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114 Cards in this Set
- Front
- Back
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Intestate Succession - CP and QCP
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Passes to surviving spouse/ Domestic partner (SS/DP)
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Separate Propertry
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Share of surviving partner/DP
-1/2 if 1 child, heir - 1/3 if more than 1 child - all if no issue, parent, sibling, niece, nephew |
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Order for property not passing to SS/DP
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1. To issue per capita w/representation for pre-deceased
2. To parents 3. To grandparents/their issue 4. To issue of predeceased spouse/DP 5. Next of kin 6. Parents of predeceased spouse/DP or their issue 7. Escheats to state 8. Portions of decedent's estate attributable to predeceased spouse/DP |
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portions of decedent's estate attributable to predeceased spouse/DP
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Real property from less than 15 years prior and personal property from less than 5 years prior and worth $10K or more psses to heirs of previously deceased spouse /DP IF decedent dies w/o spouse/DP/isse
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Subsidiary rules for simultaneous death
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Need clear & convincing evidence of 120 hours survival for intestate
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Subsidiary Rules - Disclaimers
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- Treat disclaimant as predeceased
- May be made on behalf of infant, incompetent, or decedent. - No disclaimer allowed in any benefits accepted by heir/beneficiary. - Spendthrift clause does not prevent disclaimer. - Disclaimer valid against creditors |
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Procedure for Treatment of Disclaimers
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- Written
- Signed by disclaimant - Identify decedent - Describe interest being disclaimed - State disclaimer and its extent - Filed w/in r/able time after heir/beneficiary learns of gift. |
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Subsidiary Rules - Posthumous relatives
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- If conceived before/born after decedent dies, inherit as if born before.
- Reqs for kid conceived after decedent's death to inherit as though born in lifetime IF: 1) Decedent authorized in signed and dated writing use of sperm for posthumous conception, 2) Person designated to use gives written notice w/in 4 mos of death to personal rep that sperm availabe, and 3) Child conceived w/in 2 years of death |
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Adopted Children
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- Inherit from adoptive parents and relatives and vice versa.
- Inherit from natural parents ONLY if: 1) Natural parent and adoptive parent lived together at any time OR natural parent was married to/DP of/cohabitating w/other natural parent at conception but died before birth AND 2) Adoption by spouse/DP or either natural parent OR after death of either natural parent. |
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Stepchildren and foster children
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Adoption by estoppel if child held out as parent's natural child.
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Non-Marital Children
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- Auto inherit from/thru mom
- Must est paternity for dad. Presumption of paternity if the parent's are married at conception, or if the father named on birth certificate and tried to marry mom, or promised/did pay child support |
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Half-bloods
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Take same as whole
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Advancements
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- Applies only w/intestacy
- Must be in writing that decedent is making an advancement - ADV doesn't affect issue's share if recipient predeceases decedent - Hotchpotch to calculate recipient's intestate share |
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Debt owed to decedent only charged against?
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Debtor's intestate share; does not affect issue
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Relations through two lines of relationship
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- Entitled to larger of the shares
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Conflict of laws
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- Decedent's domicile for personal property
- Situs for real property |
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Nature of wills
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- will operates at death, but construed in light of circumstances at execution.
- Admission to probate if disposes of property, appoints executor, or revokes different instruments - Must be 18+ and of sound mind to make will |
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Testamentary Intent Required
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- Present intent to make this document testator's will
- If testator signs wrong will, signed instrument denied probate - With conditional wills, they usually construe the language as declaration of motive, not a condition. |
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Formalities required for Formal Will
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- Written
- Indorsed with witnesses present - Witnesses must understand it's a will - Witnesses need to sign (not in each others' presence) - Witnesses must be competent |
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Interested Witnesses
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- In CA, unless there are at least 2 other disinterested witnesses, when a will makes a devise to interested witness, there's a presumption of duress, menace, fraud, or undue influence. If the devise fails bc witness can't rebut, witness gets amount of devise as though will didn't exist.
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Reqs for Holographic Will
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Signature and material provisions in T's handwriting
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CA statutory will
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- To execute, T must complete appropriate blanks & sign and each witness must see T sign and sign in the presence of T.
- Auto revocation of spouse/DP's share in will if disso after excuting statutory will |
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Revocation of wills
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Any T with capacity may revoke, even if K'd not to.
May revoke through writing, physical act, or by operation of law. |
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Revocation by writing
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- Express revocation in later will or codocil
- Implied revocation if terms of later doc are inconsistent |
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Revocation by physical act w/simultaneous intent to revoke
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- If by 3P, must be in T's presence, at T's direction.
- Can be total or partial revocation - Interlineations of holographic wills constitutes both revocation of an altered provision and a valid new disposition. |
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Effect of revocation on other testamentary instruments
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- Physical destruction of one of two executed duplicates revokes will
- Physical destruction of codicil does not revoke will, even if T intends. - Physical destruction of will revokes codicils unless T does not intend - When will & codicil on same piece of paper, defacing will portion revokes codicil, but not vise versa unless T intends. |
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Sufficiency of the act for revocation by physical act
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- Burning, even slight
- Tearing that touches some material part of will - Obliteration must affect material part of the will - Cancellation - Draw lines through words of will - "Void" in margin is NOT enough |
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Revocation by operation of law
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- Subsequent marriage or DP unintentionally omitted from will may affect
- Birth of children does not revoke - Dissolution or annulment revokes any gifts or powers to spouse/DP |
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Spouse or DP's omitted share:
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Gets intestate share in addition to CP/QCP; no more than 1/2 SP.
Exceptions? Of course. When T intended to leave out, when spouse/DP agreed not to inherit, and when otherwise provided for outside of will and it's proved to be substitute. |
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How do you satisfy the omitted spouse/DP's share?
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From the residue from named bennies.
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Revocation upon annulment/disso
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- Also revokes non-probate transfers, JTs, CP (except life insurance)
- Property to spouse/DP in will passes as if spouse/DP predeceased. - If T remarries person disso'd/anulled, revives provision in will - Legal separation does not revoke. |
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Revival of revoked Wills
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If 2d will revoked by phys act, extrinsic evidence to prove intent to revive 1st.
If 2nd revoked by 3d, terms of 3d must say T intends to revive 1st and no extrinsic ev to prove. |
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Integration
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All papers present at execution integrated if T intends.
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Codicil modifies earlier will
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- Must follow all formalities
- Admissible to probate by itself, admitted as will if will unable to be admitted. - Republication of will by executing codicil |
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Incorporation by reference
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- OK if doc exists at date of will, clearly described in will and proven to be document described in will
- Properly executed codicil incorp's by reference a prior defective will, thereby validating it. |
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- May dispose of tangible property in writing that doesn't comply w/incorp by reference reqs if:
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1. Valid will refers to in writing
2. Writing is dated and in T's handwriting or indorsed and 3. Writing describes items and recipients w/r/able certainty. ** Does NOT work for $$ and biz property ** |
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Undetermined bennies or property?
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Can have undetermined bennies or property as long as act satisfying conditions is for reason other than devising property.
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Can you have pour over of probate assets into intervivos trust?
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Will can devise assets to trust if trust identified in will and written and executed before or with will.
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Acts of independent significance
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Blanks in a will can be filled in by referring to acts or docs executed during the testator's lifetime, primarily for nontestamentary motives. Either bennies or property can thus be id'd.
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Essential req: Independent significance
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Whether act or document has sufficient significance apart from its impact on the will.
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Acts of independent significance by 3P
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Testator can provide that his prop pass under the last will of another person, alive at time of execution. If the other person survives, he has testamentary power of appt. If not, then his will has independent significance.
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Will Substitutions
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- Joint tenancies
- Life insurance - Deeds - Inter vivos revocable trusts - Govt bonds w/POD designations are valid - Bank arrangements - Contracts |
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Joint Tenancies
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No probate req'd
CP w/right of survivorship treated same as JT |
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Life insurance
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- No probate
- Terms of policy control |
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Deeds
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Deed delivered to grantee during grantor's life
Oral conditions are void Deed delivered to escrow agent w/oral conditions to give to grantee on grantor's death = effective unless: 1. If escrow revocable and grantor can get deed back, escrow fails 2. If escrow agent directed to return deed to grantor if grantee dies first, escrow fails bc no interest passed. |
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written conditions for deed
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- grantee must survive grantor
- Deed is not to take effect until grantor's death - Deed is revocable by grantor |
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Inter vivos revocable trusts
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In CA, trust valid even if settlor is sole trustee and sole bennie during his life, as long as trust provides for successor bennies after settlor's death.
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Bank arrangements
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- Saving accounts, AKA Totten trusts are valid even if trustee can w/draw all proceeds for own use.
Joint and survivor accounts - Survivor has absolute right to all $$. Extrinsic evidence allowed to show not intend right of survivorship. POD designations on bank account invalid |
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Will subs and CA law
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- Party to a written instrument that is effective as a gift, trust, conveyance or K may specify that on the party's death, a designated person will receive $, benefits, or property that is the subject of instrument or is controlled by party.
Designation effective under CA law and not considered testamentary. |
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Contracts to Make Wills
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- K law governs.
- Effect of br/= COA against T's estate for damages or constructive trust on T's benefits. Will Still Probated |
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Formalities of K to make wills
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Proof of K established by:
1. Provisions of will/other doc state material K provisions. 2. Express reference in will/other doc to K and extrinsic evidence proves terms 3. Writing signed by decedent evidencing K 4. Clear and convincing evidence of agreement/promise Execution of joint will/mutual will not presumption of K not to revoke. |
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Joint and Reciprocal Wills
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Joint = 1 will for 2 or more people.
Reciprocal = Separate wills w/similar or reciprocal provisions. Party to joint can revoke for himself but may be br/K. |
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Ways around SOF for oral Ks
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- Wills constitute suficient memoranda
- Admission to probate on death of first K'ing party constitutes part performance OR - Promisor estopped to plead SOF after accepting benefits under first decedent's will |
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Remedies of K bennies for br/K when 1st party dies in compliance
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- Constructive trust
- Constructive trust and Set aside transfers for wrongful inter vivos transfer - Revocation w/o inter vivos transfer? Bennies can't bring action. NO COA for br/K when first party dies in breach bc no damages. |
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SS or DP waiver of rights
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- - Must be written and signed by waiving spouse/DP after full disclosure.
-- Waiving spouse must have independent atty -- No Enforcement if unconscionable. |
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Defenses to enforcement of waiver by SS/DP
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- Same as against enforcement of K, except:
1. Lack of consideration is not a defense 2. Minor intending to marry may make a waiver, but only effective upon marriage. |
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Agreement altering, amending, or revoking waiver by SS/DP
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Unless K different, only by written agreement signed by both parties.
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Election to take against will by SS/DP
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Waiver does not limit right of 1 spouse/DP to revoke waiver of her 1/2 of CP/QCP under will of the other
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Rights of SS/DP
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CP
- Decedent's testamentary power limited to his 1/2. - Widow's election = T can require SS/DP to choose between CP/QCP or will |
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Forced share in QCP
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Spouse has no right to QCP of other during other's life, and cannot devise it.
- SS can set aside transfer during M of QCP to extent of 1/2 property or 1/2 its proceeds or value at time of transfer if: - Decedent died domiciled in CA - Decedent made transfer of prop to 3P w/o receiving substantial consideration and w/o consent of other SS/DP and - Property is held at the time of the decedent's death by decedent and another w/ right of survivorship |
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Effect of Election of Forced Share by SS/DP
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- Renounce all benefits under the will
- Abatement of gifts (residuary first, then general, then special gifts OR pro rata - all bennies must chip in.) - Sequestration (interests renounced sequestered to reduce the loss of those who suffered by the election) |
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Pretermitted kids
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- Get intestate share
- Not pretermitted and DON'T get share if: 1. Failure to include intentional and apparent on face of will/trust 2. Decedent provided for child and intent shown that it be in lieu of devise 3. When will/trust executed, decedent had kids and devised almost all to other parent of omitted child. No extrinsic evidence to prove intent, but OK to prove no intent. Take from residue first, then from bennies. |
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Testamentary capacity
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- Must be 18
- Must have mental capacity |
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Proving lack of capacity
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- Must be able to communicate wishes and understand nature of the disposition and its effects.
- Alertness and attention - Ability to process info - Ability to modulate mood - Contractual capacity helps. - Adjudicated incompetency is not per se w/o capacity - Insane delusions |
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Insane delusions
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Invalidates will provisions based on the insane delusion.
will set aside ONLY if delusion caused disposition |
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Undue Influence
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- Mental or physical coercion deprives T of free will
1. T susceptible to influence 2. Other person had opp to influence 3. Other person disposed to influence 4. Provisions of the will unnatural |
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Rebuttable presumption of UI if:
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1. Benny in confidential relationship w/T
2. Benny participated in execution 3. Provisions = unnatural |
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CA limits on transfer to drafter
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- Will provisions w/bequest to drafter, relative/cohabitant, ee of drafter, partner/s'holder of pship/corp where drafter has interst/is employed, person w/ fid relationship w/T, person related to/lives w/employed by benny, care custodian = INVALID
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Exceptions when provision to drafter
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If T related to, lives w/, or is DP of drafter or will reviewed by independent counsel.
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Rebuttable presumtion of invalidity
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Rebut w/clear & convincing evidence that transfer is valid.
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Effect of limitation
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Person disqualified considered pre-deceased to extent over her intestate share.
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Fraud
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- Gifts resulting from fraud invalid.
1. Willful deceit as to instrument or extrinsic acts (must have been deceived and relied on deceit) 2. Fraud must be perptrated by benny 3. Fraud generally fits into two clasifications - execution or inducement. |
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Remedy for fraud
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Tainted portions denied probate or constructive trust
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Mistake in execution or inducement
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When T executes wrong doc, executed doc not admissible to probate (intent lacking)
1. Mistake in execution 2. Mistake in inducement |
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Mistake in inducement
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- No relief unless mistake on face of will
- Both mistake and devise T would have made but for the mistake appear on face of will. - Exception for pretermitted heir - gets intestate share if left out bc T thought dead, unaware of birth. - Remainder of will valid unless // T's intent where only part invalid due to mistake. |
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Ambiguities
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1. Extrinsic evidence admissible to explain any ambiguity.
2. A mistake in description of property or of a person doesn't render it inoperative, if it can be excised |
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3 views re: slayers
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1. Gets legal title
2. May not inheret bc can't profit from wrong. 3. Slayer inherits, but Constructive Trust |
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Statutory Restrictions to Slayers
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Slayer gets nothing if feloniously and intentionally kills
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Disposition of disqualified bennies
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Slayer's property goes to other bennies
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Murder of one JT by other JT
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Causes severance. Decedent's share passes as decedent's property and killer has no right of survivorship.
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Persons purchasing property from killer before rights to decedent's property adjudicated
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Keep prop if w/o notice and pay value.
Killer liable to estate for amount of proceeds or value of prop. |
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Liability of insurance co, financial institution, other obligor
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If pay slayer after receiving notice of claim under slayer statute, they have liability
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Elder abuse
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Cannot inherit from victim. Treated as predeceasing if:
- Abuse or neglect proven by clear/convincing evidence - person acted in bad faith - person acted recklessly, oppressively, fraudulently, or maliciously. - Decedent was substantially unable to manage her financial resources or to resist fraud or undue influence |
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Probate Process
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- Will est as valid or heirs determined
- Probate in county of domicile - BFP from heir or bennies protected if letters of administration or letters testamentary are issued. |
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Will Contests
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- W/in 120 days of admitting to probate
- Only directly interested persons who will benefit economically if will set aside may contest the will. --- Pretermitted child, person given forced share cannot contest. --- Bennies under prior wills cannot contest subsequent --- Spouse/DP of benny under prior will or prospective heir of the decedent cannot contest |
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No Contest Clauses
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- Contesting party loses gifts in will
- Generally enforceable - Actions do not generally constitute a contest: filing creditor's claim, axn to determine character, title, or ownership of property, or challenge to validity of instrument, K, agreement, benny designation or other document. |
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Estate admin
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- Collect assets, pay debts, and distribute rest
- Executor for will - Administrator for intestacy |
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Executor of will
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- Must be over 18
- Capable of executing duties - Subject to removal for waste/neglect of estate, etc. - Must be US resident - Cannot be surviving pner of decedent if interested person objects to the appointment unless named in will. |
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Classification of Legacies and Devises:
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1. L = Personal property
2. D = Real property |
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Types of legacies and devises
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Specific = of particular object in estate
General = general benefit payable from general assets Demonstrative legacy = payable first from particular prop and then estate. |
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Residuary gift
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Remainder after paying debts and devises
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Ademption
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What happens to property in a will when T no longer owns property. Applies only to specific gifts.
Ex: T bequeaths A his car. At time of death, T has no car. The gift is adeemed. |
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CA ademption rule
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Depends on T's intent when disposes of item. This is diff than majority of states, where they don't care if the gift is gone.
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Securities
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Get addt'l securities acquired after making will if secs are
1. Of the same org acquired by reason of action initiated by org or as result of plan of reinvestment, or 2. Of another org acquired as result of merger, consolidation, reorganization, or other distro - Don't get cash distros acquired before T's death. |
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Rights of Specific Devisees
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Right to remaining specifically devised property and balance owed, just compensation award, unpaid insurance proceeds, and property from foreclosure.
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Escape devises to avoid ademption
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- Classifying gift as general or demonstrative rather than as specific
- Classifying inter vivos disposition as change in form, not in substance. - Construing will as of the time of death - Creating exceptions - no ademption where T and property are simultaneously destroyed and guarding of incompetent person cannot adeem by transferring away the item. |
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Satisfaction of Legacy by Inter Vivos Gift w/ Intent of satifying gift in will
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- CA requires contemporaneous signed writing
- For purpose of applying anti-lapse statute or for calculating amount of failed gift that will pass to any alternative taker, satisfaction applies to lifetime gift even if transferee predeceases transferor. |
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Abatement
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- Gifts by will are reduced or abated when the estate is not sufficient to pay all debts and legacies. If there's an order listed, T's wishes followed. If not, then in the following order:
1. Intestate property 2. Residuary gifts 3. General gifts to persons other than T's relatives 4. General gifts to T's relatives 5. Specific gifts to person's other than T's relatives 6. Specific gifts to T's relatives. |
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Increase: Approaches to Stock Splits
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Traditional, Modern Judicial Approach, or Modern Statutory Approach
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Traditional approach
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If gift is to a specific legacy, beneficiary receives shares produced by the split.
If the gift is a general legacy, benny not entitled. |
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Modern Judicial Approach
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Benny takes increase regardless.
Amount of increase received proportionate to amount of shares bequeathed. |
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Modern Statutory Approach
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UPC/CAL
If T owned shares bequeathed when will executed, benny takes increse or change resulting from action initiated by corp. If T did not own at execution, then benny receives only # shares specified in will. |
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Stock dividends
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Benny takes add'l shares produced if T owned shares of stock matching the shares being bequeathed at execution.
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Increase After T dies - Specific gifts
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Carries w/it right to all its income earned after T's death. Interest, rent, dividends.
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Increase after T dies to General Gifts
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Interest at statutory rate starting 1 year after T dies.
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Increase after T dies to Residuary Gifts
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NO INTEREST
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Exoneration at CL
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Devisee of land or legatee of specific personal prop takes free and clear of any lien or encumbrance.
other bennies must pay obligation. |
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Exoneration in CA
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Specific devisee of realty/personal prop takes subject to any lien existing at T'd death regardless of directive in instrument to pay debts.
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Lapse
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Benny dies after T executes will but before T dies, then gift to B lapses.
If benny dead when will executed, gift void |
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Consequences of lapsed gifts
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- Alternative benny takes, if provided
- Falls into residuary if no alternative benny - Failed residuary gift goes to intestate heirs |
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Gifts to Classes
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Only members of class who survive T divide the gift.
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Anti-Lapse statutes
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- Provide sub-benny for devisee who dies before T.
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CA anti-lapse
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1. Applies only if devisee was kin of T or surviving, deceased, or former spouse/DP of T
2. Issue of deceased devisee take 3. Does not apply if will expresses contrary intent or sub benny |
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Lapsed residuary bequest
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- If residue devised to 2 or more and residuary legatee dies before T, his share to residuary legatees who survive.
- But, anti lapse statute will sub the deceased devisee's issue. - If a future interest is devised to 2+ and share fails, passes to other devisees unless anti-lapse stat applies. |
