Term
| What is the majority approach to determining capacity to make a will? |
|
Definition
| Once will proponent shows prima facie evidence of due execution, then the burden of persuasion is on the challenger to prove testator was mentally incompetent. Must persuade by a preponderance of the evidence. |
|
|
Term
| What is the minority approach to determining capacity to make a will? |
|
Definition
| Proponent of the will has the burden of persuasion once the presumption of sanity has been overcome by the challenger. Must persuade by a preponderance of the evidence. |
|
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Term
| What is the restatement standard for whether someone has capacity? |
|
Definition
The testator must be 18 or older when making a will and be capable of knowing and understanding:
1. The nature and extent of their property.
2. The natural objects of his or her bounty.
3. The disposition they are making
4. They must be able to relate the elements together and form an orderly desire regarding the disposition of the property.
The test is on capability, not actual knowledge. |
|
|
Term
| What is the definition of an insane delusion? |
|
Definition
| A belief adhered to against all evidence to the contrary. |
|
|
Term
| What is the two-part insane delusion test? |
|
Definition
1.Whether the testator suffered insane delusions.
2. Whether the insane delusions caused the changes/provisions in the will?
If so, only the affected provisions are gone. Causation is necessary. |
|
|
Term
| What is a lucid interval? |
|
Definition
| A period in which an otherwise insane or person lacking capacity does possess the requisite testamentary capacity to execute a valid will. |
|
|
Term
| What is the CA standard for capacity? |
|
Definition
The testator must be able to: A) understand the nature of the testamentary act, (B)
understand and recollect the nature and situation of the individual's
property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will. |
|
|
Term
| What is an insane delusion? |
|
Definition
| A BELIEF ADHERED TO AGAINST ALL EVIDENCE TO THE CONTRARY. |
|
|
Term
| What are the elements of undue influence? |
|
Definition
| 1. The Donor was susceptible to undue influence. 2. The alleged wrongdoer had an opportunity to exert undue influence. 3. The alleged wrongdoer had a disposition to exert undue influence. 4. There was a result appearing to be the effect of undue influence. |
|
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Term
| Who has the burden of proof in an undue influence case? |
|
Definition
The proponent of the will has the burden to show due execution.
Then the burden shifts to prove the existence of the four elements to give rise to a presumption of undue influence.
The burden then shifts back to the proponent to prove the will wasn't a product of undue influence. |
|
|
Term
|
Definition
| Probate is a formal procedure by which a will is proven valid and the estate is administered by court determination. |
|
|
Term
| What is probate property? |
|
Definition
| Property that passes through a will or under the laws of intestacy. |
|
|
Term
|
Definition
| A system of default distribution of property in the event that no valid will or non-probate transfer of property exists. |
|
|
Term
| What is nonprobate property? |
|
Definition
| Property that passes outside a will under another instrument. |
|
|
Term
| When a person gives money under a will, they... |
|
Definition
| devise, give, or bequeath. |
|
|
Term
| What word is designated for persons who take under intestacy? |
|
Definition
|
|
Term
| What is the term for a person who dies with a will? |
|
Definition
| Testator or testatrix (female) |
|
|
Term
| What is informal probate and how does it work? |
|
Definition
| After appointing the personal representative of the administrable estate, the representative administers the estate without the help or necessity of court approval. The representative first petitions the court and then after being given approval is required to give notice to all interested parties, even those heirs disinherited by the will, then distribution happens. |
|
|
Term
| What is the term for the person who dies intestate? |
|
Definition
|
|
Term
| Under the UPC, what is the share of the surviving spouse? UPC 2-102 |
|
Definition
SEE UPC 2-102
The entire estate if no descendant or parent of the decedent survives the decedent OR all of the decedent's surviving descendents are also descendants of the surviving spouse i.e. kids AND the sirviving spouse has no other surviving descentdants.
2. The first 300K plus 3/4 of the balance of the intestate estate if there are no surviving descendants but there is a surviving parent of the decedent.
3. The first 225K plus 1/2 of the balance of the estate if all the descendants of the decedent are also descendants of the surviving spouse but the surviving spouse also has surviving descendants, not of the decedent.
4. The first 150K plus 1/2 the balance of the estate if one or more of the decedent's susrviving descendants are NOT shared with the surviving spouse. |
|
|
Term
| Under the UPC, what is the order of share passed that don't go to the surviving spouse? UPC 2-103(a) |
|
Definition
1. To the decedent's descendants by representation (UPC approach)
Then
2. Parents of the decedent equally or all or one if only one survives.
Then
3. Descendants of the decedent's parents (brothers, sisters, nephews).
Then
4. Decedent's grandparents or their descendants (1/2 to each side by representation)
Then
5. All one side of grandparents if only one side is alive.
Then
IF one deceased spouse with surviving descendants, to them by representation,
IF Multiple deceased spouses with surviving descendants, equal shares to each set of kids by representation. |
|
|
Term
| Under the UPC, if there is no taker after the grandparent's parentelic line, what happens to the estate? (UPC 2-105) |
|
Definition
| The estate passes (escheats) to the state. |
|
|
Term
| Under california law, what is the intestate share of the surviving spouse or domestic partner? (CPC 6401) |
|
Definition
The spouse gets all of the Community and Quasi-Community Property.
Separate property goes 1/2 to the surviving spouse if only 1 issue (child) or parents is alive.
1/3 of separate property if more than 1 issue or parentless grandchild is alive
Otherwise all separate property. |
|
|
Term
| Under the CPC and UPC, how long does a person have to survive a decedent to take under intestacy? |
|
Definition
|
|
Term
| How does English Per Stirpes work? |
|
Definition
| Property is divided into its set shares at the first generation level of the descendants of the decedents regardless of whether anyone is alive at the first level. |
|
|
Term
| How does Modern Per Stirpes work? |
|
Definition
| The inheritance is divided at the first level that has living descendants. |
|
|
Term
| How does the 1990 UPC per capita approach work? |
|
Definition
| It divides it evenly among every level according to those alive at each generation. |
|
|
Term
| What is a negative will, and how does the law treat the object of the negative will? UPC 2-101(b) |
|
Definition
| It is basically a will disinheriting someone specifically. They are treated as if they predeceased the decedent. |
|
|
Term
| What is a collateral kindred? |
|
Definition
| Persons related to the decedent by blood who arent direct ancestors or descendants. |
|
|
Term
| What is a first-line collateral? |
|
Definition
| Descendants of the decedent's parents, but not down the decedent's parentelic line. |
|
|
Term
| What is a second-line collateral? |
|
Definition
| Descendants of the decedent's grandparents, but not down the decedent's parentelic line. |
|
|
Term
| What is the parentelic system? |
|
Definition
| A system in which inheritance is distributed based on the lines in the chart in the book based on the distance the line is from the decedent. |
|
|
Term
| What is the degree of relationship system? |
|
Definition
| Used in CA, where past the direct descendants and grandparents, distribution is based on the number associated on the table of consanguinity. |
|
|
Term
| How far does CA go to distributing to collaterals |
|
Definition
| CA applies the degree of relationship test and uses a parentelic tiebreaker until it's clear that no one can be found, then it escheats to the state. |
|
|
Term
| How are half-brothers considered for distribution in CA? |
|
Definition
| Half brothers are considered full brothers. |
|
|
Term
| When can an adopted person inherit from the ex-natural parent? UPC 2-119 |
|
Definition
| Only when theyve been adopted by the other natural parent's spouse. OR By a relative of the genetic parent, the spouse, OR the surviving spouse of a relative of a genetic parent. |
|
|
Term
| What is the key determining factor in determining whether an adopted person can inherit? |
|
Definition
| Whether a parent-child relationship exists. |
|
|
Term
| How can a non-marital child inherit from the father. |
|
Definition
| Through 1. Acknowledgment of the relationship during life, OR 2. Clear and convincing proof of parentage after his death. |
|
|
Term
| UNDER CA LAW when can an adopted child inherit from his natural parent? CA 6451 |
|
Definition
| When the natural parent and child lived together as parent-child at any time, or the parent died before the child was born, but while co-habiting with the other parent AND the adoption was by the spouse of one of the natural parents or after the death of one of the natural parents. |
|
|
Term
| Can a natural parent inherit through a child who has been adopted by somebody else? |
|
Definition
|
|
Term
| Under CA law can a parent inherit through his child born out of wedlock? |
|
Definition
| Not unless 1. The parent acknowledged the child AND 2. the parent contributed to the support or care of the child. |
|
|
Term
| Can a child inherit from a foster or step-parent? CPC 6454 |
|
Definition
| If 1. The relationship behan in the person's minority, continuing throughout the joint lifetimes AND 2. It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the child BUT FOR a legal barrier. |
|
|
Term
| What is equitable adoption? (CPC 6455) |
|
Definition
It is proven by clear and convincing evidence that a parent 1. breached an agreement to adopt, 2. Made a good faith attempt to adopt. OR 3. Held the child out as being adopted.
The effect is an artificial judge-made adoption giving inheritance rights.
Many courts refuse to apply equitable adoption to testate estates. |
|
|
Term
| What is a posthumous child and the associated rule? |
|
Definition
A child conceived before the father's death but born afterwards.
Uniform parentage act presumes that the dead when born spouse is the father if the child is born within 300 days of the father's death. |
|
|
Term
| Is adult adoption permissible? |
|
Definition
| Some states restrict it, while others allow it, but the relative of an adult adoption have a better chance of setting aside a will for undue influence if the couple has gone through adult adoption rather than just put the person in the will. |
|
|
Term
| What is the UPC rule for intestate inheritance through assisted reproduction? UPC 2-120 |
|
Definition
The child inherits from the deceased parent if:
1. The parent consented to posthumous conception in a signed writing by clear and convincing evidence AND
2. The conception occurred within 36 months of death, or the child must be born no later than 45 months after the parent's death. |
|
|
Term
| What is the CPC rule for intestate inheritance through assisted reproduction? CPC 249.5 |
|
Definition
The child inherits if:
1. Decedent consented in a signed writing that his or her genetic material shall be used for the posthumous conception of a child
2. Within 4 months of decedent's death, the person in charge of the estate is given notice of possible posthumous conception
3. The child is conceived within 2 years of death of the decedent.
4. The child is not a clone of the decedent. |
|
|
Term
| If an heir was born after the decedent's death, but conceived before his death in California, can they inherit? CPC 6407 |
|
Definition
|
|
Term
| Can a surrogate mother have a parent-child relationship with the child? UPC 2-121 |
|
Definition
Not unless the surrogate is the genetic mother and no one else has a parent child relationship with the child (court order to the contrary is ok).
Assisted reproduction where mother is artificially inseminated is a perfect example. |
|
|
Term
| What is an advancement, what are the presumptions, and how do they work. CPC 6-409, UPC 2-109 |
|
Definition
At common law, All gifts made to decedent’s children during their lifetime are assumed to be advancements.
Under the CPC and UPC they are not presumed unless there is written acknowledgement at time of delivery that it's an advancement.
Calculated using the hotchpot method. Add the estate to the amount advanced, divide between the takers, and subtract the amount of advancement from that person's take. |
|
|
Term
| What is the CPC rule for a slayer, and how does it treat the slayer? CPC 250-254 |
|
Definition
| If proven by a preponderance of the evidence standard that a person feloniously and intentionally killed a person, the person is treated as being predeceased the decedent. Criminal conviction is conclusive. |
|
|
Term
| What is the UPC rule for slayers? UPC 2-803 |
|
Definition
| If proven by a preponderance of the evidence standard that a person would be found criminally liable for feloniously and intentionally killing the decedent, the person is treated as being predeceased the decedent. A conviction is conclusive. |
|
|
Term
| Other than Slayer statutes, what other types of offenses does CA prohibit inheritance if found to have have committed? CPC 259 |
|
Definition
| Elder abuse, but it must be found by clear and convincing evidence. |
|
|
Term
| What is disclaimer and why might someone do it? |
|
Definition
| It's where a person refuses to inherit from intestacy or a will, typically to avoid creditors. The person is simply treated as having predeceased the decedent. |
|
|
Term
| What is competent evidence in showing undue influence or lack of undue influence? |
|
Definition
1. Weakened mental, physical condition of the testator.
2. The wrongdoer’s participation in the execution of the will.
3. Independent advice sought by testator?
4. Was the will or will substitute prepared in secrecy?
5. Did the attitude of the testator change in regard to others because of the relationship with the wrongdoer?
6. Large discrepancy between the previous and new will?
7. Continuity in the purpose of prior and this will?
8. Would a reasonable person consider the dispo unfair, unjust, disinheriting family, etc? |
|
|
Term
| What is a confidential relationship? |
|
Definition
| 1. Fiduciary (attorney-client) 2. reliant- question of whether the testator put confidence and trust in the other person 3. dominant-subservient e.g., caretaker-ill person, parent/child. |
|
|
Term
| In CA, donative transfers to these types of people are invalid unless reviewed by an independent attorney. CPC 21350 |
|
Definition
| Care custodian, a relative of the care custodian, Drafter, relative of the drafter, partner or person with interest in the law practice of the drafter, a fiduciary to the donor, A person related to the fiduciary |
|
|
Term
| What is the minority approach to burden allocation for undue influence cases? |
|
Definition
| The entire burden is on the will contestant to show undue influence. |
|
|
Term
| What is a no-contest clause? |
|
Definition
| A clause which states that a beneficiary who challenges the will for any reason will not take under the will if they lose the challenge. They are enforceable. |
|
|
Term
| What are the formalities for a valid attested will under the UPC? UPC 2-502 |
|
Definition
1.In writing 2. Signed by the testator or in the testator's name by another individual in the testator's conscious presence at the testator's direction.
AND EITHER
3A: Signed by the two witnesses within a reasonable time of witnessing the signing or after the testor acknowledged the signature to them
OR
Acknowledged by the testator before a notary. |
|
|
Term
| What is the subscription requirement and how many states have adopted it. |
|
Definition
| It requires the testator's signature at the bottom of the document, and it's the very small minority rule. |
|
|
Term
| When it's required in CA that the document is signed in the presence of two witnesses, what does that mean? |
|
Definition
There are two tests: The line of sign test requires the witnesses to be in the testator's line of sight.
The conscious presence test is when through sound, sight, or general consciousness of events, comprehends that a witness is signing. |
|
|
Term
| What are the formalities for CA attested wills. CPC 6110 |
|
Definition
-Requires at least 2 witnesses see T either sign or acknowledge his will
-W’s must see this together at the same time!
-W’s though don’t need to sign the will in T or the other W’s presence.
-W’s only need to sign the will within T’s lifetime (though Harmless Error rule applies in CA may be applied if not)
-W’s need to understand that it is the will they are signing |
|
|
Term
| Does the will signature have to be perfect? |
|
Definition
| No,as long as the testator intended the signature to be their signature, even typewritten signatures have been upheld. |
|
|
Term
| Can an interested witness witness a will under the UPC? UPC 2-505 |
|
Definition
|
|
Term
| Can an interested witness witness a will under the CPC? |
|
Definition
| They can sign as long as there are at least 2 other uninterested witnesses. If not, there is a presumption of undue influence that's triggered. If the witness cannot rebut the presumption, the amount is "purged" meaning they can only take as much as they would have taken under intestacy. |
|
|
Term
| What is the substantial compliance doctrine? |
|
Definition
| Where a will is not in accord with the statutory formalities of a will, the court will deem the defective will proper if it substantially complies with the formalities. |
|
|
Term
| What is the harmless error rule? |
|
Definition
| Court can excuse defects if there is clear & convincing evidence that decedent intended the document to be his/her will (must be intent for the document to be a will, not just a paper showing intent for disposition of the property). |
|
|
Term
| Does the UPC apply harmless error or substantial compliance and to what extent? |
|
Definition
| Harmless error for wills, will revocation, revival, and will addition and alteration. |
|
|
Term
| Does the CPC apply harmless error or substantial compliance and to what extent? |
|
Definition
| It applies the harmless error rule for witness attestation mistakes, but the testator must sign. |
|
|
Term
| What is a notarized will and is it valid under the UPC and CPC? |
|
Definition
| It's valid under the UPC and it's where a notary or individual authorized to take acknowledgements can be the sole witness. |
|
|
Term
| What is a statutory will and is it valid under the UPC and CPC? |
|
Definition
| It's valid under the CPC, 6420 and it's basically a form will that someone can fill out and follow the instructions. |
|
|
Term
| What is a holographic will? |
|
Definition
| A will written and signed by the testator's hand. They can be written on anything. |
|
|
Term
| Does a court admit pre-printed wills with handwritten parts as holographic under the UPC? |
|
Definition
| The court applies a "material portions test and allows extrinsic evidence to prove the intent under harmless error analysis. |
|
|
Term
| Does a court admit pre-printed wills with handwritten parts as holographic under the CPC? |
|
Definition
| The court applies a "material provisions" test and harmless error also applies. Additionally, 6111(c) allows commercially pre-printed forms. |
|
|
Term
| What are the two ways to revoke a will? |
|
Definition
1. Subsequent writing executed with the will formalities that explicitly revokes or has contradictory provisions to the previous will. (If the will is only partially inconsistent, it only revokes those provisions that are inconsistent) OR
2. Physical act such as burning or destroying the will. |
|
|
Term
|
Definition
| A new will that doesnt make a complete disposition and which allows the provisions of an old will that aren't altered by the new will to stay intact. THey supplement rather than replace an earlier will. |
|
|
Term
| When does a presumption of revocation arise? |
|
Definition
| When the decedent's will can't be found and there is reason to believe that they were the last person in possession. It is presumed destroyed, rather than revoked. If it is partially torn, it is not presumed destroyed. The presumption may be rebutted by a preponderance (sometimes C+C), a lawyer's copy will rebut. |
|
|
Term
| What is dependent relative revocation? |
|
Definition
| If the testator revokes his will on a mistaken assumption of law or fact (typically they think a new will is valid but it’s not), the revocation is ineffective if the testator would not have revoked his will had he known the truth. DOCTRINE IS ONE OF PRESUMPTIVE INTENT, NOT ACTUAL INTENT. Presume that the testator preferred the old will to intestacy. A problem arises where the new gift decreased what the person would have taken under the old one. The court makes a legal fiction requiring that the old will's revocation was contingent on the new will's proper execution. |
|
|
Term
|
Definition
| Where an old will is revived after being extinguished because of the testator's act. |
|
|
Term
| What is the minority rule for revival? |
|
Definition
| Will number 2 legally revokes number 1 and cannot be revived unless re-executed or republished with will formalities. Not the UPC or CPC rule |
|
|
Term
| What is the majority rule for revival? |
|
Definition
If the entire will is revoked, revival is not presumed. The burden is on the person trying to prove revival to show from the circumstances of the revocation of the previous will or from the prior contemporaneous declarations of the testator that he wants it revived.
If the second will is only a partial revocation, and then it's revoked, revival of the partially revoked first will is presumed under the UPC, and revival is NOT PRESUMED under the CPC...unless it is evident.
If a third will revokes the second will, the terms of the 1st will are not revived unless the 3rd will says so. |
|
|
Term
| Are provisions in a will for a spouse revoked upon divorce? |
|
Definition
|
|
Term
| What happens if a person executes a will and subsequently gets married? |
|
Definition
Majority: The new spouse will get an intestate share unless omission of that person was intentional.
Minority: Premarital wills are revoked entirely upon marriage. |
|
|
Term
| What does integration mean? |
|
Definition
| It means all papers present at the time of execution intended to be part of the will are integrated into the will. Presumed integration when fastened or stapled together. |
|
|
Term
| What is republication by codicil? |
|
Definition
| When a codicil is valid, the first will is re-executed at the time the codicil is executed, so if another will was executed between the first will and the codicil, that one is revoked where it would carry out the testator's intent. |
|
|
Term
| What is incorporation by reference? |
|
Definition
| A writing in existence when the will is executed may be incorporated into the will if expressly referred to and the will manifests an intent and describes the writing sufficiently to permit its identification. If not in existence at the time of the will, it must be re-executed after it exists. |
|
|
Term
| Does the physical tangible property incorporated by reference in another writing need to exist at the time of execution? |
|
Definition
| NO, however, it cannot be MONEY, AND in CA no one item can exceed 5K, and a total of 25K in value is the cap. |
|
|
Term
| What is an act of independent significance? |
|
Definition
| if the beneficiary or property designations are identified by acts or events that have a lifetime significance/motive apart from their effect on the will, the gift is upheld. EX: B gets my car when I die. She buys a car before she dies: Since buying a car has a "lifetime motive" to drive a better car, apart from its effect on the will, it's valid. |
|
|
Term
| If a will has conditional language like If I die in surgery, Jason gets my car, and the testator doesn't die in surgery, does Jason take? |
|
Definition
| Yes, majority of states presume the person still wanted this to happen. |
|
|
Term
| Can a person enter into a contract relating to a will? |
|
Definition
| A person may enter into a contract to make a will, or not to revoke a will. The law of contracts, not the law of wills applies. The third party must sue under the law of contracts to enforce the K. If a valid K is found, the court may impose a constructive trust on the estate or its beneficiaries, order specific performance, award damages, or grant injunctive relief. |
|
|
Term
| What is a patent ambiguity? |
|
Definition
| An ambiguity on the face of a will. |
|
|
Term
| What is a latent ambiguity? What are the types? |
|
Definition
Equivocation: when the will states a name and there are two people by that name. Extrincic evidence is admitted in these cases. Personal usage exception: When the testator always referred to a beneficiary in a certain way, evidence of this can be introduced to show which person the disposition was intended for.
2. When the will describes property or a beneficiary and no such thing exists under the given description. Extrinsic evidence admissible. |
|
|
Term
| What are the two majority rules regarding ambiguities in wills? |
|
Definition
1. Plain meaning rule: extrinsic evidence can be admitted for some ambiguities, but the plain meaning of the words of the will can’t be disturbed by evidence that another meaning was intended.
2. No reformation rule: Court will NOT reform mistakes in the will even if it better comports with T’s intent. Courts are starting to move towards reformation when it frustrates the testator's intent. |
|
|
Term
| Under the UPC 2-302 what happens if the testator omits a child because they think their child is dead |
|
Definition
| The child receives an intestate share of the estate. |
|
|
Term
| Under the UPC 2-805, what type of reformation can be done to correct mistakes? |
|
Definition
| Can correct mistakes to conform with testator's intent, the person must simply prove mistake of fact or law by clear and convincing evidence. |
|
|
Term
| Under the CPC 6111.5, When is extrinsic evidence allowed to correct patent and latent ambiguities? |
|
Definition
| Only when it's ambiguous. Words take their ordinary meaning, and the intent of the testator is controlled. This applies to intervivos and nonprobate transfers as well. |
|
|
Term
| What happens when a gift lapses |
|
Definition
| Occurs when a beneficiary doesn’t survive the testator—the gift fails. Almost all states have anti-lapse statutes wherein another beneficiary is substituted for the predeceased devisee. |
|
|
Term
| What is the no-residue of a residue rule? |
|
Definition
| A minority application where the other residue takers can’t get the dead residue recipient’s share—instead it goes through intestacy. |
|
|
Term
|
Definition
| A devise made to a person who is already dead. |
|
|
Term
| What is the UPC anti-lapse rule? |
|
Definition
| Gifts to grandparents and their descendants that have lapsed pass to the giftee's descendants. |
|
|
Term
| What is the CPC anti-lapse rule? |
|
Definition
| Applies anti-lapse to kindred of the testator and kindred of the testator's spouse. Substitutes the issue of the deceased transferee in the event of lapse. |
|
|
Term
| What do words of survivorship...if A survives me...do to anti-lapse statutes |
|
Definition
| Under the UPC, the anti-lapse statute still controls. Under the CPC words of survivorship are allowed to bar antilapse statutes. |
|
|
Term
| What is a class gift, and when is a class gift not presumed. |
|
Definition
| A gift to a discernable class of persons. It's not presumed when the gift is to the class and individuals. To my children...Marsha, Kevin, and Lisa |
|
|
Term
| What is ademption by extinction? |
|
Definition
| occurs when specific devises are sold, lost, etc. DOES NOT apply to general, demonstrative, or residuary devises. |
|
|
Term
| What is a specific devise? |
|
Definition
| A specific piece of property |
|
|
Term
| What is a general devise? |
|
Definition
| A general amount of money to a beneficiary that has no specific source. |
|
|
Term
| What is a demonstrative devise? |
|
Definition
| a general devise payable from a specific source ($1,000 to be paid from the sale of my Apple stock). |
|
|
Term
| What is a residuary devise? |
|
Definition
| all the rest of the testator’s property that hasn’t been already devised. |
|
|
Term
| What are the views on what happens when something is adeemed by extinction? |
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Definition
1. Traditional Identity Theory—if a specifically devised items is not in T’s estate, the gift is extinguished at the beneficiary gets nothing to make up for it.
2.New Intent Theory—if a specifically devised item is not in T’s estate, the beneficiary can still be entitled to the replacement, or the cash value, of the original item if they can show that this is what the Testator would have wanted. |
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Term
| Under the UPC, what is the rule for ademption by extinction? |
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Definition
| applies the intent theory and (5) allows non-ademption for property that has been specifically replaced (for this, look at T’s intent and T’s use of the replacement property—if it’s truly a replacement, then property does NOT adeem) |
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Term
| What is ademption by satisfaction? |
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Definition
| Pretty similar to advancement, If the property is already given before T dies, then there is a rebuttable presumption that the property is advanced. |
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Term
| Who is responsible for liens on the property? |
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Definition
| The beneficiary of the property. |
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Term
| When the estate doesnt have enough property to pay off devises, what happens? |
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Definition
The shares are abated, meaning shares get taken ina specific order.
IN CA, the order is pro rata:
Intestacy
Residuary
General devises not to relatives
General devises to relatives
Specific and demonstrative not to relatives
Specific and demonstrative to relatives
UNder the UPC, the order can be changed by intent. |
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Term
| What is an intervivos trust |
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Definition
| A trust made within the settlor's lifetime. Can be revocable or irrevocable. |
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Term
| What two ways can a trust be created? |
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Definition
A deed of trust which transfers legal title to property to be held in trust to the trustee who distributes upon death.
A declaration of trust where the settlor simply declares the property in trust where he is the trustee for his life and then it gets distributed when he dies. |
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Term
| Who retains control of a revocable inter vivos trust? |
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Definition
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Term
| Do non-probate transfers have to comport with will formalities? |
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Definition
| No, because they are defined as non-testamentary |
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Term
| What types of wills rules are applied to will substitutes? |
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Definition
| most of them except the formalities, like abatement, ademption. The third restatement says that where appropriate, substantive wills restrictions apply to will substitutes. |
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Term
| Can creditors get to non-probate transfers (not trusts)? |
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Definition
| Yes if probate estate can't satisfy the debts, but not joint tenancies. |
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Term
| Do revocation by divorce statutes apply to life insurance policies? |
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Definition
| Majority says they don't, but the minority UPC says they apply to most non-probate transfers. |
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Term
| What are the two types of employee benefit plans and how do they work? |
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Definition
| DEFINED BENEFIT PLAN: Employee with a determined amount of benefits payable for a certain amount of years until the employee dies. The employee gets money per year based on how long they’ve worked at the place and other factors. DEFINED CONTRIBUTION PLAN: The employer contributes a certain amount of money based on employer profits and the retirement is based on the amount contributed plus the success of the stock options etc. |
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Term
| Employee benefits per pensions etc. are governed by... |
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Definition
| ERISA...A surviving spouse who is also the named beneficiary of the pension plan continues to get the ENTIRE pension after spouse’s death. However, even if somebody else is the named beneficiary of the pension plan, the wife STILL gets 1/2 of the pension no matter what (the other 1/2 going to the named beneficiary). If you remarry, the new spouse gets half of your pension no matter what. If you divorce, under ERISA, the ex-wife gets half of the benefits. If you rename the beneficiary, they get ½ of ½. |
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Term
| When a joint bank account is created, what happens upon death? |
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Definition
| The other holder gets the funds unless there is clear and convincing evidence to rebut the presumption. |
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Term
| What is the homestead allowance and what is the rule under the UPC and CPC |
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Definition
| Protects the family home from creditors. Under the UPC it protects up to 22,500 and under CA it's court discretion. |
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Term
| What is a personal property set aside and what is the rule under the UPC and CPC |
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Definition
| Its an allowance to keep tangible personal property from creditors. UPC allows 15K and CPC gives court complete discretion in setting aside any or all tangible property. |
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Term
| What is a family allowance and what is the rule under the UPC and CPC |
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Definition
It gives families an allowance for maintenance and support of the surviving spouse (and often of dependent children) during estate administration.
Under the UPC, the allowance can be given for a "reasonable amount of time" but no more than a year if the estate is inadequate to pay creditors.
CPC allows it as is "necessary for the maintenance of the surviving spouse and minor children. |
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Term
| In a CP state, all property acquired during marriage is CP except: |
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Definition
| Property acquired by gift or inheritance. |
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Term
| When property is purchased with both SP and CP in a CP state, the surviving spouse's rights are either: |
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Definition
1. Inception-of-Title Rule—separate purchaser keeps the property, but pays back what was paid for with community property money.
2. Pro Rata Share Rule—spouse gets % of property equal to % paid for with community property.
3. Time of Vesting—title passes only once payments are complete, so the property becomes entirely community property once it’s paid off. |
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Term
| What are the rights of a surviving spouse in a SP state? |
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Definition
| The surviving spouse gets 1/3 of the decedent’s estate automatically on death. So spouse can either take what they get from the will or renounce the will and take the FORCED or ELECTIVE SHARE. |
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Term
| What governs whether the law of CP or SP applies to real property? |
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Definition
| The law of the situs controls the problems related to land (where it is located) |
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Term
| What governs whether the law of CP or SP applies to characterization of personal property? |
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Definition
| 2. The law of the marital domicile at the time that personal property is acquired controls the characterization of the property (that is, as separate or community) |
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Term
| What governs the survivor's marital rights? |
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Definition
| 3. The law of the marital domicile at the death of one spouse controls the survivor’s martial rights. |
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Term
| What is quasi-community property? |
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Definition
| Property acquired in an SP state that would have been CP if acquired in CP state. |
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Term
| Can a spouse's elective share come through a decedent's trust? |
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Definition
Only if the trust was created by the decedent, but not where the trust was created by a third party. AND
It meets the requirements of the intent to defraud or illusory transfer test. |
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Term
| What is the intent to defraud or illusory transfer test. |
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Definition
illusory transfer—(MAJORITY RULE) did the decedent divest himself of the property in good faith? Main aspect of the test is decedent’s control
Intent to defraud:what was the decedent’s intent in creating a non-probate holding of his estate? If it was to keep property from his spouse than it fails and it can be reached by the elective share.
-CONSIDERS: control, timing, how much interest the spouse was being deprived of, and evidence of intent. |
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Term
| How does the UPC calculate the elective share of the surviving spouse? |
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Definition
USE CHART ON 499
1. Calculate the Net Probate Estate and subtract the debts.
2. Add to it the value of Non-Probate Estate (including gifts made within 2 years of death (by deceased spouse) that exceed $13,000 (ONLY the amount exceeding*) and life insurance).
3. Then calculate what the spouse is getting through non-probate transfers.
4. Then add to (3) the value of the surviving spouse’s (separate?) assets/property at decedent’s death.
5. Then add to (4) the value of surviving spouse’s non-probate transfers (including gifts within the past 2 years) at the time of decedent’s death.
6. Figure out entitled % from sliding scale chart
7. Multiply % by augmented estate & divide by two. That amount is what the surviving spouse gets for their elective share.
8. If the amount is insufficient, it is satisfied by shares from others who would ordinarily take under the will per pro rata basis.
If the elective share is less than $75,000, then surviving spouse gets $75,000.
-Surviving Spouses get 50% of deceased spouse’s pension no matter what. |
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Term
| To override prenup, challenger must show |
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Definition
| 1. The agreement was not voluntary OR the agreement was unconscionable when executed and the party did not have fair and reasonable disclosure of the other party's finances and property. |
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Term
| What happens if a child is omitted from a will under the UPC? |
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Definition
| If a will is made before the child is born, the child takes what he would have taken under intestacy. If the testator has one or more children, the omitted child takes the same share that the other children do, and gets a pro-rata abation from each child. |
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Term
| What happens if a child is omitted from a will under the CPC? |
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Definition
If a will is made before the child is born, the child takes what he would have taken under intestacy. Share is first taken from the part of the estate not disposed of by the will, then pro-rata from all beneficiaries, subject to whether a specific item was intended for a specific person which the court may exempt.
The child does not take if the omission was intentional, the decedent had one or more children and devised substantially all the estate to the other parent of the omitted child, OR the decedent provided for the child outside of the will and intended it to be in lieu of the provision in the will. |
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Term
| A testamentary trust is always |
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Definition
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Term
| Can a trustee be sued for negligent management of the trust? |
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Definition
| A trustee may only be sued in his position as trustee, but may not be sued personally for negligent management of the trust. |
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Term
| What duties is the trustee bestowed with as a fiduciary to the trust? |
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Definition
| Loyalty, prudence, impartiality between classes of beneficiaries, not to commingle trust property with trustee’s property, inform and account to the beneficiaries. |
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Term
| What are two ways in which a trust can be formed. |
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Definition
| Deed of trust, declaration of trust. |
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Term
| What are the five requirements to forming a trust? |
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Definition
| Intent to create a trust, Property (res), Beneficiaries, Valid trust Purpose, Abide by the formalities |
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Term
| Regarding the intent element of trust formation, what is required? |
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Definition
| The function of the trust is what is looked at, not the form. Meaning that an intent to create a trust does not need to be shown by express language "trust", but the language "for the use and benefit of" will almost always manifest an intent. |
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Term
| What is precatory language? |
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Definition
| Language that merely expresses a desire or wish for how the property should be used, but no legal obligation is created. This is opposed to trust language which makes a specific request that legally creates a trust. |
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Term
| How much property must be transferred into the trust to satisfy the property requirement? |
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Definition
| It can be an interest in something, minimal property, etc. Contingent interests can be argued either way. |
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Term
| What type of beneficiary is permissible in the formation of a trust? |
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Definition
| There must be one or more ascertainable beneficiaries. Settlor can't be sole beneficiary, settlor, and trustee. A trust can be made for unborn children or classes of people, but must be an ascertainable group. |
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Term
| Are trusts for animals alloweD? |
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Definition
| Yes in A 15212 and interested 3rd parties may intervene for the maintenance of the animal. |
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Term
| What is a mandatory trust? |
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Definition
| instructs trustee exactly how to distribute (no trustee discretion) |
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Term
| What is a discretionary trust? |
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Definition
| trustee has certain discretion over the distributions |
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Term
| What are the types of discretionary trusts? How do they function? |
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Definition
Spray trusts: trustee must distribute the income, but has complete discretion as to which beneficiaries get it and how much. Sprinkle Trusts:allows trustee to generate income for the trust.
Support trust:trustee must simply provide for the support & maintenance of the beneficiary as they enjoyed when trust was made (limits trustee more than a spray trust). |
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Term
| What is the difference between a trustee who has sole/absolute/uncontrolled discretion and one who has simple discretion? |
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Definition
| If a trustee has sole/absolute/uncontrolled discretion, simply a GOOD FAITH standard applies. If trustee has simple discretion—than a REASONABLENESS and GOOD FAITH standard is used. |
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Term
| In a support trust, in addition to the fiduciary duty of good faith and reasonableness depending on the discretion, what other duty is bestowed upon the trustee? |
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Definition
| The duty to inquire into the assets of the beneficiary in order to determine whether additional support is needed. |
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Term
| What is an exculpatory clause and how is it proven in court? |
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Definition
Clauses that relieve the trustee of all personal liability (up to ‘willful neglect’ or ‘reckless indifference’.
In order to enforce, the drafter of the clause must prove 1. The exculpatory term was fair and reasonable under the circumstances AND 2. Its contents were adequately communicated to the settlor. |
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Term
| Are mandatory arbitration clauses proper on a trust? |
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Definition
| Authority is contradictory on the matter. |
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Term
| What is the difference between the UTC and the RSTMT view on when a creditor has a right to compel a trustee to distribute funds? |
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Definition
UTC says a creditor can't compel discretionary trustee to distribute even if the trustee has abuse his discretion or the beneficiary may compel distribution. Creditor remedy is to get a court order that the subsequent distributions go to the creditor.
The restatement takes the view that the creditor can attach and force distributions to be paid to them. |
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Term
| How are hybrid discretionary trusts treated regarding creditors rights under the UTC and RSTMT? |
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Definition
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Term
| What is a spendthrift trust and how is it formed? |
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Definition
A trust in which beneficiary can’t voluntarily alienate their share and creditors can’t touch it even if it’s a mandatory trust.
The provision creating the trust must say the beneficiary "may not alienate his or her interest or "spendthrift trust". |
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Term
| What types of creditors can compel a spendthrift trust to pay? |
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Definition
| Claims of children and spouses, trustee for trustee's fees, and IRS or state tax creditors. |
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Term
| What is the rule for whether a trust can be modified or terminated? |
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Definition
The administrative and distributive terms of a trust can be deviated from when compliance would defeat or substantially impair the accomplishment of the purpose of the trust because of changed circumstances not anticipated by the settlor. Courts are more likely to change administrative terms than distributive terms.
CPC rule is similar. |
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Term
| Under the RSTMT, when there is no equitable deviation, can a trust be modified? |
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Definition
| allows for termination/modification of a trust if all beneficiaries consent, and the court applies a BALANCING TEST—if reason for modification outweighs settlor’s purpose, than it’s allowed. |
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Term
| Under the UTC, when there is no equitable deviation, can a trust be modified? |
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Definition
Can terminate or change upon consent of all beneficiaries if in conjunction with settlor’s purpose.
-But allows it even if NOT all beneficiaries agree as long as the disagreed beneficiary will still be protected and it still is in conjunction w/ settlor’s purpose. |
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Term
| In CA is a trust presumed revocable or irrevocable? |
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Definition
| Presume trusts are revocable unless stated as irrevocable. |
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Term
| Under the RSTMT is a trust presumed revocable or irrevocable? |
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Definition
| inter vivos trusts are presumed revocable as long as settlor retains an interest in the trust property—otherwise, presume its irrevocable. |
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Term
| What's the CPC rule for terminating a trust? |
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Definition
| On petition by a trustee or beneficiary, if the court determines that the FMV of the principal of a trust becomes so low in relation to the costs of administration that the continuance would substantially impair the accomplishment of its purposes, the court may terminate/modify/appoint a new trustee. If the trust principal does not exceed 40K, the trustee has the power to terminate the trust. |
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