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115 Cards in this Set

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What does probate mean?
It is the process by which an individual must prove the validity of a will and obtains the court's assistance in distributing the assets pursuant to that instrument.
What does non probate mean?
Situations where you don't have to go to court to transfer the assets at death. Examples: Savings bonds, Life Insurance, Joint Tenancy.
Are guardianships used for minors or adults?
For whom are conservatorships used for?
disabled adults
What does it mean when a person dies testate?
They died and left a will.
What does it mean when a person dies intestate?
They died and left no will.
What are the situations where intestate succession apply?
1. No will
2. Asset ommitted from will.
3. Failed will (but a prior instument that is effective)
What is an heir?
Any person, including the surviving spouse who is entitled to take property of the decident by int3estate succession.
What is "issue" pursuant to Section 50 of the probate code?
Issue means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determine by the definitions of child and parent.
Does intestate sucession apply to assets that are governed by third party contracts?
What is the significance of probate code 6400?
It concerns property subject to intestacy provisions. This is property not effectively disposed of by will or other means.
Discuss surviving spouse laws.
There are no common law marriages in Ca. However, if you have a common law marriage in another state (that recognizes this) and you move to Ca, you are considered married under Ca law, because Ca recognizes the law of other states.
What is a putative spouse?
Any person who has cohabitated with another to whom he is not legally married in the good faith belief that he was married to that person. Jurisdictions allow a putative spouse to take their share of the decedent's estate.
What is a domestic partner?
Partner who are sexually intimate and who are financially interdependent.
May adults who volutarily live together and engage in sexual relations competent to contract respecting their earnings and property rights?
yes, such contracts will be enforced unless expressly or inseparably based upon an illicit consideration of sexual services. If the service were provided that can be attirubted to monetary value (not illegal) this is the type of service which one can expect to be compensated unless there is evidence of a contrary intent.
What does probate code 6401 cover?
It involves the intestate share, community or quasi-community property, separate property for the surviving spouse.
What is community property?
Property that is gained during the marriage by the labor of the spouses.
What does the surviving spouse get in community property under 6401?
Surviging spouse gets 1/2 of the community property that belongs to the decident under Section 100, unless the decedent has willed away his 1/2. so basically wife gets 100 percent of the community sproperty cause she already had 50% when husband was alive.

This section provides the same for quai-community property.
What is separate property?
Property that you acquired before marriage, property that was gifted to you during the marriage, or property that you inherited during the marriage.
Under 6401, what does the surviving spouse receive if the decedent dies and does not leave any surviving issue, parents, siblings or ussye if a deceased sibiling?
The surviving spouse gets all of the property.
Under 6401, if the surviving spouse leaves only one child or the issue of one deceased child, what does the surviving spouse get?
1/2 of the intestate estate.
Under 6401, if the decedent leaves not issue, but leaves a parent or issue of parent, what does the surviving spouse get?
1/2 of the intestate estate.
Under 6401, if the decedent leaves more thatn one child, what does the suriving spouse get?
1/3 of the intestate estate. The surviving children would take 2/3 between them.
Under 6401, if the decedent leaves one child and the issue of one or more decased children, what does the surviving spouse get?
1/3 of the intestate estate.
Under 6401, if a decedent leaves no surviving children, but the grandchildren from two or more deceased children. What does the surviving spouse get?
First surviving generation takes per capita remaining; generations take per stirpes.
What is probate code 6402?
Intestate Estate not passing to surviving spouse. Only relates to seperate property. The part of the intestate not passing to the surviving spouse under section 6401 or the entire intestate estate if there is no surviving spouse.
Under 6402, how would children of the decedent take?
If there are children, entire estate goes to the children. Issue take equally if they are all of the same degree of kinship, but if unequal, those of more remote degree take in the manner of section 240.
Under 6402, what happens if there are no surviving issue?
Then we look to the decedent's parent or parents equally. Basically, if there are no children, entire estate goes to the parents.
What happens under 6402 what happens if there are no surviving issue or parents?
Then we look to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of no unequal degree, the same as under section 240. Basically, if there are no parents, the entre estate goes to siblings/nieces/nephews, per capita at the first surviving generation, per stirpes therafter.
What is the significance of section 240?
Division in equal shares. The most important code section. If a statute calls for property to be distributed or taken in in the manner provided in this section the property shall be divded into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that of that generation who leave issue when leaving, each living umember of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the ssame manner among her or her then living issue. If every child is deceased, you have to distribute the shares equally at the grandchildren level. So you find the first generation where at least one person is living, and you distriubte the shares at that level.
May beneficiaries rearrange intestate succession?
if the intestate heirs are not satisfied with the distribution under the intestacy statute, they normally can divide up the deceent's assets in a different way. UPC 3-912 contains a provision authorizing private agreements among successors. However, tax consequences may be triggered.
What is a disclaimer?
Where a party can inherit property, but does not want it.
How is a person treated in california when they disclaim a gift?
they will be treated as if they have died before the grantor. Therfore, the second beneficiary of the grantor will get the property. The disclaiming party will not get any say as to who gets the property, it goes to the default person because that was what the grantor's intent was.
What is the significance of section 6403 with Intestate sucession.
Failure to survive decedent by 120 hours, deemed predeceased. Applies to intestate not to wills. Before the surviving spouse can take the intestate sucession assets of the decedent, she must survivie by 120 hours after the decedent. If this is not met, then they will be treated as if you have predeceased him and you can not take the property. This must be established by clear and convicing evidence.
Discuss unborn relatives of decedent under 6407.
Relatives of the decedent conceived before the decedent's death, but born after his death are treated as if they were already born at the time of deceden't death and therefore take their intestate share. Rebuttable presumption that child born 300 days after deceden's death was not conceived prior to his death.
What happens in a case of simultaneous death?
Under probate code 220:
* If testators die from the same cause and the order of death cannot be determined by clear and convicing evidence, they are said to have died simultaneously.
* Probate both estates as if each had outlived the other.
* Keeps property in the bloodline and avoids double taxation issues.
* For life insurance, presumption is that the beneficiary died first.
* For community property, each gets one half of the estate.
* For joint tenants, each gets 1/2 of the estate.
How is a parent-child relationship established?
Under 6450:A relationship of parent and child exists for the purpose of determining intestate succession by, through, or from a person in the following circumstances:
(a) The relationship is of parent and child exists between a person and the person's natural parents, regarless of the marital status of the natural parents
(b) The relationship of parent and child exists between an adopted person and the person's adopting parent or parents.
What must happen if a party is seeking to take from a child?
You as an ancestor )non-married parent, natural parent, etc) must show that you acknowledged the child or supported the child.
Discuss adoption under 6451.
An adopted child is treated the same as a natural child for purposes of intestate succession from the adoptive parents.
Generally, an adoption severs the relationship of parent and child between the adopted person and a natural parent of the person unless:
1. The natural parent and the adopted child lived together at an time as parent and child.
2. natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the persons birth
May the natural parent of an adopted child inherit from the child?
No, it is considered as though the family never existed for purposes of this intestate succession.
Discuss out of wedlock births
Section 6452 if a child is born out of wedlock, neither a natural parent nor a relative of that parent inherits from or through the child on the basis of the parent and child relationship between that parent and the child unless both of the folowing requirements are satisfied:
1. The parent or a relative of that parent acknowledged the child.
2. The parent or a relative of the parent contributed to the support of the care of the child.
How are natural parents established?
Pursuant to 6453, the relationship can be established in any of the following manners:
1. A natural parent and child relationship is established where that relatonship is presumed and not rebutted pursuant to the uniform parentage act.
2. A natural parent and child relationship may be established by the Uniform parentage Act
3. A court order entered during the fathers lifetime declaring paternity
4. Paternityh is established by clear and convicing evidence that the father has openly held out the child as his own
5. It was impossible for the father to hold out the child as his own and paternity is esablished by clear and convicing evidence.
May a foster child or stepchild inherit from their foster parent or step parent?
Pursuant to 6454 For the purposes of determining intestate succession by a person or the persons issue, from or through a foster parent or steparent, the relationship of parent and child exists between that person and the parent (step or foster) if both of the folowing requirements are met:
1. Relationship begain during the persons minority and continued throughout the joint lifetimes of the parent
2. It is established by clear and convicing evidenc e that the foster parent or stepparent would have adopted the person but for a legal barrier.
What is equitable adoption?
6455 Doctrine that nothing affects or limits application of the judicial doctrine of equiable doctrine for the benefit of the child or the child's issue.
May the murderer of the decedent take?
No, the killer is disqualified if the killing was felonious (Without legal justification) and intentional. Probate court has the power to make its own determination of intent and legality regardless of what happens.
What is an advancement?
An intervivios gift from the decedent, prior to his intestate death with the intent that the gift serve as a portion of the recipients intestate share.
What factors must be met in order for an advancement to be taken against the heirs share of his intestate share?
Only one of the following must be met:
1. Decdent puts in writing that the fit is to be deducted from the heirs share of the estate.
2. The heir acknowledges in writing that the gift is to be deducted or is an advancement.
Is expectancy a property right open for assignment?
No, it is not a property right, only a hope or wish.
What is a release?
Heir contracts with decedent prior to death to release any claim he may have on the estate for money right now.
What is the fear of hell statute?
Dealt with under the undue influence doctrine. Presumption that if you gave your estate to charity within six months of your death, that the church exerted undue influence on you. Not recognized in california.
Who are persons who make a will?
Under 6100 they are:
1. indivdidual 18yrs or older with sound mind.
2. A conservator for the conservatee if permission is granted by court. However, a person who is mentally competent to make a will may revoking or amending that will made by the conservator
When is a person considered not mentally competent to make a will?
6110.5 An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
1. The person does not understand the testamentary nature of the act
2. the person does not remember their property or situation of their estate or not remember and understand relations to living descendants.
Who is mentally competent?
34.5 A person is mentally incompetent part of the time but who has lucid intervals durig which he or she comprehends fully the significance of a donative transfer can, in the absence of an adjudication or statute that has contrary effect, make a valid will or a valid inter vivos donative transfer, provided such will or transfer is made during a lucid interval.
What are the requirements of a will pursuant to the Statute of wills 6110?
1. must be in writing
2. must be signed by the testator
3. be authenticated or signed in presence of two or more witnesses.
What is a holographic will?
6111 A will that does not comply with 6110 (attested wills) is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
What are the requirements of a witness?
1. Must be competent at time of signing.
2. Witness can not have a pecuniary interest in the will
What happens if a witness has a pecuniary interest in the will?
Under the commonlaw, the witness would get nothing.

Modernly, If an interested witness signs the will, then she is presumed to have exerted undue influence on the testator, unless she is a supernumerary witness. If the presumption of undue influence is not rebutted, then the intrested witness takes no more than their intestate share, and any bequest in excess of the intestate share is purged to the residuary clause if any, or passes by intestacy.
What is testamentary intent?
There must exist an unequivocal present testimentary intent to give away the property.
Concerning a sham will, would extrinsic evidence be allowed to come in to determine if the document is not a will?
In a case where husband and wife executed each other's will, will the court allow both wills for equitable reasons?
What is a conditional will?
A person is about to be placed in a life-threating situation. A will that expressly requires the existence of a certain condition to be valid is only valid if the condition comes to pass.
Are oral wills recognized in california?
What is intergration in regards to wills?
The will must have some physical connection or itnernal sense of connectio to prevent additional pages from being slipped in, as well as to ensure that all pages are present.
What is a codicil?
It is an amendment to a will. In Ca, treated the same as a will It reincorporates all of the original information and makes a change and executes it.
What are the requirements for a codicil?
1. Must be executed with the same formalities as any other will.
2. Republication of awill by codicil is usually through of as the equivalent of re-execution of the will.
What is incorporation by reference?
A will may dispose of property in accordance with documents or events that are outside the will if the document or event has an indpendent significance apart from the testmentary distribution.
Discuss reference to acts and events.
6131 A will may dispose of property by reference to acts and events that have significance apart from their effect upon their disposition made by the will, the acts and events occur before or after the execution of the will or before or after the testator's death. A writing in existence when a will es executed maybe incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. (have to have the itent to incporation this instrument at the time of the execution of the will.)
Discuss extrinsic evidence.
6111.5 It is admissible to determine whehter a document constitutes a will pursuant to 6110 or 6111 or to determine the meaning of a will or the portion of a will if the meaning is unclear.
What is patent ambiguity?
Ambiguity that is on the face of the will itself. No extrinsic evidence allowed to interpret the ambiguity because it was not needed to discover the ambiguity.
What is latent ambiguity?
Ambiguity that is disclosed by extrinsic evidence. Extrinsic evidence is allows to interpret the ambiguity because it was used to discover the ambiguity.
What is the california rule regarding extrinic evidence?
It is always admissible but it can be used to give meaning to a word if it is not reasonably susceptible to such a meaning.
How may a will be revoked?
1. By a subseqent will, which revokes the prior will or party expressly or by inconsistency.
2. Burning, being torn, canceled, obliterated or destroyed with the intent and the purpose of revoking it by the testator or by another person in the testators presence and by the testators direction.
Discuss revocation and duplicate wills.
6121 A will executed in duplicate or any part thereof is revoked if one of the duplicates is burned, torn canceled, obliterated, or destroyed with the intent and for the purpose of revoking it by either 1. the testator or 2. another person in the testator's presence and by the testator's direction.
Discuss revocation by inconsistency.
we look at the extrinic evidence first. A codicil reaffirms the orignal document and makes the amendment. When you see unequal treatment of heirs the curts does not like that. It is not fair and it it does not look fair on on the face. It is a question of intent. WHat did the testator intend to do?
What happens if there was an ineffective attempt to revoke>?
If a testator intends to revoke a will by act to the document and the will is not destroyed by physical act because another person fraudulently intervened to prevent the destruction, the will reamins in effect. It is valid. The revocation did not take place even if there was the intent to do so.
Discuss destruction will with intent to revoke: Presumption.
6124 If the testators will was last in the testators possession, the testator was competent until death, and neither the will nor a duplicate of the will can be found after the testators death, it is presumed that the testator destroyed the will with intent to revoke it.
What is partial revocation?
It is by physicial act only. You can strike out a paragraph or more from the will without revoking the entire will.
In california, may holographic wills have changes made to them?
Yes, we can in california alter halopgrahic wills by making hand changes theron without signing the will again.
What is Dependent Relative Revocation?
Situation where the revocation is not effective. Only allows you to find that the revocation did not occur.Known as the law of Second Best. The revocation is dependent upon some other fact being as the testator believed.
Discuss when a partial or complete revocation of a will is presumptively ineffective>
If the testator made the revocation:
1. In connection with an attempt to achieve a dispositive objective that fails under applicable law
2. Because of a false assumption of law, or a false belief about an objective fact, that is recited in the revoking instrument or that is established by clear and convicing evidence.
DO we apply Dependent Relevant Revocation if it does not further the testator's intent?
no, not ever!
T/F The theory of DRR can be based on one of mistake or conditional revocation?
What is the two-fold process of DRR?
1. Treats revoking instument as not being revoked and
2. Accesses if it is preferential to the alternative. (In california, we could use the anti-revival exception)
On exams and the Bar, would you apply anti-revivial and DRR to a fact pattern?
yes, always
T/F A valid subsequent instument may revive a previously revoked will merely by incorporationg it by reference or stating that it is revived?
T/F If the subsequent instrument is not valid, then the revivial of the previously revoked will depends on the testators intent?
True, good evidence will do this.
What is the anti-revival statute in california?
(a)if a 2nd will, which had it remained effective at death, would have revoked the first will in whole or in part, is therafter revoked by acts under 6120 or 6121 the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the stestators comtemporary or subsequent declarations that the testator intended the first will to take effect as executed.
If a 2nd will which, had it remained effective at death, would have revoked the first will in whole or inpart, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extend it appears from the terms of the third will that testator intended the first will to take effect.
What is the basic premise behind the anti-revisial legislation in california?
You can not tear up your second will with the intent to revive the first instrument.
T/F Contracts to a will are enforceable under a contract theory?
yes, look at section 150 and 140
Discuss joint or mutal wills.
Two or moe people execute one instument intended to serve as the will of either or both. Assumption is that there is a contract involved.
What are the clasifications of testamentary gifts?
1. specific
2. general
3. demonstrative
4. general pecuniary gift
5. residuary gift.
6. Annuity
What is a specific gift?
Its a transfer of specifically indentifiable property
What is a general gift?
its a transfer from the general assets of the transferor that does not give specific property.
What is a demonstrative gift?
It is a general gift that specifies the fund or property from which the transfer is primarily to be made.
What is general pecuniary gift?
It is a pecuniary gift within the meaning of 21118
What is an annuity?
Its a general pecuniary gift that is payable periodically.
What is ademption?
It depends solely upon whether the subject matter of a specific devise exists as part of the testators estate at death, and the testators intend cncerning the validity of the devides is irrelevant.
Discuss specific gifts of securities.
If the tranferor intended a specific gift of certain securities rather than the equivalent value thereof, the beneficiary of the specific gift is entitled only to:
1. As much of the transferred securities as is a part of the estate at the time of the transferors death.
2. any additional or other securities of the same entitity owned by the tranwsferor by reason of action initiatied by the entity.
3. securities of another entity owned by the transferor as a result of a merger, consolidation, reorganisation or other similar action initiated by the entity.
4. Any additional securities of the entitiy owned by the transferor as a result of a plan of reinvestment if it is a regulated investment company.
Discusss specific gifts, recipient rights under 21133.
A receipient of a specific gift has the right to the remaining property specificially given and all of the following:
(a) any balance of the purchase price owning from a purchaser tto the transferor at death by reason of the sale of the property.
(b) any amount of eminent domain award for the taking of the property unpaid at death
(c) any proceeds upaid at death on fire or casualty insurance on the property
(d) Property owned by the transferor at death as a result of foreclosure, or obtained in lieu of foreclosure, of the the security for a specifically given obligation.
Discuss specifically given property sold by conservator; Beneficiaries rights: Emininent domain awards pursuant to 21134
(a) if specifically given property is sold by a conservator, the beneficiary of the specific gift has the right to a general pcuniary gift equal to the net sale price of the property.
(B) If an eminent domain award for the taking of specifically given property is given property is paid to the conservator, or if the proceeds on fire or casualty insurance on specifically gifted property are paid to a conservator, the recipient of the specific gift has the gift to a general pecuniary gift equal to the eminent domain award of the insurance proceeds.
What is the intent theory in regards to ademption?
Ademption depends upon the testators subjective intent, determine on a case by case basis.
What is the identity theory in regards to ademption?
Traditional rule. Ademption depends solely upon whether the subject matter of a specific devise exists as part of the testators estate at death, and the testators intent concerning the validity of the devise is irrelevant. If the item is not in yoruestate at your death, the specific devisee does not receive it and it cannot be traced.
What do we try to do to get away from extinction in regards to ademption?
We try to classify the gift as something other than a specific gift. Perhaps as a general gift.
What is abatement?
21423 When there is not enough money to satisfy the estates obligations, the bequests abate in the following order:
* Any intestate property- any property not disposed of by the govt
* Any residual property
* General gifts to persons other than the transferor's realitives
* Specific gifts to persons other than the transferor's realatives
* specific gifts to the transferors realtives
What is an exoneration?
Will may provide that a bequest of a piece of property is to be made free and clear of any liens-- executor must pay off the mortgage before transferring title to the legatee.
What is a satisfaction?
(do not confuse with advancement) A testator may give an inter vivos givt to one of the legatees in the will ass a partial or full satisfation of the testamentary gift.
What are the requirements of a satisfiaction?
1. intent of the testator must be in writing at the time of the gift or;
2. recipient acknowleges in writing, at any time, that the gift is in satisfaction of his testamentary rights
3. The gift is valued at the time it is given.
Discuss pretermitted children under 21620
A child born after the execution of a will, but not included in the will, is presumed to have been inadvertently omitted and therefore takes his intestate share unless;
* it appears from the face will will that the ommission intentional
* If one or more siblings is living at the time of the execution of the will, and the will leaves substantially all of the estate to the ommitted child's parent.
* There is a transfer outside the will in lieu of a testamentary gift, such as a trust, life insurance, or joint tenancy with the child.
What is an insane delusion?
An unrasonable belief in certain facts which are not tru, and which belief is held beyhond all reason, evidence and probability.
Discuss Duress, Menance, Fraud or Undue Influcence regarding a will
6104 The execution or revocation of a will or part of a will is ineffective to the extent that the execution or revocation was procured by duress, menace, fraud or undue influence.
What is fraud in the execution?
Occurs when the testator is defrauded as to the content of the instrument they are signing.
What is fraud in the inducement?
Occurs when the testator is intentionally misled in forming a testamentary intention that she would not otherwise have formed.
What are some categories in which fraud can be reported in regards to wills?
1. inducing or preventing an inter vivos conveyance
2. in the procuring of the execution of a will
3. in the prevention of the execution of a will
4. in causing the revocation or alteration of a will
5. in the prevention of the reocation or alteration of a will
6. in the destruction, concealment, or spoliation of a will.
Must a will be probated?
No, the testator can not be there to object if the rest of the family agrees.