Term
| If there is no will and a spouse dies, what happens to the CP? |
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Definition
| All goes to surviving spouse |
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Term
| How is SP allocated if a spouse dies, and leaves a surviving spouse: |
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Definition
- 1/2 to spouse and 1/2 to:
• One child or issue
• If no child/issue, then to parents or issue of parents (brothers & sisters).
-1/3 to spouse or 2/3 to:
• Two or more children or their issue.
-All to surviving spouse if:
• No children or issue.
• No parents.
• No issue of parents (brothers & sisters) |
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Term
| How is SP allocated if a spouse dies, leaving no surviving spouse: |
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Definition
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Term
| How is SP allocated if a spouse dies, leaving no surviving spouse, & no children or issue: |
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Definition
-Surviving parent(s)
-Siblings & their issue (brothers, sisters, nieces, nephews, etc.)
-Surviving grandparents & their issue - (aunts, uncles, first cousins, etc.)
-Former step-children & their issue
-Next of kin.
-Other surviving relatives of decedent (great grandparents, great aunts/uncles, second cousins, etc.)
-Former in-laws & their issue
-Escheat – back to gov’t |
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Term
| If both the decedent and heir die at the same time, what must the heir prove to inherit under intestacy? |
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Definition
Need to establish by clear and convincing evidence that an heir survived the decedent by 120 hours for purposes of intestate succession
Note: Spouses do NOT have the 120 requirement |
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Term
| If order of death cannot be proven by clear and convincing evidence that one of the persons survived the other, the property of each person will be treated as: |
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Definition
| If that person survived the other. |
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Term
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Definition
| Horizontal equality; each take at each generation treated equally |
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Term
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Definition
| Vertical equality; each line of descent is treated equally. Always start with decedent's children (even if dead, they get equal share as long as they left issue) |
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Term
| A father-child relationship is presumed in the following situations: |
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Definition
• Child born during marriage or within 300 days of termination of the marriage
• Mother & father attempted to marry lawfully before the birth or 300 days after
• Mother and father attempted to marry after the child’s birth AND the father is named on the birth certificate OR is paying child support
• Father is holding out child as his own or by court order |
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Term
| A natural parents or relatives of that natural parent can only inherit from the child born out of wedlock if: |
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Definition
-They acknowledge the child; AND
-Contributed to the support of the care of the child. |
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Term
| Does adoption sever inheritance from natural parent? |
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Definition
Yes, unless:
-they lived together OR
-living natural parent lived with the deceased natural parent at the time of the child's conception AND the new spouse adopts after the death of the natural parent
Example: W and H1 divorce. W remarries H2 and H2 adopts kid. Kid can inherit from W and H2 only. H1 relationship is severed if he consents to adoption. |
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Term
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Definition
| Children have the right to inherit if relationship was established through a person's minority and continued through their lifetime if there is clear and convincing evidence that establishes that foster parent or stepparent would have adopted but for a legal barrier (i.e., natural father does not consent to adoption of wife's new husband) |
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Term
| A child conceived and born after death of decedent shall be deemed to have been born in the lifetime of the decedent (and thus can take under intestacy laws) if: |
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Definition
The child proves by clear & convincing evidence that the decedent:
-Left a signed & dated writing
-Within 4 months of death served the writing on the person designated to control the genetic material
-The child must have been in utero within 2 years death and not a clone of decedent |
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Term
| What will affect intestate succession? |
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Definition
-Advancements
-Disclaimers
-Bars to Succession
-Homicide
-Elder abuse
-Duress, fraud, undue influence |
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Term
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Definition
Any lifetime gift by decedent to a child that is presumed to be a prepayment of the child's intestate share. Child must prove outright that it was a gift. There must be:
-A writing acknowledging that gift is advancement
-Gift is valued at the first time of possession or death of decedent, whichever occurs first.
Note: If beneficiary predeceases recipient, advancement will not be counted against beneficiaries' issue |
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Term
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Definition
Beneficiary disclaims the gift. The disclaimed interest passes if disclaimant predeceased decedent. It must be:
-in writing
-signed by disclaimant
-identify decedent
-describe the interest being disclaimed
-writing must state there is a disclaimer and the extent of it
-disclaimer must be filed with the fiduciary within a reasonable time after learning of the interest (usually 9 months). An individual CANNOT disclaim after benefit is accepted. |
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Term
| Capacity to create a will |
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Definition
-Testator must be 18 years old
-Of sound mind
-Competent |
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Term
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Definition
-Testator has a false belief
-That false belief was a product of a sick mind
-There is no evidence to support the belief, not even a scintilla of evidence
-Delusion must have affected testator's will
Note: Diagnosis or mental disorder is not sufficient.
Result: if not of sound mind, may invalidate entire will or only part of it |
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Term
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Definition
A testator must be able to communicate his/her wishes, and understand and appreciate:
-Know the natural object of her bounty (spouse, issue, parents & those affected by will)
-Know the nature of her act (know she is executing a will – does not need to know legal technicalities) |
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Term
| A person who intentionally and feloniously kills decedent is: |
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Definition
| Not entitled to any property, interest, or benefit under a will or trust, any property of the decedent by intestate succession, and any of the decedent’s quasi-community property the killer would otherwise acquire. There must be final judgment and if no final judgment, then party who wants to prove felony has to prove by preponderance of evidence (not beyond all reasonable doubt) |
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Term
| In elder abuse, the abuser is deemed to predecease decedent if: |
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Definition
-It is proven by clear and convincing evidences that the person is liable for physical abuse, neglect, and fiduciary abuse of elder or dependent abuse
-The person acted in bad faith
-The person is found to be reckless, oppressive, fraudulent, or malicious in committing these acts AND
-Decedent, from the time of the acts until the time of death, was substantially unable to manage his/her financial resource or resist fraud or undue influence. |
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Term
| Undue influence Prima Facie |
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Definition
-Testator was susceptible to undue influence or domination by another
-Accused has opportunity to exercise undue influence
-Accused has disposition to influence for personal benefit AND
-Result isn't a natural disposition of testator's property. |
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Term
| Undue influence Case Law Presumption |
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Definition
Confidential Relationship + Suspicious Circumstances = Presumption of Undue Influence
For undue influence by prima facie or case law presumption, **Only that part of the will affected is invalid** |
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Term
| CA presumes that a provision of an instrument making a donative transfer to the following persons is the product of undue influence: |
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Definition
1) Drafter of the instrument
2) Relative, RDP, or employee of person who drafted the instrument
3) Partner/shareholder of any law partnership or corporation
4) Anyone with a fiduciary relationship with transferor or an employee, RDP, or relative of the fiduciary
5) Care custodian (or his/her employee, RDP, or relative) of transferor (dependent adult)
NOTE: if this is found, transferee is deemed to have predeceased the transferor and the gift lapses.s |
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Term
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Definition
Misrepresentation causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer’s favor
Example: Son learns testator is going to leave all to charity but lies and says charity cheats elderly citizens. Son then gets everything and charity gets nothing.
**Only that part of the will affected is invalid** |
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Term
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Definition
A person intentionally misrepresents the character or contents of the instrument signed by the testator, which does not in fact carry out the testator’s intent.
Example: Testator is given a document to sign purportedly a power of attorney, but in fact it is a will, and testator signs it.
**Entire will is invalid** |
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Term
| What does a valid will require? |
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Definition
1) Testamentary intent
2) Capacity
3) Formalities (if attested = signed & witnessed; if holographic will = testator's signature and material provisions in testator's handwriting) |
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Term
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Definition
| Intent for document to be will & disposition of assets upon death |
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Term
| CA distinction for testamentary intent: |
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Definition
-CA has a clear and convincing standard where the will can still be admitted into probate if the proponent of the will establishes by clear and convincing evidence that at the time testator signed the will, he intended the will to constitute his will.
-Witnesses do not have to sign in the presence of each other, do not have to sign in presence of testator, testator does not have to declare aloud to witnesses that it is his will (only have to understand it’s the will), and a signature at the end of will is not necessary (anywhere on the will is okay in CA). |
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Term
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Definition
The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be:
-Decedent’s will
-A partial or complete revocation of the will
-An addition to or an alteration of the will, or
-A partial or complete revival of his/her formerly revoked will or of a formerly revoked portion of the will |
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Term
| Requirements in an attested will: |
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Definition
1) Must be in writing
2) Signed by testator
3) Witnessed by at least 2 disinterested persons who are present at the time testator signs OR when testator acknowledges his signature; AND witnesses must understand that what they are signing is the testator's will. |
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Term
| 2 tests for "presence" in the witnesses signing of a will |
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Definition
Line of Sight test – testator does not actually have to see the witnesses sign but must be able to see them were the testator to look
Conscious presence test – testator, through sight, hearing or general consciousness of events comprehends that the witness is signing |
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Term
| Requirement for witnesses who sign a will: |
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Definition
-Must be competent
-Interested witness does NOT invalidate will (interested witness = a witness who is a beneficiary under the will)
-When interested witness signs, there should be two other subscribing witnesses. Otherwise, there’s a presumption of duress, menace, fraud or influence. If presumption is not rebutted, interested party can only take by intestate succession. (just invalidates the gift to that person) |
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Term
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Definition
1) Material provisions must be in handwriting of testator
2) Signed by testator (anywhere)
3) Intent (does not have to be on face of will) |
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Term
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Definition
A conditional will is one whose validity is made conditional by its own terms.
Example: “This is my will if I die in Europe during my vacation.”
The will is to be probated only if the condition is satisfied.
Conditional wills can be formal (attested) wills or holographic wills. |
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Term
| Requirements to revoke a will: |
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Definition
| Intent to revoke and comply with statutory requirements |
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Term
| A testator may revoke by: |
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Definition
-Subsequent instrument (subsequent will that revokes the previous will either expressly or by inconsistency)
-Physical act by testator or another individual in the testator’s conscious presence and by the testator’s direction (with the intent and for the purpose of revoking the will or part of the will)
-Operation of law (Dissolution or annulment of marriage or termination of RDP) Note: If testator wants to keep ex-wife/husband in will, they have to write a new will or codicil |
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Term
| If a holographic will is interlineated (i.e. instead of car, given Prius) then what occurs? |
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Definition
| A revocation and a new disposition (prior signature is adopted) |
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Term
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Definition
Codicil is a testamentary instrument which modifies, amends, or revokes a will. Must be executed with same formalities as a will.
Can be expressed or implied. |
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Term
| Does revoking a codicil revoke the will? |
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Definition
| No even if the testator intended it. The act must be performed on the will. |
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Term
| Revocation of a duplicate executed will results in: |
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Definition
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Term
| What is the effect of a codicil? |
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Definition
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Term
| When would codicils and republication be an issue? |
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Definition
Incorporation by reference
Pretermission |
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Term
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Definition
Wills not found at death are presumed revoked.
If original will is destroyed without the consent/intent of the testator or is lost, a copy can be used to prove the contents of the original (i.e., 09/11) |
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Term
| If a will is found in a mutilated condition at testator's death, and when last seen it was in testator's possession, there is: |
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Definition
A rebuttable presumption that testator mutilated the will with the intent to revoke the will
Example: Testator has a safety box in a bank, and is the only once with access. At testator’s death the will is found to be in a mutilated condition. It is presumed that testator mutilated the will with the intent of revoking the will. |
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Term
| A testator can revive a will by: |
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Definition
Re-executing the former will so that it complies with all statutory formalities (including intent); or
By executing a new testamentary instrument expressly providing that the former will is effective. |
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Term
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Definition
| Testator executes Will #1 and therefore executes Will #2 which revokes #1. Testator thereafter revokes #2 by physical act. Is Will #1 automatically revived? Will #1 is not automatically revived. It is revived only if testator manifests an intent to revive Will #1 or if he revokes Will #2 by codicil, then it must appear from the terms of the codicil that testator wanted will #1 revived. |
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Term
| Dependent Relative Revocation (DRR) |
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Definition
DRR is a common law doctrine that allows a court to disregard a valid revocation of W1 when it is revoked in order to effectuate W2.
DRR is applied when there is extrinsic evidence that the testator would not have revoked W1 but for the belief that W2 was valid. You then use Revival to reinstate the revoked will. |
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Term
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Definition
| T has a valid will that leaves everything to X. A year later he writes a second will leaving $25,000 to Y and the rest to X. T tears up the first will because he believes the second one is valid. At T’s death, the court determines that T’s 2nd will is not valid. Use DRR to revive 2nd will but you have to show intent |
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Term
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Definition
| A typewritten will says, “$1,000 to M”. T crosses out “M” and replaces it with “R.” The $1,000 gift to R fails because it is not attested. T would not have revoked the gift to M but for the belief that the gift to R would be valid. DRR applies and M takes the $1,000 gift. |
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Term
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Definition
| When there is a codicil, there is revocation. The original will (if valid) is deemed republished on the date of the codicil unless it is revoked. The will and codicil are read together and treated as a single instrument on the date of the last codicil. The original will is republished or re-executed as of the date of the codicil. Look to the date of the last codicil for clarification on conflicting provisions. |
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Term
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Definition
| Integration is an issue when the will consists of more than one piece of paper (or other material). All papers (or other materials) must exist at the time of the execution of the will that the testator intended. Intent is shown by physical or logical connection (continuing language, staples, binding of some sort). |
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Term
| Incorporation by reference |
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Definition
Refers to an external document/instrument that is not part of the will but must:
1) Exist at the time the will is executed (not in the future)
2) Show intent to incorporate that instrument
3) Sufficiently describe/name the instrument |
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Term
| Facts of independent significance |
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Definition
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death.
Can be used to identify a beneficiary or gift but it must have significance separate from its impact on the will.
Examples: “the contents of my safety deposit box,” “interest in the membership agreement,” “my softball team.” |
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Term
| Is there relief for mistakes or ambiguous language in a will? |
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Definition
No BUT extrinsic evidence is admissible to determine whether a document constitutes a will or to determine the meaning of a will or a portion of a will if the meaning is unclear. Can also be used to explain any ambiguity that helps us understand testator’s intent.
Example: Testator leaves to A and B. (meant not to leave it to B. Court will allow extrinsic evidence to show that it meant to leave all to A). BUT court wont allow extrinsic evidence where “Testator leaves to B” to show that he really meant A.” |
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Term
| When will reformation arise? |
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Definition
Arises where there was improper drafting. Courts have no power to reform wills. Only means for ascertaining the intent of the testator are the words written and the acts done by him. No extrinsic evidence allowed.
Example: Middle initials, street addresses and the like are highly susceptible to mistake so sometimes courts will ignore certain details. |
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Term
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Definition
If the beneficiary dies before the testator (or before testator indicated that beneficiary was to take the gift), the gift to the beneficiary fails/lapses. If the beneficiary is already dead at the time the will is executed, the gift is void. What happens to a lapsed gift depends on the type of gift and whether an anti-lapse statute applies and whether the no-residue-of-the-residue rule is still in effect.
• No-residue-of-the-residue rule = residue share passes by intestacy to the testator’s heirs |
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Term
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Definition
The lapsed gift is redirected to the descendants/issue of the beneficiary...provided that the will doesn’t express an intention to the contrary, the beneficiary’s death does not occur before the will was executed and the testator was not aware of the beneficiary’s death when the instrument was executed.
In CA, anti-lapse statute requires a kindred relationship (blood relative of testator or testator’s spouse) between the deceased beneficiary and testator
Look for language “if he survives me” or other expressed language that goes against an anti lapse statute. |
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Term
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Definition
Applies only to specific gifts that do not exist. It constitutes a revocation.
I.e. I give my ruby ring to Justine. But no ring is found after death. What happens? If gift is not there, it is extinguished. T’s intent may be able to save the replacement of the gift; Is there $ available after sale of that particular specific gift. If that gift was sold, is there anything that indicates intention that $ be given to the original person who was to get that gift.
Example: all my shares of Coca Cola. At time of will, 50 shares. At death 200 shares. Beneficiary gets 200 shares. |
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Term
| Ademption by satisfaction |
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Definition
A specific, general, or demonstrative gift may be satisfied in part or completely by T’s transfer of the gift to the beneficiary after executing the will, if T intends for the transfer to take effect.
-T’s intent must be in a contemporaneous writing stating that the gift is counted against or deducted from the testamentary gift.
-Beneficiary acknowledges in writing satisfaction of the gift OR
-The will provides for deduction of lifetime gift. |
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Term
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Definition
| No, the debt attached to any gift of property passes to the beneficiary along with the debt even if the will has a general provision that says all taxes are to be paid. |
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Term
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Definition
If an estate has insufficient assets to pay debts, the bequests must be reduced to yield some money. T’s intent followed if stated order of abatement. Otherwise, the following is the order of the gifts we will liquidate to pay off debts:
• Intestate property not included in the will
• Residuary Gifts (whatever’s left)
• General Gifts (1st to non-relatives, then relatives)
• Specific Gifts (1st to non-relatives, then relatives) |
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Term
| Elective Share in separate property states |
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Definition
There must be a will that leaves the spouse something. A state statute gives the surviving spouse the option to:
-Take under the will OR
-Renounce the will and take a fractional share of the estate. If spouse exercises elective share, she must renounce everything provided for her in the will. |
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Term
| Elective share in community property states |
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Definition
There must be a will that leaves the spouse something:
• A will (not the statute) gives the surviving spouse the option to exercise the election to take under the will OR take the community property that the spouse/RDP is entitled to by statute
• Widow’s Election: If the spouse exercises his/her “elective share,” he/she waives his/her right to the community property |
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Term
| A spouse is omitted from the will when: |
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Definition
The will existed PRIOR to the testator's marriage and the spouse is not mentioned in the will.
In CA, the legislature presumes that if a testator did not amend the will before dying, then testator made a mistake. |
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Term
| What will the omitted spouse be able to take when omitted from a premarital will? |
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Definition
The omitted spouse will receive an intestate share (CP + up to 1/2 of SP) unless:
-The omission was intentional as shown in the will
-Spouse provided transfers outside will; or
-Spouse made valid agreement waiving right to share in decedent's estate. |
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Term
| In satisfying the omitted spouse's share, what will be abated? |
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Definition
(1) The share will first be taken from the decedent's estate not disposed of by will or trust, if any.
(2) If that is not sufficient, so much as may be necessary to satisfy the share shall be taken from all beneficiaries of decedent's testamentary instruments in proportion to the value they may respectively receive. |
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Term
| What is a pretermitted heir? |
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Definition
| A child is pretermitted if born/adopted AFTER all testamentary instruments are executed and not provided for in any testamentary instrument/ |
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Term
| What does the omitted child get? |
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Definition
The omitted child shall receive a share of the decedent’s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.
An omitted child does NOT get a share if the omission was intentional. Thus, a child born or adopted BEFORE all testamentary instruments are executed and not provided for in any instrument is not pretermitted. Child takes nothing |
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Term
| What if the decedent did not provide for child b/c they believed the child was dead or was unaware of the child's birth? |
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Definition
Then the child gets an intestate share.
Abatement of property to satisfy the omitted child’s share:
-It may first be taken from decedent’s estate not disposed of by will or trust
-If that’s not sufficient, then it can be taken from all beneficiaries named in the will/trust in proportion to the value they may receive. |
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