Wills

Front 1

Testamentary Capacity

Back 1

Testator must be:
i. 18 years old,
ii. Able to understand the extent of her property,
iii. Know the natural objects of her bounty, (spouse, issue, parents) and
iv. Must know the nature of her act.

Front 2

If T lacks capacity, T's will:
Exception

Back 2

T's entire will is invalid and property will pass by intestate succession.

Exception: If T had a valid prior will that was purportedly revoked by a second will (which there was no capacity), then the first instrument will be probated because if T did not have capacity, the second will could in no way revoke the first.
1. Look for a T who has a conservator appointed
2. Look for a T who was diagnosed with a mental disorder
3. Note: the mere appointment of a conservator or the diagnosis of a mental disorder is not alone sufficient to show incapacity. Go thru 4 prong capacity test apply facts to test.

Front 3

Insane delusion

Back 3

A will can also be attacked if at the time of execution the T was suffering from an insane delusion.

Front 4

A person is suffering from an Insane delusion if:
What part of the willis affected?

Back 4

i. If the testator had a false belief,
ii. that false belief was the product of a sick mind,
iii. there is no evidence or no scintilla to support the belief, and
iv. The delusion must have affected the testator’s will.

Note: Only that part of the will affected by the insane delusion is invalid. That part will go to the residuary beneficiary or distributed by intestate succession.

Front 5

Distinguish Lack of Capacity from Delusion

Back 5

Lack of Capacity is severe, it goes to the entire essence of the will, and Insane Delusion is a narrow problem the T is otherwise normal thus delusion only affects a portion of the will.

Front 6

Fraud - the will or part of a will is invalid if:

Back 6

The will or part of a will is invalid if:
i. there was a representation;
ii. of material fact;
iii. known to be false by the wrongdoer;
iv. for the purpose of inducing action or inaction; and
v. In fact induces the action or inaction desired.

Front 7

Three Types of fraud

Back 7

1. Fraud in the execution
2. Fraud in the Inducement
3. Fraud in preventint testator from revoking will.

Front 8

Fraud in the execution

Back 8

Someone forges Ts signature to a will or having T sign a document that is purportedly non-testamentary in nature.
1. The entire will is invalid property passes by intestate successor or if there was a prior will validly executed the prior will is valid.

Front 9

Fraud in the Inducement

Back 9

The wrongdoer’s representations affect the contents of T’s will; invalidates only part affected – that part will go to the residuary devisee, pass thru intestate succession or placed in constructive trust for the intended beneficiary.

Front 10

Fraud in preventing testator from revoking will

Back 10

Similar to inducement. Where T does not revoke her will as she desired due to misrepresentation. The court will not probate the will and thus the property will go to the heirs. The court will decree that the heir is a constructive trustee who has the duty to transfer the property to the intended beneficiary.

Front 11

Distinguish fraud in the inducement from fraud in the execution

Back 11

In fraud in the execution T does not intend the document to be his will, in Fraud in the inducement T does intend the document to be his will however the contents are affected by misrepresentation.

Front 12

Undue influence

Back 12

Undue influence is mental or physical coercion that deprives the T of his free will, causing T to substitute another person’s desire for that of his own. Undue influence requires that.

Front 13

Prima facie case for undue influence

Back 13

The portion of a will that is affected will be invalid if
1. The testator was susceptible to undue influence (psychological, financial, physical, any weakness of the testator),
2. The wrongdoer had access to the testator and
3. Actively participated in the undue influence to get the gift,
4. Which ends in an unnatural result (takes devise he ordinarily would not be expected to take).

Front 14

Common Law Presumption of undue influence

Back 14

The portion of a will that is affected will be invalid if (i) there was a confidential relationship between testator and beneficiary; (ii) the beneficiary participated in execution of the will; and (iii) which ends in an unnatural result.

Front 15

Confidential relationships are:

Back 15

1. Attorney/client
2. Doctor/patient
3. Guardian/ward
4. Clergy/person penitent
5. Trustee/beneficiary
6. Also recognizes a confidential relationship whenever one person reposes trust in another. Such as very close friends.

Front 16

The part of the will affected by undue influence will go to:

Back 16

1. The residuary devisees if any, or if none:
2. To the heirs at law by intestate succession; or
3. Via constructive trust remedy to the intended beneficiary

Front 17

Statutory Presumption of Fraud or Undue influence (CA)

Back 17

California presumes that a donative transfer to certain people is the product of fraud or undue influence, including but not limited to
(i) the drafter of the instrument;
(ii) a person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed;
(iii) a care custodian of a dependent adult if the instrument was executed during the provision of substantial and ongoing health or social services within 90 days before or afterwards.
Note: people who had a relationship with the decedent before he became dependent and who took no remuneration are not care custodians.

Front 18

Effect of statutory Presumption of Undue Influence

Back 18

The presumption is conclusive with respect to transfers to the drafter, his relatives, and certain associates. Otherwise the presumption is rebuttable by clear and convincing evidence.

Front 19

A person disqualified by statutory presumtion of undue influence:

Back 19

2. A person disqualified by the presumption is deemed to have predeceased the transferor without spouse, domestic partner or issue.

Front 20

Exceptions for Statutory presumption of undue influence:

Back 20

The presumption does not apply if:
(i) the drafter is related within the 4th degree of or lives with the drafter;
(ii) the instrument is approved by court order;
(iii) the transferee is a public entity, charitable or veterans organization, or trust holding an interest for this entity;
(iv) the transfer does not exceed $5,000 (applies only to estates worth over $100,000);
(v) the instrument was executed outside of California by a nonresident transferor; or
(vi) the instrument is reviewed by an independent attorney.

Front 21

Attested Wills: A will is properly attested if:

Back 21

A will is properly attested if:
i. The will must be in writing (oral wills are not recognized in CA),
ii. The will must be signed by the T or a 3rd person, in T’s presence and at T’s direction (arises if T is incapacitated), or by a conservator pursuant to a court order.
iii. The signing by T, 3rd party, or the conservator must be done in the presence of two witnesses, both present at the same time;
iv. The witnesses must sign the will during the T’s lifetime; and
v. The witnesses understand that the instrument they signed is T’s will.
vi. Note: If the will does not satisfy elements 3, 4, or 5 of the traditional formalities approach California’s “clear and convincing” standard (harmless error rule) may apply. The will can still be admitted into probate if the proponent of the will established by “clear and convincing evidence” that at the time the testator signed the will he intended the will to constitute his will.

Front 22

Attested wills under CA Law:

Back 22

(i) the witnesses do not have to sign in the presence of T, (ii) T does not have to declare to the witnesses “this is my will” as CA does not have a publication requirement, (iii) neither T nor the witnesses have to sign at the end of the will, signing anywhere on the will is okay, (iv) in CA it’s ambiguous as to who has to sign 1st T or W.

Front 23

California’s substantial compliance doctrine

Back 23

If there is no issue of fraud or mistake, the will should be deemed valid under California’s substantial compliance doctrine.

Front 24

Interested witnesses
At common law
under CA law

Back 24

An Interested witnesses is a witness who is a beneficiary under the will.

At Common Law, a witness who was beneficially interested in the will was deemed incompetent and the will held invalid.

Under CA law, if a witness is beneficially interested in the will, the will is valid,
1. But unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrong doing.
2. If witness-beneficiary rebuts the presumption of wrong doing then the witness-beneficiary takes the gift.
3. If witness-beneficiary cannot rebut the presumption of wrongdoing, he takes the amount as does not exceed what would be given by intestacy.
4. The presumption of wrongdoing is inapplicable if witness-beneficiary is taking only in a fiduciary capacity. i.e. taking only as a trustee.

Front 25

Holographic Will - Define
Elements

Back 25

A holographic will is a handwritten will.
Elements:
i. A Holographic must be signed by T. signature can be anywhere in the will.
ii. The material provisions must be in T’s own handwriting.
1. Material provision are (i) the gifts made and (ii) beneficiaries’ names.

Front 26

Holographic Will - Testamentary Intent

Back 26

testamentary intent (“this is my will”) need not be on the face of the will and in T’s handwriting.
1. If T signs and executes a writing that lists names and next to each name an asset that T owns extrinsic evidence is admissible to determine T’s intent.
2. If T writes a series of letters the series can constitute one will under integration.
3. If T uses a commercial form will under CPC6111 (c) any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.

Front 27

Holographic Will - Lack of Dates on holographic wills

Back 27

iv. Dates are not required for holographic will, but lack of date can create problem with:
1. Inconsistent wills
2. Capacity

Front 28

Holographic Will - Lack of Date effect on Inconsistent Wills

Back 28

Inconsistent wills
a. If an undated holograph is inconsistent with the provisions of another will the holograph is invalid to the extent of the inconsistency unless the undated holograph’s time of execution is established to be after the date of execution of the other will.

Front 29

Holographic Will - lack of date effect on Capacity

Back 29

Capacity
a. If a holograph is undated and if it is established that the testator lacked testamentary capacity at any time during which the will might have been executed so, undated holograph is invalid unless shown to have been executed when T had testamentary capacity.

Front 30

Holographic Will - CA law

Back 30

In CA, holographic wills are permitted and can revoke a codicil so long as the formalities required of a holographic are followed.

Front 31

Choice of law:

Back 31

A will is valid in California if:
i. The will complies with California’s formalities of execution;
ii. The will does not comply with the formalities of execution under CA law but it complies with the formalities of execution of the place where the will was executed;
iii. If the will does not comply with the above but it complies with formalities of execution of the place where T is domiciled at execution.

Front 32

Conditional will

Back 32

One whose validity is conditional by its own terms. i.e. T’s will states this is my will if I die in Europe during my vacation.
i. The will is probated only if the condition is satisfied. Conditional wills can be formal or holographic wills.

Front 33

Revocation of will by physical act:

Back 33

A will is revoked by a physical act if it is:
i. Burned, torn, cancelled destroyed or obliterated;
1. Cancelation = lining out or crossing out with pen or pencil
2. Obliteration = erased
ii. T must have the simultaneous intent to revoke; and
iii. The act must be done by either the T or one in T’s presence at his direction.

Front 34

Interlineations

Back 34

Interlineations is writing between the lines of the will. This does not create a codicil. Beneficiary keeps original gift due to DRR.
1. If interlineations creates gift less than cancelled provision = DRR cannot be used and beneficiary keeps the lesser gift.

Front 35

Cancellation to increase a gift:

Back 35

A cancellation to increase a gift is prohibited. Rule: You cannot increase a co-beneficiaries gift by cancellation
1. i.e. I leave my farm to X an Y, T cancels our Y’s name. X takes ½ of the farm the other half goes to the residuary devisee or by intestacy.

Front 36

Duplicate Wills - revocation

Back 36

If testator or one in his presence at his direction revokes one of the duplicate originals, the other duplicate original is revoked as a matter of law.

Front 37

Mutilated wills

Back 37

There is a rebuttable presumption testator mutilated will with the intent to revoke the will if a mutilated will was last seen in testator’s possession.

Front 38

Revocation by subsequent written instrument

Back 38

Revocation can be express (subsequent writing expressly revokes prior will); or implied (subsequent will revokes prior will if totally disposes of Ts estate). The revoking instrument must be executed w/the formalities required for execution of the will.
i. The act of revocation performed upon a codicil does not revoke the will, even if the T so intended.

Front 39

Revival

Back 39

Under CA law, the revocation of a subsequent codicil/instrument does not revive the prior will unless the T intends the prior will to be revived. Extrinsic evidence is admissible to prove T’s intent to revive.

Front 40

Dependent Relative Revocation

Back 40

A court will allow revocation by DRR if there was a revocation of a prior will based on a mistake of law or fact but for the mistake, the testator would not have revoked the will.
i. Note: Whenever you determine a subsequent will is invalid, always consider whether prior will be revived under DRR.

Front 41

Revocation by operation of law - Omitted/Pretermitted Child

Back 41

Omitted/Pretermitted Child – a child born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument.

Front 42

Omitted/Pretermitted Child Receives:

Back 42

Child receives a share of the decedent’s estate equal in value to that which the child would have received if the D had died without ever having executed any testamentary instrument. – Thus the child receives an intestate share of assets plus any assets held in any intervivos trust.

Front 43

Omitted/Pretermitted Child
Gifts to other beneficiaries
Exceptions

Back 43

For the child to take this statutory share, other gifts will have to be abated or reduced. Exceptions:
i. The decedent’s failure to provide for child in any testamentary instrument was intentional and that intention appears from instrument.
ii. At time of execution of the testamentary instrument, the decedent had one or more children and transferred by will or revocable intervivos trust substantially all of his estate to the parent of the omitted child.
iii. The decedent provided for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any testamentary provision.

Front 44

Revocation by operation of law - Divorce/Terminationof Domestic Partnership

Back 44

By operation of law there is a revocation of the devise to the spouse or domestic partner if there is an annulment, final dissolution of marriage, or termination of domestic partnership.
1. Legal separation does not count.
2. The devise is reinstated if the will is unchanged and the T remarries the former spouse or reestablishes another domestic partnership with the former domestic partner.
3. These rules do not apply if the will expressly states otherwise.

Front 45

Integration

Back 45

Integration refers to which papers make up the will. Two elements required for papers to be integrated:
i. Intent: T must have intended for the papers in question to be part of the will;
ii. Presence: The paper must have been actually or physically present at the time of execution.
iii. Intent is shown through 1) physical connection among all pages; (such as stapling the papers together) or 2) logical connection among pages (do pages follow each other).

Front 46

Codicil - Define
Validity

Back 46

A codicil is a testamentary instrument executed in compliance with the CA probate code which modifies amends or revokes a will.
To be valid, a codicil must be executed with the same formalities required for the execution of a will.

Front 47

Republication

Back 47

A codicil republishes a will and causes the will to speak from the date that the codicil is executed.

Front 48

Codicil - Eliminaiton of pretermission problems

Back 48

Codicil can eliminate pretermission problems: 1) codicil republished the will; or 2) codicil itself is testamentary instrument thus birth, marriage or domestic partnership took place before codicil executed.

Front 49

Revocation of Codicil

Back 49

1. If T executes a will then executes a codicil and subsequently revokes his codicil there is a rebuttable presumption that T intended to revoke only codicil
2. If T executes a will, and then executes a codicil, and T subsequently revokes the will, there is a rebutable presumption that T revoked the will and codicil.

Front 50

Incorporation by Reference

Back 50

A non-integrated writing is given testamentary effect and becomes part of the will. A document may be incorporated by reference into the will so that is considered part of the will if:
i. There is a document or a writing;
ii. The document or writing was in existence when the will was executed;
iii. The document is clearly identified in the will; and
iv. Testator intended to incorporate the document into the will.
v. Note: If you establish elements 1 – 3, 4 will be implied by the court.

Front 51

Facts of Independent Significance

Back 51

Identity of beneficiary or a gift may be supplied by facts of significance independent of Ts will; this allow us to fill in blanks to Ts will with parol evidence effectuated during the T’s lifetime that primarily for Non-testamentary motives and is trustworthy. (e.g., document can’t be created solely for purposes of naming B or gift)
i. Facts of independent significance allow us to fill in the blanks with Parol evidence that is trustworthy.

Front 52

Writing Disposing of Limited Tangible Personal Property under CPC 6132

Back 52

A writing, whether or not it can be incorporated by reference or is a fact of independent significance, may be admitted into probate and thus given testamentary effect. Four elements required:
i. The writing must be (i) referred to in the will, (ii) dated and (iii) either signed or handwritten by the testator.
1. If not signed, dated, or handwritten it can still be admitted into probate if extrinsic evidence establishes the T’s intent regarding disposition of the items described in the referenced writing.
ii. The writing must describe the items and recipients with reasonable certainty.
iii. The writing may be executed before or after the will;
iv. The writing directs the disposition of tangible personal property (excluding cash or property used primarily in business) valued, at the time of T’s death, at no more than $5,000 per item and not more than $25,000 in the aggregate.
1. If an item of property is valued at more than $5000 that item is not subject to 6132 and that item passes to the residuary clause (if none intestate succession) of the will.

Front 53

Admission of Extrinsic Evidence (Mistake)
Mistake in content

Back 53

Mistake in content: The wrong beneficiary is named or wrong gift is made.
1. By omission, no remedy is given because courts do not re-write wills.
2. By addition, the court may strike out because the court is not rewriting the will but just excising a part of the will.

Front 54

Admission of Extrinsic Evidence (Mistake)
Mistake in execution

Back 54

T signs wrong document thinking it is a non-testamentary instrument. Not probated because no intent by T. T’s sign the wrong will when executing reciprocal wills (husband and wife make wills at same time and sign wrong one). Court may reform the will.

Front 55

Admission of Extrinsic Evidence (Mistake)
Mistake in inducement
Narrow Exception

Back 55

Particular gift is made or not made on basis of testator’s erroneous beliefs; generally no relief given.
Narrow exception: Unless mistake and what T would have done but for the mistake appears on face of the will.

Front 56

Admission of Extrinsic Evidence (Mistake)
Mistake in description (ambiguity)
Latent
Patent

Back 56

Where no one or nothing fits the description, or where two or more persons or things fit the description.
1. Latent: on the face of the will there is no problem. Parol evidence can be introduced to establish the ambiguity, and then introduce evidence a second time to determine T’s intent.
2. Patent: the ambiguity is apparent on face of will, In older cases there was no remedy, Modernly parol evidence admissible to ascertain any type of ambiguity.

Front 57

Admission of Extrinsic Evidence (Mistake)
Mistake in the Validity of a Subsequent Testamentary instrument (Dependent Relative Revocation) Basis of DRR

Back 57

To allow a court to disregard a revocation made by mistake.
1. If T revokes her will, or a portion thereof,
2. In the mistaken belief that a substantially identical will or codicil effectuates her intent
3. Then, by operation of law
4. The revocation of the first will be deemed conditional, dependent, and relative to the second effectuating testator’s intent.
5. If the second does not effectuate T’s intent, the first (by pure legal fiction) was never revoked.
a. Note: Will #1 and Will #2 must be substantially the same.

Front 58

Admission of Extrinsic Evidence (Mistake)
Mistake involving living children (pretermission)

Back 58

a pretermission is an accidental omission
1. A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument;
a. A pretermitted child takes an intestate share of the estate.

Front 59

Admission of Extrinsic Evidence (Mistake)
Mistake involving living children (pretermission)
Corollary
Exception

Back 59

A child born or adopted before all testamentary instruments are executed and not provided for in any instrument is not pretermitted. Such a child takes nothing.

a. Exception: A child born or adopted before all testamentary instruments are executed and not provided for in any of the instruments is treated as is pretermitted in the only reason the child was not provided for in the testamentary instrument is because T erroneously thought the child to be dead or non-existent.

Front 60

Lapse (Death of Beneficiary before T):

Back 60

For a beneficiary to take a devise, beneficiary must survive the T.
i. Lapse: If beneficiary does not survive the T, beneficiary’s gift lapses or fails unless a contrary intent is expressed in the will. The gift falls to residue if any; to co-residuary devisees if already part of residue; or by intestacy.

Front 61

Anti-Lapse statute

Back 61

Anti-Lapse statute: If the anti-lapse statute applies the rule of lapse will not apply. Issue of predeceased devisee step into shoes of predeceased devisee so gift doesn’t lapse.
1. Applies only if the devisee who predeceased the T was “kindred” of T, or kindred of a surviving, deceased or former spouse or domestic partner or T and this predeceased devisee leaves issue.
2. Example: T makes a devise to his brother and brother predeceases T, in the absence of a contrary provision in the will, the gift to the brother will not lapse but go to the issue of the brother.
3. Note: for the anti-lapse statute to apply devisee must be “kindred” (blood relative) of T or T’s spouse or domestic partner but the devisee cannot be the spouse or the domestic partner.

Front 62

Pour-Over Will

Back 62

A pour-over will exists where part or all of a testator’s estate is devised to a trustee of an inter-vivos trust, to be administered pursuant to the terms of the trust.

Front 63

Pour-Over Will is valid through:

Back 63

1. Incorporation by reference
2. Independence significance
3. UTATTA Statute

Front 64

Pour-Over Will - Incorporation by reference

Back 64

A pour-over will is valid through incorporation by reference if the trust is in writing, in existence at the time will was executed, was clearly identified in the will, and the testator intended to incorporate the trust instrument in the will.

Front 65

Pour-Over Will - Independent significance

Back 65

A pour-over will is valid through independent significance whereby the pour-over provision will be validated by facts of independent significance (even without the will we still have the trust therefore the trust instrument is a fact of significance independent from the will).

Front 66

Pour-Over Will - UTATTA Statute

Back 66

UTATTA Statute so long as you have a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision is valid by statute.

Front 67

Pour-Over Will - trust modified after will executed:

Back 67

If trust is modified after will executed, incorporation by reference no longer good because trust as modified was not in existence when will was executed; but provision can still be validated as act of independent significance or statute.

Front 68

Classification of 4 Types of Gifts - Specific Devise

Back 68

gift of a particular item (unique – real property, antique auto; T intended that beneficiary take precise thing); adeem by extinction only.

Front 69

Classification of 4 Types of Gifts - General Devise

Back 69

Payable out of general assets of estate (nothing unique or special – publically traded stock); adeem by satisfaction.

Front 70

Classification of 4 Types of Gifts - Demonstrative Devise

Back 70

Hybrid of general and specific; gift from particular fund but executor can resort to general property if fund is not enough.

Front 71

Classification of 4 Types of Gifts - Residuary Devise

Back 71

All other property not expressly disposed of in will.

Front 72

Ademption by extinction
Common Law
CA Law

Back 72

1. CL: when a specific gift fails because the testator did not own the property at testator’s death;
2. CA: Specific gift adeems by extinction only if T does 1) not own property at his death and 2) T intended to adeem the gift at the time he disposed of the specific property. No ademption by extinction of gifts of: securities changing form, conservator sells off assets, eminent domain award, casualty award, installment sale of property paid after T’s death (if before see if can easily trace – evidencing intent to not fail). For all others, try to classify the gifts as general or try to trace.

Front 73

Ademption by satisfaction

Back 73

Ademption by satisfaction: occurs where the will provides for a deduction of the intervivos gift, testator declares gift in a contemporaneous writing of the satisfaction, beneficiary acknowledges in writing of the satisfaction, or the property is the same as the subject of a specific gift.

Front 74

If beneficiary receives satisfaction but predeceases T:

Back 74

If beneficiary receives satisfaction but predeceases T, beneficiary’s issue is treated as having received satisfaction unless T’s will or contemporaneous writing states otherwise.

Front 75

If not made in cash, satisfaction valued as:

Back 75

If not made in cash, satisfaction valued 1) as expressed in contemporaneous writing of T or beneficiary; or 2) at its FMV, measured at time beneficiary came into possession of the property.

Front 76

Advancement

Back 76

Advancement is an intervivos down payment made by an intestate to an heir apparent.

Front 77

Intestate Succession - Share of surviving spouse

Back 77

Spouse Inherits community and SP share.

Front 78

Intestate Succession - CP and QCP

Back 78

Surviving spouse or domestic partner inherits decedents ½ of the CP and ½ of the QCP. Note: surviving spouse already owns ½ of the CP and the QCP thus ends up with 100% of CP and the QCP.

Front 79

Intestate Succession - SP

Back 79

ii. Inherits decedent’s SP as follows:
1. All to surviving spouse or domestic partner if decedent leaves no issue, parents, siblings, or issue of deceased siblings
2. If decedent is survived by one child or issue of a predeceased child, ½ to surviving spouse or domestic partner and ½ to child or child’s issue.
3. If decedent is survived by 2 or more children, or issue of predeceased children, 1/3 to surviving spouse or domestic partner and 2/3 to the children or their issue.
4. If decedent is survived by no issue, but leaves parent or parents or their issue then ½ to parent or parents or their issue, ½ to surviving spouse or domestic partner.

Front 80

Intestate Succession - No surviving spouse or DP

Back 80

If intestate leaves no surviving spouse or domestic partner:
i. Issue
ii. Parents
iii. Issue of parents
iv. Grandparents
v. Issue of grandparents
vi. Issue of a predeceased spouse or domestic partner.
vii. Next of kin
viii. Parents of a predeceased spouse or domestic partners (former in laws)
ix. Issue of parents or a predeceased spouse or domestic partners
x. Escheats to state of California.

Front 81

Per Capita

Back 81

If issue take by intestacy or by a will or trust that does not specify the manner, they take in manner provided in California Probate Code § 240:
i. Issue of the same degree take ‘per capita’ or equally and in their own right i.e. X has children A, B, C. If alive at X’s death each takes 1/3 per capita.
ii. Issue of more degree take ‘per capita by representation’
1. Make distribution at first level someone is living, giving shares to 1) all living people at that generation; and 2) deceased members of that generation who leave issue (to be divvied up among the issue)
2. Example: X has two children A & B, Both predecease X, A leaves child C, B leaves children D and E, D survives X, E predeceases X but leaves children F & G. To distribute we drop down to first living level: C’s level, C, D and E are given 1/3, E’s shares will be split between F & G 1/6 each. F & G step into E’s shoes and received by right of representation.

Front 82

Representation/Per Stirpes

Back 82

If a will or trust calls for distribution ‘per stirpes’ or ‘by representation’ or by ‘right of representation’ Distribution per § 246 of CPC
i. Diagram problem and make distribution at the very first level, even if everyone is dead, so long as they left issue.
1. Example: X has two children A & B, Both predecease X, A leaves child C, B leaves children D and E, D survives X, E predeceases X but leaves children F & G. To distribute we start at the first level even though A and B are dead, ½ share for A and ½ share for B: C takes ½, D and E take ¼ each (splitting B’s ½ share). Then F and G split E’s ¼ share taking 1/8 each.

Front 83

Advancement Requirments

Back 83

Requires writing that lifetime gift is advance payment of intestate share. Advancement is an inter-vivos down payment on a devise to an heir apparent where the testator declares in a contemporaneous writing, or the beneficiary acknowledges in writing of the advancement.

Front 84

Advancement - If Heir receives advancement but predeceases T

Back 84

If heir-apparent receives advancement but predeceases intestate, heir apparent’s issue is not treated as having received an advancement unless advancement states otherwise.

Front 85

If not made in cash, advancement is valued:

Back 85

If not made in cash, advancement is valued 1) as expressed in contemporaneous writing of intestate or heir apparent; or 2) at its FMV at time heir came into possession.

Front 86

Adoption

Back 86

Always treated as natural child of adoptive parents.

Front 87

Adoption - For purposes of seccession:

Back 87

For purposes of succession, adoption severs relationship to child’s natural parents unless adoption is 1) by spouse of natural parent; or 2) after death of either of the natural parents.

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Stepchildren and Foster Childred treated as having been adopted if:

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Stepchildren/Foster children treated as having been adopted if 1) relationship began during child’s minority; and 2) relationship continued throughout parties’ lifetimes; and 3) established by clear and convincing evidence that stepparent or foster parent would have adopted but for ‘legal barrier'.

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Equitable Adoption

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Equitable Adoption exists when parties hold themselves out as parent and child.

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Non-marital Children

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In CA, marital status of parents is irrelevant. Key is whether a parent-child relationship existed irrespective of marital status.

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In domestic partnership, parent-child relationship presumed as to non-birthing partner if:

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In domestic partnership, parent-child relationship presumed as to non-birthing partner if 1) child is born during domestic partnership or 2) child is born after domestic partnership but non-birthing partner is named on birth certificate or pays child support.

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Half-Bloods

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Relatives who have one common parent and not two such as half siblings. Relatives of half-blood inherit the same as whole blood.

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Posthumous Children

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A child conceived during life of intestate or T but born after T’s death. Posthumous children are deemed heirs of intestate and beneficiaries of T’s will.

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Simultaneous Death

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If the devolution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whom, then it is deemed the one person did not survive the other.

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Simultaneous Death - Intestate

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Must prove by clear and convincing evidence heir survived by D by 120 hours.

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Simultaneous Death - Will

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Must prove by clear and convincing evidence beneficiary survived T.

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Simultaneous Death - Joint Tenancy

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Must prove by clear and convincing evidence beneficiary survived T or sever JT into tenancy-in-common.

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Simultaneous Death - CP QCP

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Must prove by clear and convincing evidence beneficiary survived T or sever JT into separate halves.

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Simultaneous Death - Life Insurance

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Must prove by clear and convincing evidence that beneficiary survived T. Otherwise goes to T’s estate.

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Rights of Surviving Spouse and Children - Omitted Spouse

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Surviving spouse of a testator that is not provided for therein takes a statutory share of assets decedent owned at death plus the assets held in any revocable intervivos trust.

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Rights of Surviving Spouse and Children - Omitted Spouse Receives

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The omitted spouse receives:
i. The one-half of the CP and QCP owned by the decedent at death or in any revocable inter vivos trust. – Thus since the omitted spouse already owned the other one-half, the omitted spouse ends up with 100% of the CP and QCP.
ii. A share of the SP of the decedent equal in value to that which the spouse would have received if the decedent had died without ever having executed any testamentary instrument. But in no event is the share to exceed more than one-half the value of the SP in the estate.
iii. For the omitted spouse to take this statutory share, other gifts will have to be abated.

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Rights of Surviving Spouse and Children - Omitted Spouse Exceptions

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iv. Exceptions:
1. The decedent’s failure to provide for the spouse in any testamentary instrument was intentional and that intention appears from the testamentary instrument.
2. The decedent provided for the spouse by transfer outside of the testamentary instruments with the intention that the transfer be in lieu of any testamentary provision.
3. Omitted spouse signed a waiver.

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Rights of Surviving Spouse and Children - Waiver

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Waiver is a voluntary relinquishment of a known right that is in writing, signed before or during marriage, with full disclosure of testator’s finances, and independent counsel by the waiving spouse.
i. Even if no disclosure by T or independent representation for waiving spouse, waiver still valid if 1) waiving spouse had or should have had knowledge of Ts finances; or 2) waiver was in fact fair
ii. In no event however will waiver be enforced if it is unconscionable.

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Rights of Surviving Spouse and Children - Pretermitted Children

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A child born or adopted after the testamentary instrument is executed or not provided for therein will receive an intestate share of the estate, unless it was intentional from the instrument, the devise was substantially all of his estate to the parent of the omitted child, or the testator provided outside the instrument in lieu of a testamentary provision.

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Rights of Surviving Spouse and Children - Domestic Partner
Requirements
Effect of CA Law

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i. Partners must be (i) of the same sex or (ii) of the opposite sex and at least one person is at least 62 years of age, and
ii. Partners must have filed a declaration of domestic partnership with the Secretary of State.
iii. California Law gives domestic partners the same rights and obligations as married persons. Property can be held as CP or QCP.

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Bars to Succession - Homicide

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A person who feloniously and intentionally kills decedent is not entitled to any benefit from D’s estate by will, trust, intestacy, life insurance, joint tenancy or otherwise. Establish conclusively by conviction or guilt by preponderance of the evidence. The killer is deemed to have predeceased the decedent and the anti-lapse statute does not apply. This means that the killer does not take nor does the issue of the killer take.

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Bars to Succession - If one joint tenant feloniously and intentionally kills the other joint tenant

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If one joint tenant feloniously and intentionally kills the other joint tenant there is a severance of the joint tenancy so that the killer does not have a right of survivorship. Note: the killer does not lose his or her ½ interest in the property.

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Bars to Succession - Beneficiary feloniously and intentionally killing the insured

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The killer beneficiary does not take any benefit under the insurance contract.

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Bars to Succession - Elder Abuse

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A person found liable by clear and convincing evidence of elder abuse will be treated as if she/he predeceased decedent. Includes physical abuse, neglect or fiduciary abuse.

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Bars to Succession - No Contest Clause

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Will be enforced unless beneficiary, with reasonable cause, brings contest on grounds of forgery, revocation, or invalid transfer to person who drafted instrument.

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Contracts To Make/Not Revoke A Will or Devise are valid if:

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Contracts concerning wills are valid if:
i. The will or other instrument states the material provision of the contract
ii. There is express reference in the will or other instrument to a contract.
iii. There is a signed writing by the decedent evidencing a contract,
iv. There is clear and convincing evidence of an agreement between decedent and promise that is enforceable in equity, (estoppel) or
v. There is clear and convincing evidence of an agreement between decedent and a third person for benefit of claimant that is enforceable in equity.

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Contracts To Make/Not Revoke A Will or Devise -
Cause of action accrues when:

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Cause of action accrues when decedent dies, except where decedent is engaging in fraudulent conduct that is fraud on the promisee.

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Joint wills probated when:

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Wills of two or more people on one document are probated once when one person dies and again when the other dies.

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Mutual wills

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Separate wills of two or more people which are reciprocal. Husband and wife execute separate wills leaving each other everything.

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Joint and Mutual wills

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Joint and mutual wills have reciprocal provisions on one instrument.
i. The execution of a joint will, mutual will, or joint and mutual will does not create a presumption of a contract to not revoke or make a will
ii. But it may be evidence of a contract, in conjunction with other factors.

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Remedies

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Plaintiff can sue decedent’s estate for damages, specific performance, or a constructive trust remedy.

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Restrictions on Testamentary Dispositions - Community Property

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A testator can only dispose of ½ of the community property.

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Restrictions on Testamentary Dispositions - Quasi Community Property

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A testator can only dispose of ½ of the quasi-community property at death.

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Restrictions on Testamentary Dispositions - Inter Vivos Transfers

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A testator may transfer his QCP in an inter vivos transfer except the transfer is not allowed if deemed illusory & surviving spouse invokes widow’s election.

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Restrictions on Testamentary Dispositions - Widow's election

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The widow can elect to take the testamentary share or the ½ community property.

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Distribution of Estate - After acquired property

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A will passes all property T owned at death including property acquired after the will was executed.

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Distribution of Estate - Stock increases during t's lifetime

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Stock dividends or splits paid during T’s lifetime go to the beneficiary if the stock is owned by T at T’s death.

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Distribution of Estate - Increases os specific devises after T's Death during probate

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Beneficiaries of specific devises (stock dividends, stock splits, rents, cash dividends, interest on indebtedness) receive all increases; however, as a general rule, general devisees do not receive any increase, except interest on gifts not distributed one year after T’s death.

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Distribution of Estate - Abatement (Define)

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The process by which certain gifts are decreased.

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Distribution of Estate - Abatement arises when:

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Abatement arises when it is necessary to pay for the share of the omitted child or omitted spouse or omitted domestic partner. Thus the gifts of devises have to be decreased to come up with the statutory share of the omitted persons.

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Distribution of Estate - Omitted Children/Omitted Spouse, order of abatement is:

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a. First abate property not passing by will or inter vivos trust
b. Then all beneficiaries of T’s will & revocable inter-vivos trust pro rata in proportion to the value of the gift received.

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Distribution of Estate - Abatement distinction between gifts.
Exception

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No distinction is made between specific, general, and residuary gifts, however:
a. Specific gifts exception: The court can exempt a specific gift if abating specific gift would defeat obvious intention of T.

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Distribution of Estate - Abatement order for general debts of T:

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General Debts of T: order of abatement is 1) intestate property, 2) residuary gifts, 3) general gifts to non-relatives, 4) general gifts to relatives, 5) specific gifts to non-relatives, then 6) specific gifts to relatives.

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Exoneration
Common Law
CA Law

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The debt is extinguished:
1. CL: If T devised a specific gift subject to an encumbrance for which T was personally liable, the executor was required automatically to pay off the debt before passing the property to the beneficiary.
2. CA Law does not require automatic exoneration of debt encumbering specific gifts. Rather, the devisee takes the specific gift subject to the encumbrance, unless T’s will states otherwise (not general direction “to pay all my just debts”).

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Gifts Causa Mortis

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A gift of personal property made in contemplation of imminent death that is delivered, either actually, symbolically, or constructively (modernly found whenever donor has done everything possible to effectuate delivery & no issue of fraud & mistake).

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Gifts Causa Mortis - Survival

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If donor survives the peril, the gift is revoked by operation of law.