Wills And Decedents' Estates

Front 1

At the testator's death, under which state's law will the validity of the testator's will be judged?

Back 1

A will is valid if valid in the state in which the testator was domiciled at the time of execution, or the state in which the testator died.

Front 2

What are the five elements of a valid will?

Back 2

TIMAS

1. Testamentary age (18 yrs.)

2. Intent to devise at the time the will was executed. (Rational intent presumed, requiring "clear, cogent and convincing evidence to rebut.)

3. Mental capacity

4. Attested to by two competent, non-interested witnesses.

5. Signed by testator (or another authorized person in testator's presence and "line of sight").

Front 3

To have sufficient mental capacity to execute a valid will, what must a testator remember and understand?

Back 3

POT

1. her Property and the extent thereof.

2. natural Objects of her bounty such as family members.

3. Testamentary effect of executing the will.

Front 4

Must the two witnesses actually witness the testator sign the will?

Back 4

No. The testator may acknowledge his signature on the will to them. But the two witnesses must sign in the simultaneous presence of one another.

Front 5

Can one of the attesting witnesses be an interested taker under the will?

Back 5

There is a rebuttable presumption that an interested taker cannot take under the will unless he receives legal title in a fiduciary capacity only (e.g., as trustee) but is entitled to an intestate portion.

Front 6

If the 5 TIMAS elements of a valid will are not met, is the will invalid?

Back 6

Not necessarily. The doctrines of "substantial performance" and the court's "dispensing power" allows probate admission where there is a small technical deficiency or failure but the grantor's intent is clear.

Front 7

May a will incorporate by reference a separate writing?

Back 7

Yes, but only if the separate writing (1) is in existence at the time the unrevoked will is executed, (2) is in the testator's own handwriting or signed by the testator, (3) describes the items and recipients of the personal property and (4) is sufficiently described and identified in the will.

Front 8

May extrinsic evidence be admitted to show intent?

Back 8

Yes, ambiguous terms and multiple interpretations of a taker's identity are admissible to show intent.

Front 9

May a future taker be determined by reference to acts and events that have significance apart from their effect upon the dispositions made by the will.

Back 9

Yes.

Front 10

What happens to a testator's property acquired after execution of his will?

Back 10

All after-acquired property passes under the will unless the grantor's intent to the contrary is manifestly clear.

Front 11

What is the "slayer statute"?

Back 11

An intentional, felonious murder forfeits any interest in any testate or intestate distribution of the victim.

Front 12

May a testator disinherit his existing spouse and children?

Back 12

Yes, but the evidence must be clear and convincing. If the disinherited heir is survived by children they may still take by representation unless they also were specifically disinherited.

Front 13

Does adoption create the full biological parent-child relationship for inheritance purposes?

Back 13

Yes, but the child loses their intestate inheritance rights from their natural parents.

Front 14

How are half-blood children treated under the UPC?

Back 14

The same as whole-bloods.

Front 15

If a child is born or adopted after the will was executed, can he take under the will if not named?

Back 15

Yes, they qualify for a forced share (from the other beneficiaries) equal to their share had the decedent died intestate.

Front 16

If a father has not acknowledged a child born out of wedlock, can the child take under the will as if a natural or adopted child?

Back 16

Yes, but the father's paternity must be adjudicated in a DNA-based paternity suit.

Written acknowledgment of the child by the parent confers right of inheritance.

Front 17

What effect does a divorce have upon the provisions of a will favoring the ex-spouse?

Back 17

All provisions in the will favoring the ex-spouse become automatically revoked, unless the will expressly states that the spouse's interest is to survive any divorce or a court so orders.

Front 18

What happens if a will fails to name or provide for a devise to a later-married spouse (post-testamentary)?

Back 18

The spouse takes an amount equal to the higher of the intestate share or one-half of the testator's community or quasi-community property. A court may also determine that a smaller share is more in keeping with the testator's intent.

Front 19

What happens if a named beneficiary predeceases the testator?

Back 19

If their devise was specifically conditioned upon them surviving and the deceased beneficiary is a blood relative of the deceased and if they have lineal descendants, the descendants take the devise in their place under the antilapse statute.

Clear testamentary language indicating that non-survivors descendants were not to take controls over the antilapse.

Front 20

If a named beneficiary refuses or disclaims a devise under the will and no alternative taker is specified, what happens to the property left to the disclaimer?

Back 20

It is added to the residue of the estate.

Front 21

What happens if a defined asset was to go to a particular taker and that property was transferred or destroyed prior to death?

Back 21

Under common law, the taker took nothing.

Under the "replacement property" doctrine, the taker may receive specifically identified replacements from the same property such as substituted stock or sale or fire proceeds.

Front 22

Does the devisee take property that becomes subject to a liability between the date of the will and the testator's death free of the debt?

Back 22

At common law, yes, the residue of the will paid the liability.

Under the UPC, the property is taken subject to the liability unless the will expressly states that the liability in question does not attach to the asset.

Front 23

When must a codicil comply with all the formalities of a will?

Back 23

If it creates a new testamentary device -- e.g., if it increases the size of a gift to specific takers. However, merely decreasing the size of one gift by adding to the residue does not create a new testamentary device.

Front 24

How may a will be revoked?

Back 24

A testator may expressly revoke the whole or part of the will by (a) destroying the document (or asking someone to destroy it in his presence) or (b) executing a subsequent witnessed instrument.

Front 25

What happens to any codicil if the will to which it relates is revoked?

Back 25

It too is revoked unless contrary to the grantor's intent.

Front 26

May a will be partially revoked?

Back 26

Yes. If it increases the residue of the estate, e.g., a gift to a specific taker is taken away, then partial revocation does not need to comply with the formalities of the will.

Front 27

Does failure of a second will or codicil revive a former will which was wholly revoked in the second will?

Back 27

No, under common law. Yes, under the Dependent Relative Revocation, which provides that if the grantor would not have revoked the first will wholly or in part if he knew that the second will or codicil would fail, a court may revive the first will.

Front 28

When is a nuncupative (oral) will valid?

Back 28

Nuncupative wills are invalid except to pass personal property by a member of the armed forces or merchant marine. Any other person is limited to passing $1,000 of personal property. Two witnesses must be present and heard the testator's oral expression of intent.

Front 29

Are holographic wills valid in CA?

Back 29

Yes. The holographic dispositive scheme must be intended to be a will substitute, and the property and intended beneficiaries must be specified. If undated, a holographic will is enforceable against another will if it can be established that it was executed subsequent to the other will.

Front 30

Is a contract to make a future devise based upon consideration such as rendering future services valid?

Back 30

Yes, if it can be shown that

1. the contract existed

2. the contract's terms were clear

3. that the consideration (e.g., services) was given in reliance upon the contract

4. there exists some acknowledgement of the obligation by the decedent while still alive.

Front 31

If a community property agreement is inconsistent with a later devise, which controls?

Back 31

An inconsistent later devise is not effective as to property covered under the community property agreement unless there was a subsequent legal divorce.

Front 32

May a mutual/joint will be revoked?

Back 32

Yes, even if both parties agreed not to revoke, but only while both testators are alive. The agreement not to revoke becomes irrevocable as to the survivor upon the death of the first testator.

Front 33

What rights does a surviving spouse have that are superior to the decedent's testamentary disposition scheme?

Back 33

In CA, the surviving spouse must end up with at least 1/2 of all CP and quasi-community property.

Front 34

What rights do surviving children have that are superior to the decedent's testamentary disposition?

Back 34

If there is no surviving spouse but minor children survive, the court may award up to a certain amount (if land) or a lesser amount (if only personal property) for their care and support.

Front 35

Do divorce decree provisions -- e.g., decedent spouse was required to maintain insurance for kids with ex-wife under divorce decree -- trump a current spouse's beneficiary status?

Back 35

Yes.

Front 36

Who has standing to contest a will and when must they file any petition?

Back 36

Only those who would gain if the will was denied probate has standing, and they must file a petition within 4 or 6 months immediately following the opening of probate.

Front 37

What are the primary grounds to contest a will?

Back 37

One of the following must be show by clear, cogent and convincing evidence.

1. Lack of testamentary capacity

2. duress

3. undue influence

4. fraud in the inducement (willful deceit causing testator to revise or make will in certain manner)

5. fraud in the execution (testator didn't know what he was signing)

Front 38

What are the four elements creating a rebuttable presumption of undue influence?

Back 38

FALO

1. Fiduciary

2. Active participation

3. Unusually large devise

4. Other factors - e.g., age or mental health of testator

Front 39

What is the Dead Man's statute?

Back 39

Prohibits an interested party -- one who stands to gain or lose in a transaction -- from testifying as to statements of the decedent concerning the transaction.

Front 40

What is an "in terrorem" clause?

Back 40

Provides that a beneficiary contesting a will forfeits his share of the estate. Will not operate if contest is brought in good faith and with probable cause.

Front 41

If persons die simultaneously who are intestate takers or whose wills names the other person as a taker what happens?

Back 41

The heir is assumed to predecease the decedent unless there is clear evidence to the contrary (UPC requires survival by 120 hours). The property of each thus passes to their own alternative specified takers, not the heirs of the other.

Front 42

How is separate property divided if the decedent dies intestate?

Back 42

If no other relatives, all goes to surviving spouse or domestic partner.

If one child (or issue of child) survives, split evenly between spouse and child.

If more than one child (or issues of children) survives, 1/3 to spouse and 2/3 split among children.

If no surviving issue, surviving spouse takes 1/2 and other half goes to surviving parents or surviving issue of parents.

Front 43

How is CP divided if decedent dies intestate?

Back 43

The spouse generally takes the decedent's half interest in community, quasi community or jointly owned property. (This means the surviving spouse takes 100% CP.)

If no surviving spouse, issue take all.

If no surviving spouse or issue, collateral relatives takes all: siblings, grandparents, aunts, uncles and first cousins.

Front 44

What is the primary difference between per stirpes and per capita distributions?

Back 44

Under per stirpes, you begin the distribution at the first level even if no on from that level outlived the decedent. Under per capita, you begin the distribution at the first level someone is living.

Front 45

What economic powers are generally excluded from a valid power of attorney unless the documents specifies to the contrary?

Back 45

The power to make or amend life insurance contracts, the power to make wills, the power to make donative transfers, trust activities and the power to disclaim property.