will of which there is another duplicate original, then the other duplicate original is also revoked.

MUTILATED WILLS: At the testator’s death, if a will is found mutilated and it was last seen in the testator’s possession, there is a rebuttable presumption the testator intended to revoke the will.

29

 

REVOCATION BY SUBSEQUENT WRITTEN INSTRUMENT

 

METHODS: Express revocation (“I revoke this will”) or implied revocation (testator creates a new will that disposes of everything, thus leaving a previous will with nothing to act upon).

REVIVAL OF A WILL

o Revocation by physical act: Will Two revokes Will One, and then destroys Will Two by physical act. Will One is automatically revived only if the testator manifested an intent to revive it (look for him saying so while revoking Will Two).

o Revocation by subsequent instrument: Testator executes Will One and then later executes Will Two (revoking Will One), followed even later by revoking Will Two by codicil. Will One is automatically revived only if it appears the testator wanted Will One revived from the terms of the codicil itself.
 

30

 

REVOCATION BY OPERATION OF LAW: OMITTED CHILD

 

OMITTED CHILD:

o A child born or adopted after all testamentary instruments are executed, and not provided for in any testamentary instrument, will receive the intestate share they would have received if the testator died without a testamentary instrument.

o Exceptions - When the child will not take:

• If the testator’s failure to provide was intentional, and that intention appears from the instrument;

• If at the time of execution, the decedent had one or more children and transferred substantially all under the will or trust to the parent of the omitted child; or

• If the decedent provided for the child by a transfer outside the testamentary instrument in lieu of a testamentary provision.

31

 

REVOCATION BY OPERATION OF LAW: OMITTED SPOUSE

 

A surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for in any instrument will receive the intestate share they would have received if the testator died without a testamentary instrument.

• Half of the community property owned by the decedent at death.

• Half of the quasi-community property (so 100% at death).

• Share of the separate property, but never more than half of the separate property value.

Exceptions:

• If the testator’s failure to provide was intentional, and that intention appears from the instrument; or

• If the decedent provided for the spouse by a transfer outside the testamentary instrument in lieu of a testamentary provision.

• Omitted spouse signs a waiver: a voluntary relinquishment of a known right, whether signed before or during marriage. Any and all probate rights can be waived.

32

 

OMITTED DOMESTIC PARTNER

 

Domestic partners follow the same rights and obligations of married couples, so long as the partner is of the same sex, or at least one is 62 and they are of opposite sex, and they filed a declaration of partnership.

33

 

REVOCATION BY OPERATION OF LAW: FINAL DISSOLUTION OF MARRIAGE

 

Devises to the spouse are revoked by operation of law once there is a final dissolution. A legal separation will not qualify.

o The devise is reinstated if the will is unchanged and the testator remarries the former spouse or reestablishes domestic partnership.

o NOTE: These rules do not apply if the will expressly states otherwise.

 

34

 

ADEMPTION: CLASSIFICATION OF GIFTS

 

Specific devise: Gift of a specific item (something unique) – testator intends that the beneficiary take this specific item, not anything else.

o Only specific gifts adeem by extinction.

General devise: Nothing unique / special about the gift, such as a gift being payable out of a general asset of an estate.

o Only general gifts adeem by satisfaction.

Demonstrative gift: Combination of a general and specific gift, where a gift is from a particular fund but if there is not enough to cover the gift, then the executor of the estate can supplement by giving general property.

Residuary devise: All other property that is not expressly disposed of in the will (such as if the testator leaves “the remaining amount” to someone).

 

35

 

ADEMPTION BY EXTINCTION

 

When a specific gift fails because the testator did not own the property on his death.

CA Distinction: Intent is important to determine if the gift was specific or general, but also to see if the testator meant for the gift to fail.

Situations when Ademption by Extinction is not allowed in CA:o When securities change forms (stock splits, mergers, reorganization of a corporation).

o If a conservator sells off the assets (beneficiary will take the net sales).

o For eminent domain awards, casualty awards, or an installment sale of property where testator holds deed of trust as security for the sale.

36

 

 

ADEMPTION BY SATISFACTION

 

Occurs when a testator gives a beneficiary an inter vivos down payment on a devise.

Establishing satisfaction:

1. Provided for in the will itself;
2. Declaration in a contemporaneous writing that the gift is a satisfaction;
3. Beneficiary acknowledges in writing (at any time) the satisfaction; and
4. The property given in satisfaction is the same property that is the subject of a specific gift beneficiary.

Valuation: If the satisfaction is not made with money, then look first to a writing to see if value is explained, and if not, look at the fair market value.

37

 

ADVANCEMENTS

 

An inter vivos down payment made by an intestate, to an heir apparent. This is accomplished by having the intestate declare in a contemporaneous writing that the gift is an advancement, which the heir acknowledges in writing (can be done at any time).

NOTE: If the heir-apparent predeceases, then he or she will not be treated as having received an advancement, unless there is a writing to the contrary.

 

38

 

CONTRACTS TO MAKE AND REVOKE A WILL

 

REQUIREMENTS:

o The will / instrument states the material provisions of the contract;

o There is an express reference in the will / instrument to that contract (terms can be established by extrinsic evidence);

o There is a writing signed by the decedent evincing a contract;

o There is a clear and convincing evidence of an agreement between the decedent and the promisee that is enforceable in equity; and

o There is clear and convincing evidence of an agreement between the decedent and a third party for the benefit of the claimant that is enforceable in equity.

IMPACT: The cause of action will accrue only once the testator dies – because until then, he or she can create a new will. The only exception is if during the testator’s life, he or she engages in conduct that would constitute fraud on the promise

39

 

JOINT AND MUTUAL WILLS

 

JOINT WILL: The will of two or more people on one document, which is probated twice (once when first person dies, then again when second person dies). NOTE: The provisions do not have to be reciprocal.

MUTUAL WILL: The separate wills of two or more people, which are reciprocal (Husband leaves everything to the wife, and wife leaves everything to the husband).

JOINT AND MUTUAL WILLS: Reciprocal provisions on one instrument. NOTE: Executing a joint or mutual will (or joint and mutual will) does not create a presumption of a contract to not revoke or make a will.

REMEDIES AVAILABLE TO PROMISEE: Damages, specific performance, or a constructive trust remedy.
 

40

 

TESTAMENTARY SPOUSAL PROTECTIONS

 

Protection regarding community property: Testator can dispose of only half of his community property. The surviving spouse owns the other half.

Quasi-community property: Same as if community property.

Widow’s election: Occurs when a testator tries to dispose of more than half of the community property. The widow can either: accept the gift or take under her statutory rights.

Illusory transfers of quasi-community property: An inter vivos transfer by the decedent of the quasi property to a third person without consideration is allowed (because the survivor only has a mere expectancy).

o Exception: This is not allowed when the transfer is illusory, and the surviving spouse takes under the widow’s election.

 

41

 

TESTAMENTARY RESTRICTIONS: MURDERERS

 

Rule: Those who feloniously and intentionally kill a decedent will not take.

o NOTE: There must either be a conviction (includes guilty plea) or a probate court determines guilt by a preponderance of evidence.

Result: The murderer will be considered to have predeceased the testator, and any anti-lapse statutes will not apply. Additionally, s/he will not receive any insurance benefits.

When a co-joint tenant is murdered: The murdered will keep his or her half, but the right of survivorship is eliminated.

42

 

INTESTATE SUCCESSION: SURVIVING SPOUSE/ DOMESTIC PARTNER

 

Community Property and Quasi-Community Property: Surviving spouse gets decedent’s half under intestacy (so now s/he gets one hundred percent).

Separate property:

o If decedent leaves no issue, parents, brother, sister, or nieces, nephews: surviving spouse gets all
o If decedent leaves one issue, or issue of a predeceased child: half to surviving spouse, half to child or child’s issue.
o If decedent has two or more children, or issue of predeceased child: 1/3 to surviving spouse, 2/3 to the children or their issue
o If decedent is survived by no issue, but leaves parents or their issue: ½ to parents, and ½ to surviving spouse
 

43

 

INTESTATE SUCCESSION ORDER

 

1. Decedent’s issue
2. Parents of decedent
3. Issue of parents’ decedent
4. Grandparents of decedent
5. Issue of grandparents
6. Issue of predeceased spouse (step-kids)
7. Next of kin
8. Former in-laws
9. Issue of parents of a predeceased spouse
10. Escheat to the state.

44

 

PER CAPITA / REPRESENTATION DISTRIBUTION

 

Per capita” distribution is the default if no method is specified.

1. RULE: Issue of the same degree take “per capita” - meaning equally and in their own right.

2. Issues of more remote degree take “per capita with representation”.

3. So make the distribution at the first level of people living and give shares to all living people at that generation, and if one at that level is deceased, give his or her share to the issue of them.

“Per stripes”: Make the distribution at the first level even if everyone is dead, so long as he or she left an issue, then the issue takes as if s/he is the predeceased ancestor.
 

45

 

POSTHUMOUS CHILDREN

 

Children conceived during the lifetime of the intestate but born after the intestate’s death are presumed heirs under intestate and beneficiaries under the will.

46

 

LAPSE AND ANTI-LAPSE RULES

 

Generally: For a beneficiary to take a devise, beneficiary must survive the testator.

RULE OF LAPSE: If the beneficiary does not survive, the gift lapses or fails, so unless a contrary intent is expressed in the will, the gift falls into the residue if there is one. If the gift is already part of the residue, it will go to the other residuary devisees if any, or through intestate.

ANTI-LAPSE: A predeceased beneficiary’s issue will step into their shoes to take, making the normal Rule of Lapse inapplicable.

o CA: Applies only if the devisee who predeceased the testator was the testator’s kindred or the kindred of a surviving, deceased, or former spouse and this predeceased devisee leaves issue. Thus, a blood relative of the spouse can take, but not the testator’s spouse.

 

47

 

EFFECT OF SIMULTANEOUS DEATH

 

When the disposition of property depends on one spouse surviving the other, and it cannot be determined by clear and convincing evidence who was survived by who, then it is deemed the one did not survive the other.

Results: Either a gift will lapse (or anti-lapse may apply), and property will follow normal community property rules.

120-Hour Rule: If an individual with no will and a prospective heir dies within 120 hours of each other, it must be shown through clear and convincing evidence that the heir-apparent survived by 120 hours to take by intestacy.

48

 

GIFT CAUSA MORTA

 

Delivery required, either:

1. Actual/manual: The item itself is given;
2. Symbolic: Something representative of the gift is given, such as a bond/stock; or
3. Constructive:

o Common law: A key, either literal or figurative (like a treasure map).

o Modern view: Constructive delivery is accomplished if a donor has done everything reasonable within the circumstances to deliver the item, and there are no signs