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72 Cards in this Set

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Statutory Will Requirements
1) Capacity - 18 years old and able to appreciate the
consequences of actions
2) Testamentary intent
3) Meet will formalities (a writing, signed by testator, witnessed by two).
Will Formalities
1) A writing
2) Signed by the testator
3) In the joint presences of two witnesses
4) Witnesses understand that the instrument being signed is the
testator's last will and testament.
Valid Express Trust
1) A settlor with capacity
2) Intent to create a trust expressed with appropriate
formalities
3) An express purpose
4) Trust property (res)
3) Ascertainable beneficiaries
Spendthrift Trust
A trust with an express restraint on the alienation of the trust res which restricts the beneficiary's power to transfer their interest in the trust.

Restricts access by creditors, and only allows access for creditors of necessaries, taxes, and child support.
Restraint on alienation
Holographic Will
A signed will with all of the material terms in the handwriting of the testator. Testator must have capacity and testamentary intent.
No date is required, but the proponent of the will may need to show that it was last in time.
Non Probate Property
1) Joint Tenancy - one half interest in the undivided whole vanishes at death, so no probate.
2) Life Insurance - a private contract, and the funds are distributed according to its terms. Only a death certificate is required.
3) Contracts with pay-on-death provisions. These are pensions, IRAs, bank accounts with designated beneficiaries.
4) Trust property - Title to property is transferred to beneficiary according to the trust terms.
Specific Devise
A specific gift of a particular object distinct from all other objects in the testator's will.
Distinct
Pretermitted Spouse
California's pretermitted heir statute protects a surviving spouse/partner from being unintentionally omitted from the deceased spouse's will or revocable trust.

The situation arises where a person marries after execution of all of the decedent's testamentary instruments, and the spouse survives the decedent, yet the spouse is not provided for in the will or trust. The surviving spouse may still take his share of the community property and his intestate share of the decedent's property The intestate share may not exceed one-half of the separate property.
Unintentional
Lapse / Anti-lapse
When a beneficiary dies after the testator executes a will, but before the testator dies and the will becomes effective, the gift to the beneficiary is said to have lapsed. The devisee has only an expectancy until the death of the testator.

In California, the anti-lapse statue applies where the devisee who predeceased the testator was kindred of the testator, and issue of a deceased devisee will take in his place (unless the will states otherwise).
Devisee has only an expectancy
Undue Influence
A will is invalid if it is obtained through menace, duress, or undue influence, i.e., mental or physical coercion that deprives the testator of free will and substitutes his desires with other person's wishes.
Coercion
Insane delusuion
A delusion which the testator adheres to which is irrational and contrary to evidence and reason. Such a delusion may invalidate all or only a portion of a will.

In CA, courts recognize a presumption of sanity for the testator.
Evidence and reason
No Contest Clause
Anyone who contests a will with a no contest clause will loose benefits according to the will.

CA strictly construes such clauses, and requests for clarification or interpretation are generally not considered contests.
Lose benefit
Safe Harbor - No Contest - People
If challenging people who drafted, directed the drafting, transcribed, or witnessed the will, all one needs is a good faith basis for doing so. This will not be considered a challenge.
Drafter or witness
Safe Harbor - No Contest - Problems
As long as one has reasonable cause (a reasonable person standard that a problem exists within these areas), then there will be no contest. Problems include forgery, revocation, or challenging gifts to a drafter of the will or those associated with them (or a care custodian of a dependent adult).
Forgery, revocation, drafter
Revocation of a Will - Physical
1) A material part of the will must be burned, torn, canceled, obliterated, or destroyed. Writing void in the margin is insufficient.
2) Simultaneous present intent to revoke.
3) If by someone else, must be at testator's direction and in their presence.
Lost or Destroyed Will
If not revoked, a lost or destroyed will may still be admissible to probate on adequate proof of its contents in the absence of any statute to the contrary.

A copy or testimony of persons who knew of its contents may be used to prove the terms of the destroyed, executed will.
Revocation by Subsequent Writing
A will may be revoked in whole or in part by a later will or codicil if it is executed with testamentary formalities.
Dependent Relative Revocation
1) Standard is clear and convincing evidence
2) A doctrine of presumed intent, so it is fact dependent.
3) Only applies if there is ineffective alternative disposition.
Pretermitted Heir - Omitted Children
A child unintentionally omitted from the will of a parent is protected by pretermitted heir statutes.

If a decedent fails to provide for a child born or adopted after the execution of all of the decedent's testamentary instruments, the omitted child will receive a share in the decedent's estate equal to what the child would have received if the decedent died without executing any testamentary instruments.
Will Interpretation and Ambiguity
Words in a will should be given their plain meaning, and generally extrinsic evidence is not admissible to show testator meaning.

CA allows extrinsic evidence only where the meanings of the words used in the will are unclear.
Integration
All papers or writings present at the execution of a will are integrated into the will if the testator so desires.

Elements are:
1) Intent - testator must have intended papers to be part of will
2) Presence - papers must have been actually or physically present at will execution.

Extrinsic evidence is allowed to show the requisite intent, such as testimony showing a physical connection of the papers, or an internal sense of connection by way of page numbering, etc.
Intent
Presence
Republication
The doctrine of republication by codicil means that the will speaks as of the later date of the codicil. This can have a negative effect on omitted spouse or child if the codicil is post child or marriage.
Doctrine of Incorporation by Reference (DIWI)
A document which is not part of the will (a non-integrated writing) is given testamentary effect by the will (DIWI).

1) Document or writing
2) In existence when will is executed.
3) Will must sufficiently identify the writing
4) Intent to incorporate must be manifested by the will
DIWI
Facts of Independent Significance
The document, act, or event referenced by the will must have a significance apart from its impact on the will.

This doctrine allows parol evidence where it is usually not allowed, in interpreting a will.

Example: "I leave all my property to my employees who are employed at the time of my death." This fact is independent of the will and may be verified by parol evidence.
Prohibited Transferees Under Wills
1) Person who drafted the will
2) Related to drafter of will
3) Any partner, shareholder, or employee of drafter
4) Fiduciary relation to drafter
5) A person related to the fiduciary
6) A care custodian

Exception: One of the above related to transferor by blood.
Exceptions to Omitted Children Doctrine
A child will not receive its intestate share of an estate where omitted if:
1) Failure to provide was intentional and intent appears on face of the will
2) Testator provided for child outside of testamentary instrument and this can be shown by extrinsic evidence.
3) Testator devised substantially all of the estate to other parent of the omitted child.
Lapse
When a devisee dies after the testator executes a will, but before the testator dies and the will becomes effiective, the gift will fail or lapse.

A devisee has a mere "expectancy" until the testator dies.
Failed Transfers
If a transfer fails for any reason, the property transfers as follows:
1) It goes according to the alternative provided for in the will.
2) Becomes part of the residue of the will if the will provides for transfer of the residue
3) Becomes part of the decedent's estate and passes by intestate succession.
Kindred
A blood relative. A spouse or partner are not kindred so if a devise is made to them but they predecease, the anti-lapse will not apply and the spouse's issue will not take the gift.
Slayer Statute
CA statute prevents a person who intentionally kills another from inheriting his victim's property. Killer will be deemed to have predeceased the victim, and anti-lapse will not apply.
Simultaneous Death
CA requires clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 5 days for purposes of intestate succession.

Where priority of death cannot be established, the property of each person will be treated as if that person survived the other.
Simultaneous Death - Spouses
If clear and convincing evidence cannot establish that one spouse survived the other, one half of the community property goes to each partner's estate.
Simultaneous Death - Insurance
If an insured and beneficiary die and clear and convincing evidence cannot establish that the beneficiary survived the insured, the proceeds will be treated as if the insured survived the beneficiary.
If they are spouses, and there is no alternate beneficiary, then one half to each partner's estate.
Simultaneous Death - Joint Tenants
If evidence does not establish one survived the other, one half of property goes to each estate.
Intestate Succession of Quasi-Community Property
In CA, the decedent's one half of quasi-community property passes to the surviving spouse or domestic partner in absence of a will.
The other half of the QCP already belongs to the surviving spouse.
Simultaneous Death - Beneficiaries
If a right to succeed to any interest in property is conditional upon surviving another person and survival cannot be established, the beneficiary is deemed to NOT have survived the other person.
Ademption
A specific devise is deemed adeemed (revoked) if the specific property given is not part of the testator's estate at the time of death.
Identity Theory
CA adopts it, and it says that if the specific devise is there you get it, if not you don't.
CA exceptions are stocks and money due on sale of real property.
Exoneration of Liens
Common law says that devised gifts are given free of liens or mortgage. CA says no, unless the testator expresses otherwise in their will.
Satisfaction
The testate analogue to the intestate doctrine of advancement.
A testamentary gift is satisfied if given during the testator's life, if:
1) Testator's intent is expressed in a contemporaneous writing, or
2) The donee acknowledges in writing, or
3) The testamentary instrument provides for deduction of the lifetime gift, or
4) Property given is the same property that is the subject of a specific gift to that person - satisfaction by ademption.
Abatement
Not enough in the estate to satisfy all of the gifts made. CA creates six categories of priority of who gets shares impacted by shortage of property or funds.
1) First satisfied are specific gifts to relatives
2) Specific gifts to non-relatives
3) General gifts to relatives
4) General gifts to non-relatives
5) Residuary gifts
6) Intestate succession for gifts not disposed of by the instrument.
Spouse's Intestate Share
All CP and QCP goes to non-deceased spouse if deceased spouse dies intestate.

SP goes all to spouse IF no issue, parent, siblings, or issue of same (through step 3 of intestate succession hierarchy).

SP is shared 50% to child if only ONE child or issue of same, or parent or issue of parent.

SP 1/3 Share goes to spouse if more than one child or other kindred surviving.
Intestate Share of Non-Spouse Relatives
1) Issue of decedent take equally if they are of the same degree of kinship. If not of the same degree, then they take as modern per stirpes
2) Decedent's Parents - if no issue then to parents equally.
3) Issue of Parents - If no parents then to siblings, nieces and nephews, or issue of nieces or nephews
4) Grandparents (If you get this far, it means there is no spouse in the picture since the spouse would have gotten all separate property if no issue, parents, or issue of parents).
5) Issue of Granparents
6) Issue of Predeceased Spouse
7) Next of Kin
8) Parents of Predeceased Spouse or issue of same
9) Escheat to State
Modern Per Stirpes (per capita with right of representation) - 3 Steps
1) Find the first generation with at least one living member (skip dead generations).
2) Divide the property into as many shares as there are in that generation - Living and deceased leaving issue.
3) Distribute - living members of that generation receive their shares, issue of deceased members share equally of deceased member share if of equal degree.
If not of equal degree, repeat steps one through three.
Testate Distribution Without Specification
This will be presumed to require pure per stirpes or "division into equal shares." The estate would be divided into bloodlines at the level of the decedent's children regardless of whether living or dead.
Nonmarital Children
Recognized as heirs of mother in all states.
Paternity proof is by clear and convincing evidence, or a presumption is created by:
1) Name on the birth certificate,
2) Child born within 300 days of marriage termination, or
3) Father holding child out as his natural child and receiving child into his home.
Slayer Statute
CA prevents a person who intentionally kills another from inheriting his victim's property. The killer is deemed to have predeceased the decedent. In joint tenancy the killer has no right of survivorship.
Advancement
An inheritance given before death. These lifetime gifts may be deducted from intestate share.
It must be made with the intent that it constitutes an advancement against the heir's intestate share, and must be evidenced by a writing contemporaneous with the gift.
Hotchpot
When there is an advancement, to figure the intestate shares add the advancement to the whole of intestate estate, then divide into equal shares. Deduct the advancement from the donee's share. If the advancement was greater than donee's share, then donee receives nothing.
Private Trust
A trust is a fiduciary relationship with respect to property in which one person, the trustee, holds the legal title to the trust property, the res, subject to enforceable equitable rights in the beneficiary(s).
Settlor
The donor or person who funds the trust (can also fill the role of trustee).
Trustee
Holds legal title to trust property, and manages the res, and holds fiduciary duty to the beneficiaries.

A trustee cannot be the sole beneficiary of the trust or merger applies - a trust requires separation of legal and equitable title.

A trust will not fail for want of a trustee - the court can appoint one.
UTATA
Uniform Testamentary Additions to Trusts Act

Adopted by most states, it permits the integrated disposition of testamentary assets with a trust created during the settlor's lifetime.

So long as you have a valid trust, which was in existence BEFORE THE WILL was executed, OR AT THE SAME TIME of execution, the pour-over provision is valid by statute.
Revocation / Modification of Trusts
No modification or termination of a trust will be allowed if it is contrary to a material purpose of the settlor. However, the settlor may give permission in the instrument for modification.

Changed circumstances in CA may allow modification if they were not known to or anticipated by the settlor, and continuation under the terms of trust would impair trust purpose (son paying off mob before access to money example).
Trustee Removal
Courts may remove a trustee who is dishonest or commits a serious breach of trust. Otherwise, a trustee may not be removed simply because of disagreement with beneficiary. Analytically like modification.
Trustee Duties
CP - LS
1) C - care - must exercise the degree of care, skill, and caution that would be exercised by a prudent person in own affairs.
2) P - Prudence - duty of the prudent investor.
3) L - Loyalty - duty of trustee to not deal with the trust as far as selling, buying or borrowing from the trust
4) S - Subsidiary rules - earmark, collect and protect trust property, no commingling, duty to inform and account.
No Further Inquiry Rule
Once self dealing is found, no further inquiry is necessary. The trustee's good faith and reasonableness will be irrelevant.
Exceptions:
1) Beneficiary authorizes after full disclosure and it is objectively reasonable.
2) Settlor authorization
3) Court approval.
Discretionary Trust
The beneficiary has no right to receive payments of income or principle at will. Payments are made at the discretion of the trustee. Creditors will generally not be able to access trust assets.
Charitable Trust
A charitable purpose replaces ascertainable beneficiaries - to qualify as a charitable trust it must have a charitable purpose.
Charitable Purposes
1) Alleviation of poverty
2) Education
3) Religion
4) Health
5) Govt. or municipal purposes
6) Other purposes beneficial to the community (much like the first five).
Cy Pres Doctrine
If the purpose of a charitable trust becomes impossible to carry out (the purpose of curing a disease which is cured), then the court will modify the trust purpose to get as close as possible to the original charitable intent.
Devisee
A person designated in a will to receive a "devise," which means a disposition of property by will.
Per Stirpes
The method in CA for intestate distribution. The primary division of the estate at the first generation that has any living members, skipping over a generation with no living members, if any.
Per Capita
The UPC rule, followed in CA, calls for per capita distribution for both descendants and collaterals. All those of the same degree of kinship to the decedent take equally and those of more remote degree take by representation.
Intestacy
A condition of a person who has died without a will, or where the will does not dispose of all property (e.g. no residuary clause). A disclaimer by a residuary legatee will also result in at least partial intestacy.
No Next of Kin Survive
All intestate property goes to parents of predeceased spouse or their issue. If both are deceased, the issue take equally if of same degree, or by modern per stirpes.
Trust (definition)
A trust is a fiduciary relationship where the trustee holds legal title to trust property for the benefit of the trust beneficiaries, who hold equitable title.
Constructive Trust
It is an equitable device employed to avoid unjust enrichment of one party at the expense of another where legal title to property was obtained by:
1) Fraud, OR
2) In violation of a fiduciary or confidential relationship, OR
3) By testamentary devise or intestate succession in exchange for a promise to hold in trust.
It is a passive, temporary trust where the trustee's sole duty is to transfer the title and possession of the trust property to its rightful owner.

CA allows victims of a crime to bring an action to enforce an involuntary trust against a convicted felon for any profits from his crime.
Presumption of Undue Influence
1) A CONFIDENTIAL RELATIONSHIP between testator and beneficiary
2) BENEFICIARY PARTICIPATED in procuring or drafting will or execution of will, AND
3) Provisions of will seem to be UNNATURALLY FAVOR the person who influenced.
Satisfaction by Ademption
A specific gift in a will is given to the beneficiary during testator's lifetime.
Undue influence is ...
mental or physical coercion that deprives testator of free will and substitutes the desires of others.
A will is invalid if it is obtained through ...
menace, duress, or undue influence.