Wills & Trusts

Question 1

When a will or part of a will fails how does property pass?

Answer 1

When a will or part of a will fails property passes by intestate succession.

Question 2

How is community property passed at death?

Answer 2

The decedent’s share of community property, and quasi-community property passes to the surviving spouse or domestic partner.

Question 3

What is the surviving spouse or domestic partner’s share of separate property under intestate succession?

Answer 3

1) If the decedent leaves no surviving issue the surviving spouse or domestic partner takes all the separate property.
2) If the decedent leaves more than one child, one child and the descendants of one or more predeceased children, or the descendants of two or more predeceased children, the surviving spouse takes 1/3 of the decedent’s separate property.
3) If the decedent leaves one child, the descendants of one predeceased child, or no surviving descendants but at least one parent or a descendant of a parent, the surviving spouse takes 1/2 of the decedent’s separate property.

Question 4

How is the intestate share that decedents issue receive determined?

Answer 4

If surviving issue are of equal degree of kinship (all children) property passes per capita, or equally among them.
If they are of unequal kinship (one child, two grandchildren), property passes per capita with right of representation. Under this method property is divided in equal shares at the first generation with living takers. If there are deceased members their share passes to their issue.

Question 5

What is per stirpes distribution?

Answer 5

Under per stirpes distribution, in a will or trust, the property is divided at the decedent’s children regardless of whether there are any living takers.

Question 6

What is the order of intestate succession?

Answer 6

1. Issue (children, grandchildren, ect)
2. Parents
3. Issue of Parents (siblings and their issue)
4. Grandparents or their Issue
5. Issue of Predeceased Spouse or Dom.Partner
6. Decedent’s Next of Kin
7. Parents of PSpouse or Dom.Partner or Their Issue.
8. The State

Question 7

Disclaimer by heir or beneficiary

Answer 7

A beneficiary or heir may disclaim any interest that would otherwise pass to them and the interest passes as though the disclaiming party predeceased the decedent.
The disclaimer must (1) be in writing, (2) be signed by the disclaimant, (3) identify the decedent, (4) describe the interest being disclaimed, and (5) state that there is a disclaimer and the extent of it. It must be file within a reasonable time the heir or beneficiary learns of the interest. (Nine months of death or the date the interest become indefeasibly vested)

A disclaimer can be used to defeat a creditors’ claim but not a federal tax lien.

Question 8

Who is prohibited from being an heir or beneficiary?

Answer 8

1) Slayers - a person who feloniously and intentionally kills the decedent is not entitled to any property under a will or intestate succession, rights of survivorship, insurance, or other contractual rights. The killer is deemed to have predeceased the decedent and the anti-lapse statute would not apply.
2) Persons who abuse or neglect elders or dependent adults may not receive property from the victims estate.

Question 9

What state law applies to the decedent’s estate?

Answer 9

The law of the decedent’s domicile controls succession to personal property; the law of situs controls succession to real property.

Question 10

What is testamentary intent?

Answer 10

The testator must have the present intent to make a particular instrument their will.

Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional but is admissible to show that the instrument was not meant to have any effect at all.

Question 11

What are the formalities of an attested will?

Answer 11

Generally, California requires:

1) the will must be in writing;
2) the will must be signed by the testator; (any mark affixed by the testator with intent that it operate as a signature is sufficient)
3) the testator must sign or acknowledge the will or his signature in the joint presence of at least two competent witnesses;
4) the two witnesses must sign the will during the testator’s lifetime;
5) the witnesses must understand that the instrument being witnessed is the testator’s will.

Question 12

May an interested (future beneficiary) person be a witness?

Answer 12

A witness with a beneficial interest is competent to testify, but the devise raises a presumption that is was procured by duress, menace, fraud, or undue influence. If the interested witness fails to rebut the presumption they may only take their intestate share.

If there are two additional uninterested witnesses the supernumerary signatures will suffice.

Question 13

May a will or codicil that fails to meet the formalities be admitted to probate?

Answer 13

Yes, a will or codicil that is not executed in compliance with the formalities may still be admitted to probate if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the document they intended it to constitute their will.

Question 14

Holographic Wills

Answer 14

California permits holographic wills to be admitted to probate. A holographic will is valid if the signature and material provisions are in the testators own handwriting.

Question 15

Are handwritten changes to a will allowed?

Answer 15

Handwritten changes to a holographic will are valid. However, interlineations, made after the execution of an attested will are not given effect and may work a revocation.

Question 16

What is integrated into a will?

Answer 16

Physical attachment or internal coherence of pages raises a presumption that the pages were present and intended to be part of the will when it was executed. Proof of integration may also be provided by testimony or other extrinsic evidence.

Question 17

What is a codicil?

Answer 17

A codicil modifies a previously executed will and must itself be executed with the same formalities.
Under the doctrine of republication by codicil, a will is treated as having been executed on the date of the last codicil.

Question 18

What is required for a separate document to be incorporated by reference into a will?

Answer 18

A document may be incorporated by reference so that it is considered a part of the will if: (1) the document was in existence at the time the will was executed; (2) it was sufficiently described in the will so its identification is clear; and (3) there was satisfactory proof that the proffered document is the document described in the will.

Question 19

What is a pour-over will?

Answer 19

California permits a will to pour-over the estate assets to an inter vivos trust as amended on the testator’s death if the trust is identified in the will and the trust terms are set forth in a written instrument executed before, concurrently with, or within 60 days after the execution of the will.

Question 20

Is a contract to make a will valid?

Answer 20

Yes, but the contract is not a will and may not be admitted to probate.
They are governed by the law of contracts, require consideration, must be in writing. If breached a court may place a constructive trust on the beneficiaries under the will.

Question 21

How may one revoke a will?

Answer 21

A person with testamentary capacity may revoke a will at any time prior to death. A will may be revoked by physical act, subsequent instrument, or operation of law.

Question 22

Effect of Subsequent Marriage - Omitted Spouse

Answer 22

If a testator marries after executing all testamentary instruments and the surviving spouse is not provided for in the will or trust they may take their intestate share, up to one-half, of the decedent’s estate and any community property they are entitled to.

Question 23

Exceptions to the Omitted Spouse

Answer 23

A surviving spouse does not receive their intestate share if:

1. the testator’s failure to provide for the spouse in the instruments was intentional and that intent appears on the face of the instrument.
2. the testator provided for the spouse or domestic partner by a transfer outside the will or revocable trust
3. the spouse made a valid agreement waiving the right to share in the testator’s estate.
4. the spouse was a care custodian of the decedent who was a dependent adult, their marriage began while the spouse provided services or within 90 day after those services were last provided, and the decedent died less than six months after those services were last provided.

Question 24

What is Dependent Relative Revocation?

Answer 24

The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for the mistaken belief, they would not have revoked the will.

Question 25

Spouse's Election

Answer 25

The testator may require the surviving spouse to domestic partner to give up their half of community property in exchange for benefits under the will.

Question 26

Omitted Children

Answer 26

A testator can choose to disinherit his descendants. Proof must appear on the face of the will, extrinsic evidence of intent to disinherit is not admissible, evidence of lack of intent to disinherit is admissible. Under California's omitted child statute, if a decedent fails to provide for a child born or adopted after the execution of all testamentary instruments, the child receives their intestate share of the property.

Question 27

Exceptions to the Omitted Children's Statute

Answer 27

An omitted child will not receive their intestate share if: 1) the omission was intentional from the face of the instrument 2) the decedent provided for the child by a transfer outside the will or revocable trust 3) when the will or revocable trust was executed the decedent had one or more children and devised substantially all of the estate to the other parent of the omitted child.

Question 28

Unknown Child

Answer 28

If a testator fails to provide in his will for a living child solely because they are unaware of the child's birth or believes the child to be dead, the child will receive a share equal to what they would have received had the testator died intestate.

Question 29

Lapsed Gifts and Anti-Lapse Statute

Answer 29

A gift lapses if the beneficiary predeceases the testator. The California anti-lapse statute operates to save the gift if the predeceasing beneficiary: 1. was kindred (blood relative, adopted person, stepchild, foster child or their issue) of the testator or kindred of a surviving, deceased or former spouse or domestic partner, and 2. left descendants who survived the testator. The descendants take by substitution. Anti-lapse will not apply if there is a contrary provision in the will.

Question 30

Beneficiary Dead When Will Executed

Answer 30

If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is void. The rules that apply to lapsed gifts also apply to void gifts.

Question 31

What are the three types of devises or legacies?

Answer 31

1. A specific devise or legacy is a gift of a particular item. (My Niner Mountain Bike) 2. A general legacy is a gift of general economic benefit payable out of the general assets of the estate. ($500 dollars. or 100 shares of Apple Stock when I don't own 100 shares of Apple stock) 3) A demonstrative legacy is a gift of a general amount that is to paid from a specific source. ($500 from the sale of my bikes)

Question 32

What is Ademption and how does California treat it?

Answer 32

Ademption is where a specific devise or bequeathed property is no longer in the decedent's estate at the time of death. The specific legacy fails and the beneficiary takes nothing. A gift may be partially adeemed if part of the property is no longer available; the beneficiary will still take the remainder. California will look to the testator's intent in an effort to avoid the harsh effects of ademption. If possible courts will find a testator intended to make a general or demonstrative gift rather than a specific gift. By statute the following gifts will not adeem: 1) the balance of the purchase price and any security interest owing from a purchaser of property 2) an eminent domain award 3) unpaid proceeds from casualty or fire insurance on the property 4) Property owned as a result of a foreclosure, or in lieu of a foreclosure, of the security interest of a specifically devised obligation. 5) Securities in another entity that were the result of action on the part of the entity whose stock was bequeathed. 6) Remaining proceeds of the sale of the testator's property paid to a guardian of an incompetent testator.

Question 33

What are the grounds for a will be challenged?

Answer 33

A will contest challenges the validity of a document offered for probate. Grounds for challenge are: 1. defective execution 2. revocation 3. lack of testamentary capacity 4. lack of testamentary intent 5. undue influence 6. fraud 7. mistake

Question 34

What procedure is required for a will challenge?

Answer 34

A will contest must be filed by an interested party within 120 days after the will is admitted to probate. All legatees under the will and all intestate heirs are necessary parties and are entitled to notice. The burden of proof is on the will contestant.

Question 35

What is required for Testamentary Capacity

Answer 35

In California, a person must be 18 years of age or older and have mental capacity at the time of execution to make a valid will. Mental capacity to make a will requires that the testator had the ability to understand: 1. The nature of his act 2. The nature and extent of his property 3. The persons who are the natural object of his bounty An insane delusion is a distinct form of incapacity. An insane delusion is a belief in facts that do not exist and that no rational person would believe existed.

Question 36

What is required to establish undue influence?

Answer 36

To establish undue influence the contestants must establish that: 1) influence was exerted on the testator; (pleading, begging, nagging, cajoling, or even threatening are insufficient) 2) the effect of the influence was to overpower the mind and free will of the testator; 3) the will would not have been executed but for the influence.

Question 37

What circumstantial evidence of undue influence must the court consider?

Answer 37

1. The victim's vulnerability; 2. the influencer's apparent authority 3. the actions and tactics of the influencer 4. the equity of the result.

Question 38

What is required to establish a common law presumption of undue influence?

Answer 38

1) a confidential relationship between testator an beneficiary 2) the beneficiary actively participated in the creation of the will 3) the beneficiary unduly benefits from the instrument, meaning the gift appears to be unnatural. If established the presumption will shift the burden of proof to the beneficiary.

Question 39

By statute California presumes transfers to certain people to be the product of fraud or undue influence?

Answer 39

1) the drafter of the instrument; 2) a transcriber of the instrument who was in a fiduciary relationship with the transferor 3) a care custodian of a dependent adult transferor if the instrument was executed during the provision of care or within 90 days before or after. 4) a care custodian who commenced a marriage, cohabitation, or domestic partnership with a dependent adult.

Question 40

Any gift resulting from fraud is invalid. What is required to establish fraud?

Answer 40

Fraud requires that the beneficiary willfully deceived the testator by 1) a misrepresentation as to the nature or contents of an instrument (execution) or 2) a misrepresentation of facts that influence the testator's motivation. (inducement). And that the testator was deceived by and acted in reliance on the fraud.