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283 Cards in this Set
- Front
- Back
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Generally a will is a
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document by wh a person directs his or her estate to be distributed upon death.
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codicil
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supplement or addition to a will, not necessarily disposing of the entire estate but modifying, explaining or otherwise qualifying the will in some way. When admitted to probate, the codicil becomes a part of a will.
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Probate
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judicial procedure by wh a testamentary doc is est. to be valid or where decedent's (Dec's) heirs are judicially determined.
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intestacy
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state or cond/n of person dying w/o a will or from a partial or total failure of a will.
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Dec's share of community prop (CP) passes to
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surviving spouse or domestic partner (DP). Other 1/2 already belongs to surviving spouse or DP.
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DECs share of (Quasi community prop) QCP passes to
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surviving spouse or domestic partner in absence of a will. Other 1/2 already belongs to surviving spouse or domestic partner.
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Who can register as DPs under CA law?
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(1) same-sex couples &
(2) unmarried, opposite sex couples 62y/o or+ receiving SocSec |
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Under CA intestacy statute, the surviving spouse or DP gets what % of separate prop (SP)?
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1. 1/3 or 1/2 depending on the # of children who survive Dec.
2. ALL of SP if no surviving issue, parent, sibling or issue of deceased siblings, |
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If Dec is survived by more than one child, by one child & issue of one or more deceased children or by issue of 2 or more deceased children, the surviving spouse or DP takes
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1/3 of Dec's SP; remainder goes to issue.
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If Dec is survived by one child or the issue of one deceased child or by no issue but by a parent or parents or their issue of issue of either parent the surviving spouse or DP takes
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1/2 of Dec's SP; remainder to issue
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If Dec is not survived by issue, parents, siblings or issue of siblings, the surviving spouse of DPtakes
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all of Dec's SP
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SP not passing to surviving spouse or DP goes 1st to
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surviving issue (descendants) who are all = degree of kinship to D (e.g. all children)
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If no surviving spouse or DP & no issue, prop of intestate Dec goes to
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Dec's parents
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If no surviving spouse or DP, no issue, no parent survive, prop of intestate Dec goes to
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issue of parents
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If no surviving spouse or DP, no issue, no parent, no issue of parents survive, prop of intestate Dec goes to
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grandparents or their issue
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If no issue, no parent, no issue of parent, no grandparents or their issue survive prop of intestate Dec goes to
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issue of predeceased spouse or DP
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If none of above survive, then
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to next of kin
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If no next of kin
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to parents of predeceased spouse or DP or their issue
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if no next of kin or relatives of predeceased spouse or DP
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property escheats to state
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per capita means
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dividing equally among individuals usu. in the same class
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per capita w/ right of representation means
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descendants of a deceased person together take the share the deceased person would have taken, dividing equally among them including those who have predeceased Dec. Also called per stirpes
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Intestate prop going to issue passes per capita if
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all issue are of equal degree of kinship to the Dec
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Intestate prop going to issue passes per capita w/ right of representation if
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issue survive & are of unequal degree of kinship.
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Intestate prop going to issue of parents passes per capita if
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all the takers are of equal degree of kinship to the Dec
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Intestate prop going to issue of parents passes per capita w/ representation if
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the takers are of unequal degree of kinship to the Dec
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If intestate prop going to "next of kin,"
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the relative in closest degree of kindred takes all except that if two or more collateral relative are of the same degree, those who claim through the nearest ancestor take to the exclusion of others.
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When does a portion of Dec's intestate prop go to the heirs of a predeased spouse or DP?
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when the Dec obtained the assets from the spouse or DP w/in the time frames & cond/ns outlined in CA probate law
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If the Dec obtained real prop from a previously deceased spouse or DP, it goes to the heirs of that person if
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the spouse or DP died not more than 15 yrs before the Dec
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If the Dec obtained personal prop from a previously deceased spouse or DP, it goes to the heirs of that person if
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there is a record of ownership from the spouse or DP who died not more than 5 yrs before the Dec & the Dec leaves no spouse (remarriage) or DP nor issue.
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Simultaneous death act provides
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that when 2 persons die under sit making it impossible to determine the order of their deaths ea person is presumed to have survived the other for purposes of distributting their respective estates
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CA's simultaneous death act is triggered if
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it cannot be established by clear & convincing evidence that the person who would otherwise be the heir survived the Dec by 120 hrs.
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Exceptions to simultaeous death act include
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husband & wife or DP, insured & beneficiaries, joint Ts
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If beneficiary disclaims an interest that would other pass to the person
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the interest passes as though the disclaiming party predeceased the Dec.
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What procedure must beneficiary follow to disclaim an interest that would other pass to her?
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1. wiriting
2. signed by disclaimant 3. ID Dec 4. describe the interest 5. state what & extent of disclaimer 6. must be filed w/in reasonable time after beneficiary learns of interest |
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What is considered a "reasonable time" for filing a disclaimer?
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9mos after death of the Dec or 9 months after the date the interest becomes indefeasibly vested.
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May a guardian, conservator or personal representative disclaim a gift on behalf of an infant, incompetent or Dec?
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Yes
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Can an interest be disclaimed if the heir or beneficiary has accepted the property?
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No
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Can a spendthift clause or other limitation prevent a disclaimer?
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No
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Can a disclaimer be used to defeat creditors' claims?
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Yes but not to defeat a fed tax lien.
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Does a child conceived before but born after a Dec's death inherit as if she was born in Dec's lifetime?
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Yes
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A child conceived & born after Dec's death inherits as if she had been born in his lifetime if Dec's rep proves by clear & convincing evid:
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1. Dec authorized in signed writing the use of his genetic material for posthumous conception of his child
2. the person designated to manage the genetic material gave written notice, w/in 4 mos of Decs' death certificate, to the personal rep that the Dec's genetic material was available for posthumous conception & 3. the child was conceived in utero using the genetic material w/in 2 yrs of Dec's death. |
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Ca's "transplantation theory" re adopted children means
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adopted child has full rights to inherit by, from & through his adoping parent & their relatives--& they through him.
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Normally how does an adoption legally effect the natural parent-child re/ship?
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severs it
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Situations in wh an adoption does not severe the natural parent child re/ship
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1. natural parent was married to or cohabiting w/ other natural parent at time child conceived & died before child's birth &
2. the adoption was by a spouse or DP of either natural parent of the adopted person or after the death of either natural parent. |
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Step children & foster children may be treated by court as descendants of the stepparent or foster parent if
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they were held out to the world as the parent's own child (adoption by estoppel)
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Nonmarital children in many states inherit
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by & through their mother but not through their father unless paternity is established
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How is paternity of nonmarital children established?
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1. subsequent marriage of the parents
2. adjudication of paternity during the father's lifetime 3. clear & convincing proof of paternity after the father's death. |
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Statutes allowing children to inherit through their mothers but not through their fathers violate
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the Equal Protection Clause
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Under CA probate code, where there is a parent child re/ship (mother or father)
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inheritance rights are provided.
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W/ a father, a parent child rel/ship is presumed if
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1. parents were married & child born w/in 300 days afterwards
2. parents were married after child's birth & father's named is on birth cert 3. he promised to pay child support or court ordered him 4. he openly held out child as his own. 5. similar rules apply to nonbirthing DP. |
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Do collateral relatives of the half blood inherit the same share they would inherit if they were of the whole lood?
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Yes
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Advancement
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payment or gift to an heir (esp. a child) during ones lifetime as an advance share of one's intestate estate. CA requires a contemporaneous writing. Does not apply if one leaves a will.
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If recipient of an advancement fails to survive Dec, what is effect on the share which the recipient's issue get?
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No effect unless a declaration or acknowledgment provides otherwise.
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hotchpot is
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the blending of items of prop to secure equality of division esp in cases in wh advancements of intestate's prop must be made up in an accounting.
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Effect of debt owed to Dec. on computing the intestate share of the debtor's issue
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not charged against any person except the debtor. If debtor fails to survive Dec it is not taken into account.
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In CA, effect of dower & curtesy
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not recognized in CA
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Effect of person having 2 lines of re/ship to Dec
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Person is entitled to only a single share based on the re/ship that would entitle person to larger share.
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If conflict of laws, wh law controls intestate succession to person prop?
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law of Dec's domicile
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If conflict of laws, wh law controls intestate succession to real prop?
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law of the situs of the prop
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A will operates at time of T's death but is construed in light of the circumstances at time of
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execution
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Conflict of laws--CA
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Ca Probate Code validates wills not made in CA if executed in accordance with CA law, the law of the state where executed or the law of the place where at the time of execution or at the time of death, the testator is domiciled.
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Can a will be admited to probate which does nothing except disinheriet an heir?
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No
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Requirements for a valid will
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18 y/o & of sound mind, testamentary intent, proper formalities.
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Can a conservator make a will for a conservatee?
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Yes if authorized by court.
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CA what type of prop may be disposed of in a will?
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T's SP, 1/2 of CP & 1/2 of QCP
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To whom may a will dispose of prop?
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any person, corp or governmental entity, charty or other org.
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testamentary intent
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T's state of mind involving resolution or determination that a particular instrument act as his or her last will & testament. Required for a will to be valid.
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cond/nal will
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is will that depends on the happening of an uncertain event for the will to take effect; often construed as declaration of otive & not a ? of fact.
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What type of extrinsic evid will courts admit re cond/s
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1. circumstances surrounding execution
2, T's subsequent acts to determine whether intent was cond/nal. |
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Formalities for attested wills
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1. writing
2. signed by T 3. T's signing or acknowledgment of T's sig acknwoledged by 2 wits 4. wits must understand that the instument being signed is T's will. |
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My T direct another person to sign will for him
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Yes if in T's presence. A conservator may sign for conservatee w/ court order.
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Under CA law, does an attested will need to be signed at the end?
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No
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Under CA law, the signing by T must occur in the _______ presence of the wits.
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joint
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But under CA do the wits need to sign in the presence of the T or of ea other?
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No
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Can the wits sign after T's death?
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No
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Requirements of the wits of a will
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1. understand doc is T's will
2. competent 3. disinterested |
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interested wit to a will
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has a direct & private interest b/e he stands to receive benefit
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In most states, is a wit w/ a benefitical interest competent to testify?
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Yes, but any provision in his favor is purged.
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What is CA law re: interested wit to a will?
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Unless there are at least 2 other disinterested subscribing wits, a devise to a subscribing wit creates a presumption the wit procured the devise by duress, menance, fraud or other undue infl. If the devise fails b/e a wit fails to rebut the presumption, then the wit gets intestate share. If shown the wit actually procured the gift through fraud or duress, he would not get ANY % of gift.
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What is CA's newer standard for admitting wills to probate wh do not comply with the witnessing requirements?
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A will (or codicil) of a Dec dying on or after 1/1/2009 that is not executed in compliance w/ the witnessing standards may nevertheless be admitted to probate if the proponent establishes by CLEAR & CONVINCING EVID that at the time T signed the will he intended the will to constitute his will.
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Compare UPC's "harmless error" rule w/ CA's "clear & convincing standard"
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UPC's harmless error rule is broader, excusing harmless error in complying w/ ANY formal requirements for executing OR revoking a will if proponent establishes by clear & convicng evid that D inteded the doc to consitute his will.
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attestation clause in will
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provision at end signed by the wits that recites the formalities required by the jurid/n in wh the will will be probated.
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Is attestation clause required?
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No but it is useful in creating a rebuttable presumption the will was properly executed.
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Does CA law permit holographic will?
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yes, but holographic will must be signed by T & the MATERIAL provision in T's own handwriting.
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Effect of handwritten changes to a holographic will after will completed
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are given effect.
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Effect of interlineations, chages in beneficiaries, amounts, etc made after execution of an attested will
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are not given effect & may work to create a revocation.
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Can handwritten changes to an attested meet the requirements for a valid holographic codicil?
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Yes in some fact patterns.
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Unless changes to an attested will qualify as a holographic codicil,
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alterations on the face of an attested will are ineffective unless the will is reexecuted w/ proper formalities.
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nuncupative will
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oral will made in comtemplation of imminetn death from an injury recently incurred.
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Are nuncupative wills valid in CA?
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No
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Does Ca recognize wills not made in CA?
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Yes, if made in accordance w/ CA law or the law of the state where T was domiciled.
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To execute a CA statutory will
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1. T must complete the appropriate blanks & sign AND
2. Ea witness must observe T's signing & sign his name in the presence of T. |
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Rules to note re: CA stat wills
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1 Can be revoked or amended by codicil in same way as other wills.
2. If T's marriage or domestic partnership is dissolved, any disposition of prop made to former spouse or DP is auto revoked. |
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Uniform International Wills Act provides a valid will must be
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1. in writing
2. T must declare in presence of 2 wits + a person authorized to act in connection w/ international wills that doc is his will & he knows contents 3. T must sign in their presence. |
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Methods of will revocation include
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1. by written instrument
2. by physical act 3. by operation of law |
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Revocation by written instrument includes
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1. express by later will or codicil
2. implied from the terms of a subsequent instrument |
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To revoke by physical act, a will
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1. must be destroyed (burned, torned, canceled, obliterated, etc) WITH
2. simultaneous intent to revoke (i.e. if T forms intent to revoke after accidentally destroying will, the will is not revoked). |
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If another person destroys T's will
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it must be done in T's presence & at T''s direction
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In CA, can a will be revoked in part as well as in whole by a physical act?
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Yes, interlineation of a holograph consitutes both revocation of an altered provision & a new valid dispostion. The prior sig is adopted when the interlineation is made.
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Effect of physical destruction of one of 2 executed copies of will
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will is revoked
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Effect of physical destruction of codicil on will
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does not revoke will (even if T so intends)
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Effect of physical destruction of will on codicils written on sep pieces of paper
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revokes all codicils unless T does not so intend.
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Effect of defacing the will or codicil when they are written on the same piece of paper
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defacing the will portion revokes the codicil, but defacing the codicil part does not revoke the will unless T so intends.
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If T revokes a will be burning, how much is sufficient?
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slightest signeing is sufficient; the burned part need not be material
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If T revokes a will by tearing, how much is sufficient?
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Most courts require tearing to touch some material part of will
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If T revokes a will be obliteration, how much is sufficient?
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obliteration much touch some material part
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Revocation of will by cancellation means
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drawing lines through WORDS OF A WILL. Writing VOID in margins not a cancellation. Defacing the sig revokes the entire will (unless T had no intent).
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If will not found at death, it is presumed
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revoked (i.e. T destroyed it w/ intent to revoke) if it was last known to be in T's possession.
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Can T INCREASE gift to beneficiary by canceling words in a will?
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No
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Can T DECREASE a gift to beneficiary by canceling words in a will?
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Yes
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Effect of lost or destroyed wills w/ no intent to revoke
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can be admitted to probate w/ proof of contents absent any state laws to contrary.
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Revocation of will occurs by operation of law w/ what sits
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a. subsequent marriage pr domestic partnership
b. subsequent birth of child c. dissolution of marriage or domestic partnership |
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Effect of CA's omitted heir statutes
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protect a surviving spouse or DP from being UNINTENTIONALLY OMITTED from willl or revocable trust
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Sit in which heir (omitted spouse or DP) apply
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1. T marries or enters into a domestic partnership after executing all testamentary instruments
2. spouse or DP survives T 3. spouse or DP not provided for in Dec's will or revokable trust. |
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What share does omitted spouse or DP receive under CA stat?
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His or her INTESTATE SHARE of Dec's estate in addition to share of CP & QCP the omitted spouse or DP would get under CA CP law.
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Exceptions when the omitted spouse or DP do not receive his or her intestate share
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1. T's failure to provide was INTENTIONAL & intent on face of will or revokable trust.
2. T provided for spouse or DP outside of will or 3. Spouse or DP made valid waiver |
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How to satisfy the omitted spouse or DP's share
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1st taken from part of estate not disposed of in a will or trust. If not sufficient, share is taken in proportion to value other beneficiaries are to receive under the will.
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Effect of CA's pretermitted children statutes
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Prevent a child from being UNINTENTIONALLY OMITTED from will or revocable trust. See #
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Effect of dissolution of marriage or domestic partnership on will executed beforehard
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Unless will expressly provides otherwise, any disposition of prop made by a will to forer spouse or DP is revoked
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If T & former spouse or DP remarry after a dispostion in a will is revoked b/e of dissolution
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the provision is REVIVED by T's remarriage or est of another domestic partnership
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Doctrine of dependent relative revocation applies when
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1. T revokes his will upon the mistaken belief that another dispostion is effective AND
2. BUT FOR this T would not have revoked his will. |
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In CA to what types of revocations does DRR apply
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physical act & stubsequent instrument
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Effect of DRR
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revocation set aside & original will remains in force
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Under CA law, when can a revoked will be revived?
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If Will-2 is revoked by physical act, extrinsic evid can prove T's intent to revive Will-1. If Will-2 was revoked by a later will (Will-3), Will-1 is not revived except to the extent it appears fromt the terms of Will-3 that T intended Will-1 to take effect. Extrinsic evid cannot be used to prove T's intent to revive Will-1.
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Integration of will means
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pulling all papers actually present at execution together into a whole if T intended them to be a single will.
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Intent of T to integrate several sheets is phown by
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physical act or internal sense connect/n.
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Does a codicil require the same formalities as a will?
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yes
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May codicial be admitted to probate by itself?
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Yes, b/e it is executed will all the formalites of a will
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Effect of a codicil on a will
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republishes it so that will is deemed to be reexecuted at time of the codicial; thus court will interpret will as if it were executed on the date of the codicil.
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Incorporation by reference in wills refers to
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inclusion of separate doc into a will.
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Requirement for doc to be included through incorporation by reference
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1. Doc must be in existence at date of will
2. clearly described in will 3. proven to be doc referred to in will. |
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If properly executed codicil incoporates by reference a prior defective will, can it validate the will?
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yes
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CA exception to requirements for incorp by reference
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List of items of tangible personal prop
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Requirements for CA court to include list of items of personal prop in will even though the requirements for incorp by reference not met
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1. unrevoked will REFERS TO THE WRITING
2. writing is DATED & SIGNED or is in T'S HANDWRITING 3. writing DESCRIBES items w/ REASONABLE CERTAINTY. |
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Facts of Ind Legal Significant in re to wills
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have a SIG SIGNIFICANCE APPART FROM THE IMPACT ON THE WILL whether they occur before or after T's death (e.g. execution or revocation of will of someone else). Ind event does not have to comply w/ formal requirements of a will--e.g. "all of the contents of my safety deposit box."
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Pour over will
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will giving $ or prop to an exisitng trust
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Pour over trust
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An inter vivos trust that receives prop (usu. the residual estate) from a will upon T's death.
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Will substitutes include
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joint tenancy
life insurance deeds inter vivos revocable trusts POD govt bonds various bank arrangements various Ks |
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Effect of death of one of the joint tenants
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surviving joint tenant can take whole prop by operation of law w/o going thru probate
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CP w/ right of survivorship is treated like a joint tenancy in that it
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1. can be severed in same manner as JT before either owner's death
2. passes directly to survivor OUTSIDE OF PROBATE (but is taxed as CP & receives a double stepped up basis) |
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Life insurance is treated as will substitute in that
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the terms of the policy (K) control & policy is not probate asset.
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Can a deed delivered to grantee even though grantor reserves a life estate a valid transfer outside of probate?
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Yes
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What written (though oral void) cond/ns in a deed delivered to grantee should be valid on policy grounds?
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1. grantee must survive grantor
2. deed is not to take effect until grantor's death + 3. deed is revocable by trantor. |
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Is deed delivered to escrow agent w/ oral cond/ns to deliver to grantee on grantor's death valid?
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Yes but if the escrow is revocable & grantor can get deed back, the escrow fails.
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revocable trust
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trust in wh settlor reserves the right to terminate the trust & recover prop & any undistributed income.
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An inter vivos trust is a valid will substitute in that
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during his lifetime, a settlor places assets into a trust to benefits his survivors after his death & this is done outside of probate.
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Are revovcable inter vivos trusts valid in CA
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Yes
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Is a trust in which the settlor is the sole trustee & sole beneficiary during the settlor's lifetime valid in CA?
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Yes as long as the trust provides for the settlor's beneficiaries after his death.
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Bank arrangments outside of probate include
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1. savings account trusts
2. joint or survivor accounts 3. POD designations |
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Savings account or Totten trust
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a revocable trust created by one's deposit of $ in one's own name as a trustee for another.
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In joint or survivor accounts,
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the survivor has an absolute right to all the $. However, extrinsic evid may be admitted to show the account was mainly for convenience & Dec did not intend for survivor to take all the $.
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Payable on Death designations on a bank account has often been held invalid b/e depositor did not say
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he held proceeds "in trust" as Tortten trusts do.
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In CA can multiple party accounts be testamentary?
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No, b/e they violate Stat of Wills formalities.
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Are pension plans wh designate a beneficiary valid will substitutes?
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yes
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Are installment Ks in wh the designation of a contingent beneficiary valid will substitutes?
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sometimes no
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Can an owner of a securiity register it in beneficiary form--e.g. POD or TOD (transfer on death)--so as to avoid probate?
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yes
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Are other Kual instruments wh arrange for ec benefits to pass on a King party's death valid?
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possibly, but there is always a risk some courts will strike them down as violative of the Stat of Wills.
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In CA are will substitutes in which a party to a written instrument designates another person to receive $, benefits or prop upon party's death generally valid?
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Yes, as long as the K is valid or the written instrument effective.
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Ks to make, not to make, or to revoke wills are controlled by
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K law, not the law of wills.
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Effect of breach of K concerning a will
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an ac/n for damages or imposition of a constructive trust on T's beneficiaries may lie, but any valid will must be probated.
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Under CA law, Ks to make wills must be
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in writing (or the basis for an estoppel must exist)
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In CA, a K to make or not revoke a will--or to die intestate--made AFTER 12/31/2000 must be proven by one of the following:
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1. stmt in will or other doc of the material provisions
2. express ref in a will to the K + extrinsic evid proving terms 3. a writing signed by the Dec evidencing the K 4. clear & convincing evid of an agreement b/n the Dec & the claimant OR 5. clear & convincing evid of an agreement b/n the Dec & another person representing claimant. |
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In CA, does the execution of a joint will create a presumption of a K not to revoke?
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No (MAJ rule)
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Joint will
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will of 2 or more person executed w/ the intent to serve as the will of ea. Joint will is admitted to probate on the death of ea joint T.
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How does court probate joint will?
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admited to probate on the death of ea joint T.
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Reciprocal wills
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sep wills that contain similar or reciprocal provisions.
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Revocability of joint & reciprocal wills
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Any joint T can revoke the will for himself but not for others. Such revocation can give rise to breach of K sit.
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A & B enter into a K not to revoke their wills; A revokes, notifies B, B sues--what result?
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No relief granted, because B has not been damaged. He can still change his will.
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A & B enter into a K not to revoke their wills; A revokes w/o telling B then dies. B sues--what result?
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No relief granted, because B has not been damaged. He can still change his will.
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A & B enter into a K not to revoke their wills. A dies in compliance. B revokes his will but does nothing more. The beneficiary of the K sues. What result?
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No relief granted, because B is not in breach of the K until his death.
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A & B enter into a K not to revoke their wills. A dies in compliance. B attempts to dispose of the prop covered by the agreement. The beneficiary of the Kual will sues. What relief?
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Constructive trust imposed on the prop in favor of the benficiary of the Kual will.
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A & B enter into a K not to revoke their wills. A dies in compliance. B then makes a new will & dies. What result?
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New will probated but a constructive trust imosed in favor of the beneficiary of the Kual will.
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To get around the writing requirement for Ks to make or not revoke wills, courts might
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1. see wills themselves as sufficient memoranda
2. view probate of the 1st will as part performance 3. estop a promisor from pleading SoF after he accepts benefits under the 1st Dec's will |
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May spouse or DP waive rights under a will for purposes of estate planning?
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Yes, these rights may be waived before or during the marriage or domestic partnership.
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Factors which makes a spouse's or DP's waiver enforceable
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1. must be in writing & signed
2. waiving spouse or DP must have full disclosure of the other spouse's or DP's financial status. 3. Waiving spouse or DP must have ind legal counsel. 4. If unconscionable, waiver will not be enforced. |
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Defenses to waiver against surviving spouse or DP
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Same defenses as enforcement of K except lack of consider/n no def & minor's waiver before marriage is not effective until after marriage.
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How can a waiver be changed or revoked?
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Unless waiver specifies otherwise, only by a subsequent written agreement signed by ea spouse, DP. prospective spouse or DP.
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Probate law put limits on testation in order to
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provide family protection--to protect the rights of the surviivng spouse or DP & to provide for pretermitted children.
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Spousal right of election
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Many states allow a surviving spouse to renounce the will & take a statutory forced share in event of being unjustifiably disinherited. Gen, CA CP system prevents Dec from disinheriting spouse or DP, but widow's election & election of forced share also provide protection.
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CA CP is
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the earnings & acquisitions of both spouses during marriage or both DPs during the domestic partnership while domiciled in CA
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What % of CP does T have power to dispose of?
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1/2 of CP is already owned by surviving spouse or DP. Only Dec's half is subj to testamentary disposition.
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Widow's election in CA
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Sit in wh a widow consents to attempted disposition of her 1/2 of CP in return for a favorable gift (in or outside of the will). She may: (1) accept her testamentary gift and forego her 1/2 of CP, or (2) assert her 1/2 of CP and thereby void her testamentary gift.
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In CA, when testator does not include any explicit election clause, a surviving spouse may
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assert BOTH her CP rights & her rights under the Dec's will as long as this would not upset the Dec's testamentary plan.
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When the Dec's will attempts to pass the survivor's 1/2 interest in CP,
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the surviving spouse must elect b/n the will & her CP rights.
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Testator may place a survivor's duty to elect on surviving spouse by
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inserting a clause in his will stating that his surviving spouse must either elect to take under the terms of the will or assert her CP ownership rights.
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QCP is
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prop acquired by either spouse or DP that would have been CP had spouse or DP been domiciled in CA at time of acquisition. QCP retains its SP nature when parties become domiciled in CA. QCP label only becomes sig at divoce or death.
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How does Ca protect a spouse or DP when Dec. has QCP?
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Probate code which provides for a forced share of 1/2 of Dec's QCP
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What can surviving spouse or DP do in CA when Dec transfered prop inter vivos in order to defeat spouse's or DP's force share?
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Surviving spouse or DP can set aside transfers of QCP to extent of 1/2 of prop or proceeds if certain requirements are met.
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What requirements must be met for spouse or DP to set aside Dec's transfer?
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1. Dec died domiciled in CA
2. Dec made a transfer or prop w/o receiving valuable consider/n & w/o consent of the surviving spouse or DP & 3. transfer was such that Dec retained enjoyment & rights to prop, could invade principal or the prop is held at the time of Dec death by Dec. & another w/ right of survivorship. |
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Effect of election of forced share by surviving spouse or DP
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1. all benefits under the will are renounced
2. share taken from other beneficiaries by ordinary rules of abatement 3. court may sequester interests to reduce loss to other benficiaries who have suffered by election. |
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Under CA pretermitted child statutes,
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if Dec fails to provide for a child born or adopted after the execution of all testamentary instruments, the child receives her intestate share of the prop.
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Exceptions while child does not receive her intestate share
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1. Dec's failure to provide for child in will or revocable trust was intentional & that intent appears on the face of the doc.
2. Dec provided for the child outside of the will or trust 3. At execution, Dec had one or more children & devised substantially all of the estate to the other parent of the omitted child. |
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Effect of republication of child's pretermission status
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Child born after republication not considered pretermitted so does not get protection of stat.
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How is intention to disinherit child proven?
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must appear on the face of the will. Extrinsic evid not admissible.
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How is lack of intent to disinherit child proven?
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Extrinsic evid is admissible (e.g. to show T did not know of child's existence). Ambiguous language interpreted in favor of the child.
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How does probate court satisfy pretermitted child's intestacy share?
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1st taken from part of will not disposed of--then from all other beneficiary's in proport/n (subj to Dec's intent re: specific gifts, etc)
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Does CA make any restrictions to amt which can be given to charity?
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No though some states do & may invalidate gifts to charity made just before death. CA has no such restrictions.
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Testamentary capacity to make a will refers to
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1. age
2. mental capacity |
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Age requirement to make a will
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18 y/o
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Mental capacity to make a will means T must
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be able to communicate his wishes & understand the nature & effects of the dispostion he is making
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To prove lack of capacity, challenger must
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produce evid of T's deficit at time T executed his will.
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Evid of deficit to prove lack of capacity to make a will must
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show inability to process info, lack of attention, cognitive deficits or psychotic processes which significantly impairs T's ability to understand & appreciate the consequences of his ac/ns w/ respect to the will.
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Can a person adjudicated incompetent still have testamentary capacity?
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Yes
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Can a person with "insane delusions" still have testamentary capacity?
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Yes. A will can be set aside for an insane delusion only if the delusion caused the dispostion
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Who has the burden of proving mental incapacity or insane delusion?
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the challenger of the will
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What is undue influence?
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mental or physical coercion that deprives T of free will, causing him to substitute another person's desire for his own.
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To prove undue influence, challenger must show
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1. T was susceptible to influence
2. other person had an opportunity to influence 3. other person did influence 4. the provisions of the will were unnatural. |
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CL presumption of undue influence arises if
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1. beneficiary was in a confidenctial re/ship w/ T
2. beneficiary participated in execution of the will 3. provisions appear unnatural |
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"confidential re/ship" includes
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attorney-client, Dr.-pt--not H-W
(i.e. gift to spouse or DP does not raise presumption of undue influence) |
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CA statutory presumption of fraud or undue influence occurs
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(1) if drafter gets a gift
(2) if person in a fiduciary re/ship w/ T transcribes the instrument through wh he benefits (3) if a care custodian of a dependent adult is beneficiary in an instrument executted during the provision of health or social services (4) if person is T's 3rd degree relative or employer of any of the above OR (5) person is a SH or emplyee of law firm which drafted instrument |
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CA's presumption of fraud or undue influence does not apply if
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1. transferor is re/d w/in 4th degree of or lives w/ the drafter
2. instruments is approved by court order 3. transferee is a public entity, chariy or VA org 4. instrument was executed outside of CA by nonresident transferor 5. instrument is reviewed by an ind attorney |
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Effect of disqualifying person under statutory presumption of fraud or undue influence
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Person is deemed to have predeceased T w/o spouse, DP or issue
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Fraud generally fits into what 2 classifications
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1. fraud in the execution or factum
2. fraud in the inducement |
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fraud in the execution of will
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misrepresentation as to the nature or contents of an instrument
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fraud in the inducement
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misrepresentation of facts that influence T's motivation
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For fraud to invalidate a gift in a will
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requires T was willfully deceived. The fraud must be inteded to influence the execution or content of a will; T must have in fact been deceived by & acted in reliance on the fraud.
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Remedies for fraud
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tainted portion denied probate
imposition of constructive trust |
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Effect of mistake in execution of will
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1. If wrong doc, not admissible to probate, because T intent lack
2. If wrong provision, not clear if court will admit will w/ provision or correct the mistake |
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Effect of mistake in inducement of will
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no relief unless both the mistake & the dispostion T would have made are apparent on face of will
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Exception for will mistake having to appear on face re pretermitted heir
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If T failed to provide for child solely b/e T believed child dead or is unaware of birth of child, child will receive a share = to intestate share
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Patent ambiguities in will
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appear on face of will
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Latent ambiguities in will
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do not readily appear on face of will but rather in light of extrinsic facts
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How does CA law treat ambiguities?
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CA has rejected distinction b/n patent & latent ambiguities & extrinsic evid admissible to explain ANY ambiguity
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Cardinal rule of construction is that effect must be given to
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the intent of the T
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Kinds of extrinsic evid admissible
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that wh is most relevant. Oral testamony at time of will execution of will likely more relevant than oral stmts significantly afterwards.
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Slayer statute
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person who feloniously & intentionally kills the Dec. is not entitled to any prop under the will nor any benefit through intestate succession or statutory provisions for protection of Dec's family,
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Murder of one JT by another
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Killer's share passes as Dec's prop, & killer has no right of survivorship
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Murder of insured by beneficiary
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benefit passes as though killer predecease Dec.
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If BFP purchases from killer before prop adjudicated,
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BFP may keep prop but killer is liable for proceeds or value.
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Can a killer bring a wrongful death ac/n?
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No. Persons who may bring &/or benefit are determined as though the slayer predeceased Dec.
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Besides slayers, other persons who are prohibited beneficiaries are
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persons who abuse or neglect elder or dependent adults
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An abuser will be deemed to have predecased Dec if
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1. abuse or neglect has been proven by clear & convincing evid
2. person acted in bad faith 3. person acted recklessly, oppressively, fraudulently or maliciously & 4. Dec was substantially unable to manage her financial resources or to resist fraud & undue influence. |
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In CA will may be contested w/in
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120 days after admission to probate
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Who may contest will?
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Only person w/ direct interest who will benefit economically if the will is set aside
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Can a pretermitted child or person given a forced share contest a will?
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No b/e rights are the same regardless
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Can beneficiaries under a prior will contest a subsequent will?
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yes
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Can an executor under a prio will contest a subsequnet will?
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questionable
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Can a judgment creditor of a beneficiary of a prior will contest a subsequent will?
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probably
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Can a spouse or DP of a beneficiary under a prior will contest?
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No
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No contest clause
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testamentary provision conditioning a gift on the beneficiary not challenging the will
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In CA, no contest clause is strictly enforced & applies only to
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1. a direct contest brought w/o probable cause
2. claim that the transferor does not own the prop--thus no right to transfer 3/ creditor's claim |
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Standard no contest clause applies only
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in direct contests (based on forgery, duress, fraud,etc). Court will NOT enforce if there is probable cause to support contest.
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Contest which challenge transferor's ownership of prop
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are not covered by no contest clauses unless the no-contest clause expressly provides. If so, court will enforce even if there is probable cause to support claim.
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Purpose of estate admin
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collect Dec's assets, determine & pay claims & distribute balance to beneficiaries
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Executor
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person who carries out the provisions in T's will & is names in the will or codicil
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Administrator
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person who carries out provision in T's will but is not named. Spouse or DP are given priorty
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Devise
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gift in will--usu. land or real prop. In CA means disposition of real or personal prop by will.
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bequest or legacy refers to
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personal prop
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Types of legacies & divises
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specific, general, demonstrative
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Specific legacy or devise is
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gift of a particular object distinct from all other objects in T's estate
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Gen legacy or devise is
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gift of general ec benefit, payable out of the gen assets of the estate
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Demonstrative legacy
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a gen legacy payable 1st from particular prop & then out of the estate if that prop is insufficient (i.e. $1000 to A payable from sale of GM stock)
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Residuary gift
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is what remains after paying debts, specific, general & demonstrative gifts.
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Ademption
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specific gift wh is not part of T's estate at death
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Ademption & T's intent
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MAJ, T's intent is irrelevant if there has been extinction of the specific prop. MIN & CA: Ademption depends of T's intent at time he disposes of item during his life
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Ademption & securities
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transfer includes additional securities T owns at death if: stock in w/ same corp or result of investment plan or another org acquired thru merger, etc. Transferee NOT entitled to cash distribution acquired before T's death.
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Rights to specific devisees include
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rights to remaining specifically devised prop, balance owed on purhcase price, eminent domain award, etc.
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Ways to escape ademption include
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1. classifying gift as general or demonstrative rather than specific
2. classifying an inter vivos disposition as a change in form not substance 3. construing will as of the time of death 4. creating various other exceptions |
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Satisfaction by inter vivos gift
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occurs when, during his life, T pays beneficiary legacy in will
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A demonstrative, general or specific gift is satisfied if
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T transfers prop to the beneficiary after executing the testamentary instrument w/ intention of satifying the gift.
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In CA satisfaction does not occur unless
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T's intent is expressed in a contemporaneous writing signed by either T or donee.
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In states other than CA, if T is a parent & transfers a gift named in a will to child inter vivos
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the gift by will is presumed to be satisfied.
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Abatement
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reduction of gifts in a will when the estate is not sufficient to pay all debts & legacies.
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Order of abatement (if will says nothing contrary)
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1. intestate
2. residuary 3. gen gifts to persons other than T's relatives 4. gen gifts to T's relatives 5. specific gifts to persons other than T's relative 6. specific gifts to T's relatives |
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3 approaches to stock splits when stock is bequeathed to a beneficiary
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1. Traditional--specific v/ general
2. Modern trend--judicial 3. Modern trend--statutory |
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The traditional approach to gift of stock when stock splits
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depends on whether gift is specifc or gen legacy. If specific, beneficiary receives stocks produced by the split. If gen, benficiary is not entitled to any shares produced by stock split.
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In modern judicial approach to gift of stock when stock splits,
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beneficiary takes regardless of whether it is a specific or gen legacy, but the amt of the increase she receives must be proportionate to amt of shares bequeathed her in the will.
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In modern statutory approach to gift of stock when stock splits (UPA & CA)
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focus is on whether T owned shares of stock bequeathed in the will at the time the will was executed. If so, the beneficiary receives any increase or change in the stock. If T did not own the bequeathed shares at the time will executed, beneficiary receives only the # of shares specified in the will.
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Whether beneficiary takes interests & profits on gifts after T's death depends on
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the classification of the gift
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W/ specific gifts, the right to interest, dividends & rent after T's death
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do go to the beneficiary
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W/ general legacies, the beneficiary's right to interest after T' death
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is calculated by a statutory formula
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Residual gifts do no bear interest, but
all income after T's death not payable to specific or gen legatees becomes |
part of the residue
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Exoneration--CL
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A devisee of land or legatee who receives specifically bequeathed prop takes the prop free & clear of any lien. Other beneficiaries (usually residuary) pay the obligation.
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CA--Exoneration?
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No right to exoneration. A specific devise of realty or personalty passes subj to any lien existing on date of death.
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Lapse occurs
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when the beneficiary of gift in a will dies before T, gift void or fails (CL).
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Consequences of lapsed gifts
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If alternative person name in will, takes effect. If no alternative, specific, gen & demonstrative lapsed gifts fall into residue. A lapse residuary gift goes to T's heirs
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Anti-lapse stat.
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Now most states--gives a bequest to the heirs of the beneficiary if the beneficiary dies before T dies--prevent lapse by permitting gift in will to pass to predeceasing beneficiary's living descendants.
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Anti-lapse stat does not apply if
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will expressed a contrary intention.
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In CA, anti-lapse stat applies only if predeceased devisee was
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kindred of T or kindred of a surviving, deceased or former spouse or DP or T. Issue of deceased devisee take in his place.
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Does anti-lapse stat apply to member of a class gift?
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yes, class gift's issue will take the deceased member's share
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Does anti-lapse stat apply if beneficiary already dead when will executed?
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No
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Does anti-lapse stat apply to lapsed residuary bequest?
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Yes in CA
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Does anti-lapse stat apply to future interest devised to 2 or more persons?
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Yes in CA
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