California Wills

Front 1

Intestate Succession Order

Back 1

1. Surviving Spouse
2. Issue of Decedent
3. Recapture Doctrine
4. Parents
5. Issue of Parents

Front 2

Survival Requirements

Back 2

1. Actual survival
2. Legal survival

Intestate: 120 hours
Other: any survival is sufficient
Joint Tenancies/Simultaneous Death: Divide into equal shares

Front 3

Posthumously Born Children

Back 3

1. Decedent specified in signed and dated writing giving consent
2. Surviving parent serves notice of intention within 4 months of death
3. Child in utero within 2 years of death

Front 4

Adoption

Back 4

Adoptive relationship severs ties between natural parent and child
EXCEPTIONS (apply)

Front 5

Adoption by Estoppel

Back 5

1. Agreement between competent persons to adopt
2. Child moves into adoptive home
3. AP takes child in, treats as own
4. AP dies intestate

Front 6

Advancements

Back 6

Allows deduction from intestate share for money advanced out of the estate

Gifts presumed not to be advancements
EXCEPT:
- Donor creates writing so stating contemporaneous with gift
- Donee acknowledges gift as advancement in writing

Front 7

Attested Will Requirements

Back 7

1. Writing
2. Signed
3. Acknowledged by 2 witnesses (delayed is OK)
(a) Present at same time
(b) Witnessed signing or acknowledgement
(c) Understand instrument as T's will

Front 8

Signature Requirements

Back 8

Signed by:
1. Testator
2. Third person in presence of testator
3. Conservator

Front 9

Conditional Wills

Back 9

A will whose validity is conditional by its own terms (valid in CA)

Front 10

Interested Witness Doctrine

Back 10

Presumption that gifts to a witness who is a beneficiary are invalid
+ Not Rebutted: Limited to intestate share
- Rebutted: Can receive full amount in will

Front 11

Holographic Wills

Back 11

1. Material provisions handwritten
2. Signed by T
3. Testamentary Intent: that wanted it to be the last W&T
+ Date: helpful to establish priority

Front 12

Admission to Probate

Back 12

Will can be admitted into probate in CA if it complies with formalities of:
1. California
2. State of execution
3. State of domicile

Front 13

Forms of Revocation

Back 13

1. Act
2. Subsequent writing
3. Operation of law
4. Presumption doctrines

Front 14

Revocation [Requirements]

Back 14

1. Doing the act/writing
2. Intent to revoke
3. Done by testator or at direction and in his presence

Front 15

Presumption of Revocation

Back 15

Inability to find will creates presumption T destroyed will with intent to revoke (rebuttable)

Requirements:
1. Will was last in T's possession
2. T was competent until death
3. Neither the original nor duplicate can be found

Front 16

Dependent Relative Revocation

Back 16

1. Valid revocation
2. Mistaken belief of substantially identical will effectuating intent
3. Revocation of first deemed conditional, dependent and relative to second -- if second fails, first deemed never revoked

Front 17

Revival

Back 17

Brings back a will previously revoked

Requires: Intent to revive

Front 18

Integration

Back 18

1. Intent: T intended for papers to be part of the will

2. Presence: Paper actually or physically present at time of execution

Front 19

Republication by Codicil

Back 19

A validly executed will treated as reexecuted as of the date of the codicil
- EXCEPT: where contrary to intent
+ COUNTER: No power not to revoke where clear on face of document

Front 20

Incorporation by Reference

Back 20

Makes any other referenced paper part of the scheme

Requirements:
1. Valid will expresses intent to incorporate another document
2. Document described with reasonable certainty
3. Document in existence at time of execution

Corrects:
- Invalid prior will
- Typed portions become incorporated into holograph

Front 21

Dependent Relative Revocation

Back 21

1. Valid revocation
2. Mistaken belief of substantially identical will effectuating intent
3. Revocation of first deemed conditional, dependent and relative to second -- if second fails, first deemed never revoked

Front 22

Revival

Back 22

Brings back a will previously revoked

Requires: Intent to revive

Front 23

Integration

Back 23

1. Intent: T intended for papers to be part of the will

2. Presence: Paper actually or physically present at time of execution

Front 24

Republication by Codicil

Back 24

A validly executed will treated as reexecuted as of the date of the codicil
- EXCEPT: where contrary to intent
+ COUNTER: No power not to revoke where clear on face of document

Front 25

Incorporation by Reference

Back 25

Makes any other referenced paper part of the scheme

Requirements:
1. Valid will expresses intent to incorporate another document
2. Document described with reasonable certainty
3. Document in existence at time of execution

Corrects:
- Invalid prior will
- Typed portions become incorporated into holograph

Front 26

Acts of Independent Significance

Back 26

Requirements:
1. Reference to an act (before or after T's death)
2. Act has significance apart from effect on the will
LIMIT: Putting things in a place solely to change disposition not allowed

Front 27

Tangible Personal Property List

Back 27

Requirements:
1. Will refers to a writing
2. Writing dated and signed or in T's handwriting
- EXCEPT: can be dispensed with if intent is clear
3. Describes items + recipients with reasonable certainty

LIMITS:
- Tangible personal property only
- $25k aggregate value
- $5k per item

Front 28

Pourover Will

Back 28

Allows a person to set up a revocable trust with no res and fund it by the residuary of a later executed will

UTATA Requirements
1. Validly executed will granting residue to trust
2. Preexisting or concurrently created trust

Front 29

Gifts Causa Mortis

Back 29

Gifts made in contemplation of imminent death

Requirements
1. Personal property
2. Delivery to donee (actual, constructive, symbolic)

Front 30

Contracts Regarding Wills

Back 30

Requirements:
1. Writing (or oral if C+C)
2. Signed by decedent
3. Evidencing existence of contract

Front 31

Contracts Not to Revoke (Examples)

Back 31

1. Will or other instrument states material provisions
2. Express provisions in testamentary instrument to contract
3. Writing signed by decedent evidencing contract
4. C+C of agreement enforceable in equity (estoppel)

Front 32

Spousal Protection

Back 32

1. Community Property: T can dispose of only 1/2
2. Quasi-Community Property: T can dispose of only 1/2
- EXCEPT: While alive, T can dispose of all QCP
+ COUNTER: Illusory transfers can be restored by 1/2 thru Widow's Election
3. Widow's Election: Surviving spouse may take under will or elect intestate benefits

Front 33

Waiver

Back 33

A voluntary relinquishment of a known right

Requirements
1. Waiver in writing, singed by waiving spouse
2. Full disclosure of decedent's finances
3. Independent counsel

Front 34

Shawn Kemp Doctrine (Accidentally Omitted Living Child)

Back 34

Gives child that which would be received in intestacy

Requirements
1. At time of execution of T's instruments
2. T failed to provide for living child
3. Because T unaware of child or thought dead

Rebutting: Must provide for child by name

Front 35

Pretermitted Child Doctrine

Back 35

Gives child a statutory share equal to intestate share

Requirements
1. T makes a will
2. Later has a child
3. Will does not give anything to child

Rebutting Presumption of Accident:
* Intent to disinherit in will
* Gift provided outside will
* T had 1 or more kids, substantially all given to surviving spouse

Front 36

Pretermitted Spouse Doctrine

Back 36

Gives spouse a statutory share equal to intestate share

Requirements
1. T makes a will
2. Later gets married
3. Will does not account for the marriage

Rebutting Presumption of Accident:
* Intent to omit spouse in will
* Gift provided outside will
* Prenuptial agreement/waiver

Front 37

General Testamentary Capacity

Back 37

Testator Must Be:
1. 18 years old
2. Have mental capacity: capable of knowing and understanding
(a) Nature + extent of property
(b) Natural objects of T's bounty
(c) Nature of testamentary act
(d) Disposition in the property

Front 38

Defects in Capacity

Back 38

1. Insane Delusions
2. Undue Influence
3. Fraud
4. Duress
5. Tortious interference with expectancy

Front 39

Insane Delusions

Back 39

1. False belief
2. Product of sick mind
3. No evidence to support belief
4. Causation: Delusion affected T's will

Front 40

Undue Influence (approaches)

Back 40

1. Classic undue influence
2. Presumption of undue influence
3. Interested drafter statute

Front 41

Classic Undue Influence

Back 41

Requirements
1. Susceptibility
2. Opportunity
3. Active participation
4. Unnatural result (causation)

Front 42

Presumption of Undue Influence

Back 42

Requirements
1. Confidential relationship
2. Undue influencer active in the procurement of the will
3. Party unduly benefits (causation)

Front 43

Interested Drafter Statute

Back 43

Makes a gift to certain beneficiaries invalid (irrebutable!)

Scope:
* Drafter (+ spouse, family, shareholders)
* Fiduciaries causing it to be written (+ spouse, family)
* Adult care providers (+ spouse, family)

EXCEPTIONS
- Related by blood or marriage or cohabitating partner
- Certificate of review conducted
- C+C determination of undue influence if not drafter

Front 44

Fraud

Back 44

Requirements
1. Intentional misrepresentation of a material fact
2. Scienter
3. Purpose to affect testamentary scheme
4. Causation

Fraud in Inducement: only affected part invalid
Fraud in Execution: will is invalid
Preventing Revocation: Heir holds as constructive trustee

Front 45

Duress

Back 45

Requirements
1. Wrongdoer threatens to perform a wrongful act
2. Causes T to make different disposition

Effect: invalidates portions wrongly procured

Front 46

Ambiguity

Back 46

A provision in a document is capable of more than one meaning

Effect: Court will permit extrinsic evidence

Front 47

Extrinsic Evidence

Back 47

Permissible to
1. Establish testamentary intent
- Evidence: circumstances surrounding execution

2. Construe ambiguity
- Evidence: written and oral evidence of intent

Front 48

Curative Doctrines

Back 48

1. Interested Witness Doctrine
2. Substantial Compliance
3. Misdescription Doctrine
4. Dispensing Power
5. Scrivener's Error

Front 49

Homicide Doctrine

Back 49

Intentional + felonious killers are not allowed to take any interests

Front 50

Ademption

Back 50

When a testator disposes of a specific gift, it is extinguished

Avoiding Ademption
1. Vagueness: classify as general
2. Change in form, not substance
3. Construe meaning as of time of death
4. Outstanding balance to beneficiary
5. Conservator sold it

Front 51

Satisfaction

Back 51

Testator transfers designated amount to devisee mentioned in the will prior to death

Requires: Writing providing for deduction

Front 52

Abatement for Omitted Children

Back 52

1. Property not passing by will or trust
2. Testamentary beneficiaries, pro rata in proportion to value of gift
- EXCEPT: Specific gift if defeats obvious intention

Front 53

Abatement

Back 53

When estate does not have enough funds to pay debts as well as gifts, requires sale of property

Order:
1. Residue
2. General gifts (non-relatives first)
3. Specific gifts (non-relatives first)

Front 54

Lapse

Back 54

Occurs when beneficiary dies before testator

Specific & General Devises: falls into residue
Class Gifts: Surviving members divide gift
Void Gifts: Falls into residue
Residuary Clauses: Goes to others in residue or intestacy

Front 55

Anti-Lapse

Back 55

Saves a failed gift from lapsing by giving it to B's issue

Requirements
1. Beneficiary predeceases T
2. Kindred relationship between B and T
3. B survived by issue
4. No express contrary intent

Front 56

Class Gifts

Back 56

A survivorship gift to a group to be determined in the future
+ Anti-lapse applies

Front 57

Exoneration of Liens

Back 57

Doesn't exist in CA

Beneficiary gets to take the equity from any property gift in CA subject to encumbrance