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Wills & Trusts
Terms in this set (96)
Four Non-Probate Types of Property
(1) Joint Tenancy;
a. AKA Community Property with ROS
b. Upon death, the other JT owns everything
c. Two names on the title does NOT mean JT (exception: bank accounts)
(2) Life Insurance;
(3) Pay on Death (POD) / Transfer on Death (TOD) Contracts; and
(4) Inter Vivos Trust
a. Trustee owns assets - settlor does not own them
If YES to any of the above, the property is not subject to will or laws of intestacy.
If NO, go to probate...
General Rule for Probate Property
Probate property is subject to will or laws of intestacy
(1) First, pay all debts and final expenses
(2) Second, subtract all probate assets to spouse / DP
No Probate Required if
Balance is under $150k
But executor can still choose to go through probate AND heirs or creditors can force the executor to go through probate
Reasons to go Through Probate
(1) too much property to use expedited process
(2) not sure who decedent's creditors are
(3) cannot change title to probate asset any other way
Functions of Probate
(1) provide evidence of transfer of title to new owner
(2) protect creditors by providing procedure for debt payment
(3) distribute decedent's property to those intended after creditors are paid
Reasons to Avoid Probate
(3) time consuming
What assets are Subject to CA Jurisdiction
Real property always goes by law of situs, even if the entire marriage is in CA.
Personal property is governed by the decedent's domicile at death, no matter where its located.
Anyone who is married, even if they have moved out, are separated, or filed for divorce.
Marriage only ends when a court grants dissolution or annulment.
Good faith belief in marriage = inheritance in intestacy
In CA, domestic partner = spouse
Common Law Marriage
CA does not have it but will recognize it from other states.
Entire length of common law marriage must be completed in the other state.
Domestic Partner Elements
(1) Not married / DP with someone else;
(2) Not related by blood;
(3) at least 18 years old; and
(4) Same sex, OR different sex and over 62.
Property owned before THIS marriage; or
Property acquired after marriage by gift or inheritance.
Property that is not separate property
While husband and wife are still alive, each spouse owns 50%
Quasi Community Property
(1) All personal property (wherever located), and real property in CA, acquired by a decedent while domiciled in a separate property state, that would have been community property if domiciled here when acquired; and
(2) all personal property (wherever located) and real property here, that was acquired in exchange for real or personal property (located anywhere) if the exchange would have been community property if had been domiciled here when acquired.
Order of Death for Quasi Community Property
While husband and wife are alive, acquiring spouse owns 100%
If acquiring spouse dies first, non-acquiring spouse gets 50%
If non-acquiring spouse dies first, acquiring spouse keeps 100%
When acquiring spouse transfers away quasi community property during marriage
Result: during lifetime, non-acquiring spouse gets nothing because they never had any rights, but if they satisfy all 4 elements they get 50% back:
(1) acquiring spouse (D) died first;
(2) acquiring spouse died domiciled in CA;
(3) acquiring spouse transferred property to a third person without consideration and without spouse's consent;
(4) transfer was one of the following:
a. D retained right to possession (TIC), enjoyment, or income from property.
b. D retained power to revoke, consume, invade, or dispose of property.
c. D was JT w/ ROS with third party.
When does Surviving Spouse get 100% of Separate Property in Intestacy
If decedent left no surviving issue, parent, brother, sister, or issue of a deceased brother or sister (niece or nephew).
When does Surviving Spouse get 50% of Separate Property in Intestacy
If decedent left:
(1) only one child or issue of one deceased child; or
(2) no issue but left a parent or parents or their issue or the issue of one of them.
When does Surviving Spouse get 33% of Separate Property in Intestacy
If decedent left:
(1) more than one child;
(2) one child and the issue of one or more deceased children; or
(3) the issue of two or more deceased children.
Who gets Community Property in Intestacy
Surviving spouse gets decedent's half, meaning surviving spouse now has it all.
Who gets Quasi Community Property in Intestacy
Surviving spouse gets decedent's half, meaning surviving spouse now has it all.
After Distributing Spouse's Share in Intestacy (CPC 240: Modern Per Stirpes)
In dividing shares, begin with the first generation with a LIVING taker:
(1) number of shares = number of living people + dead people who left issue in the first generation with a living taker.
(2) do NOT count dead person with no issue.
If there is a spouse, they get all Community Property and Quasi Community Property, so this is only for separate property.
Adoption and Severance (CPC 6451)
(a) an adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless BOTH of the following requirements are satisfied:
(1) the natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person's birth (ie the natural parent and child live together or the couldn't because the guy died before the child was born, but the child had already been conceived); AND
(2) the adoption was by the spouse of either of the natural parents or after the death of either of the natural parents.
Elements of Equitable Adoption
(1) decedent intended to adopt child (invalid attempt to adopt or proof that decedent treated child as his legally adopted child);
(2) decedent acted consistently with that intent by forming a close and enduring family relationship.
Reason: allows property to go straight to heirs.
Only say "no thanks" -- don't direct where the property goes (then it's a taxable gift).
Treat as alive for purposes of dividing estate into shares, but pass the disclaimer's shares onto their issue.
if a person dies intestate, property the decedent gave to an heir prior to death will be treated as this only if:
(1) decedent declares in contemporaneous writing that it is an advancement or that its value is to be deducted from the heir's shares; OR
(2) heir acknowledges in writing at any time.
Calculated by hotchpot
If advancement is larger than your intestate share, just keep advancement.
If advancement is smaller, do hotchpot.
Presumption that advancement does not count against heirs (you must specify if you want it to count against them).
A subsequent will overrides advancement (if will does not mention prior advancement, it is assumed to be intentional omission, which voids advancement).
Add the advancement to the total estate, divide by number of inheritors, then take away the advancement amount from the guy who got the advance.
If Recipient of Advancement Dies
If recipient of the property advanced fails to survive the decedent, the property is NOT taken into account in computing the intestate share of the recipient's issue UNLESS the declaration or acknowledgment provides otherwise.
Law prohibiting a murderer from inheriting from his or her victim.
Only way the killer keeps is through a joint tenancy.
What we Need for a Valid Will (CPC 6110)
(a) In Writing
- don't allow for oral wills
(b) Signed By
(1) the testator;
(2) in T's name by a person in T's presence and by T's direction; or
(3) a conservator pursuant to a court order (need facts for this... they will look to see if you gave everything to yourself, which the court frowns on)
(c) Witness Requirement (CPC 6110)
(1) will shall be witnessed by being signed, during T's lifetime, by at least 2 persons each of whom (A) being present at the same time, saw (i) T sign the will, OR (ii) acknowledgment of the signature, OR (iii) acknowledge the will
(2) OR proponent of will proves by clear and convincing evidence that, at the time T signed the will, T intended it to be T's will.
3 Kinds of Wills
(1) attested will
(2) holographic wills
(3) will is validly executed in another state (CPC 6113)
Attested Will (CPC 6110)
Typically signed by testator and at least 2 witnesses
Holographic Will (CPC 6111)
In T's handwriting and signed; usually no witnesses (if there are not problem in CA)
Will is Validly Executed in Another State (CPC 6113)
Ex: CO and ND law: will valid if signed and notarized (they only require one witness, but they must be a notary)
A written will is validly executed if its execution complies with any of the following (CPC 6113)
(a) attested will (CPC 6110) or holographic will (CPC 6111)...
(b) execution of the will complies with the law at the time of execution of the place where it is executed.
(c) execution of the will complies with the law of the place where at the time of execution or at the time of death the T is domiciled, has a place of abode, or is a national.
Revocation of a Will (CPC 6120)
Allowed if either:
(A) there is a subsequent will that complies with 6110, 6111, or 6113 OR
(B) there is a physical act that touches the words of the will, done by T, or by a 3rd party in T's presence and at T's direction.
Four Step Analysis for Revocation of a Will
1. Was there a valid revocation by physical act or a subsequent will?
2. Do any common law presumptions on revocation apply?
3. If there is a valid revocation, does dependent relative revocation apply?
4. If there is a valid revocation, does revival apply?
3 Ways to Revoke a Will
1. Physical Act
2. Subsequent Will
3. Operation of Law
Physical Act (Revoking a Will)
A will can be revoked by a (1) physical act that (2) touches the words of the will (3) with intent of revoking.
Can be by the testator or a third party in T's presence and at T's direction.
Physical act must touch the words (margin does not count).
But look for holographic revocation (writing cancelled in T's handwriting on will with T's signature is okay... this is because it was revocation by subsequent will, not revocation by physical act)
Cannot revoke a will by performing a physical act on a photocopy.
Holographic Wills (Revocation)
T can add, cross out, or change things.
T can make changes in own handwriting without re-signing will.
Contrast with attested wills, which require full attestation for changes.
Wills that are in testator's handwriting, signed by testator (whether or not witnessed).
Typically not witnessed. If they are witnessed bring them in through 6110, if not bring them in through 6111.
What is a "Will Like" Thing
1. Decedent's purpose was to make a posthumous gift.
2. Revoke another will.
3. Appoint an executor.
Holographic Will Requirements
2. signed by the testator
3. material provisions are in hands of testator
Subsequent valid will in compliance with 6110 or 6111 (revoking a will)
Can revoke entire will or just inconsistent parts
Operation of Law (revoking a will)
Testator must meet this sequence:
(1) will executed that provides for spouse or DP (T does not need to be married at time of execution)
(3) T dies without changing will (This also means T made no codicils / republications of will)
DO NOT use extrinsic evidence if this sequence is met
Former spouse is treated as having predeceased T
Common Law Presumptions v. CA Rules
On exam, focus on CA rules and mention how common law differs.
CA is anti-revival state (so don't revive unless there is evidence T wanted to revive).
A will that is not intended to stand alone (revises an earlier will).
Effect of Revocation of Codicil on Revival of Will (Common Law Presumptions v. CA Rules)
Common law: revocation of codicil does not revoke the original will.
CA: when codicil is revoked by physical act, first will is revoked in whole or in part, unless evident from circumstances that T wanted first will to take effect.
Effect of Revocation of Will on Codicils (Common Law Presumptions v. CA Rules)
Common law and CA: rebuttable presumption that revoking of will also revokes all its codicils (so if you revoke will 1, will 2 is also revoked).
Effect of not being able to find the Will (Common Law Presumptions v. CA Rules)
Common law: presumption of revocation by physical act (T intended to revoke) if:
(1) T's will was last in T's possession; and
(2) T was competent until death; and
(3) will cannot be found (so if you can't find the will but find a duplicate original, it still doesn't take effect because we presume he destroyed the original).
CA: same except if duplicate original is found then no presumption that destroyed by physical act (so duplicate original would take effect).
Effect of Will found after T's death with revoking marks / cross outs (Common Law Presumptions v. CA Rules)
Common law and CA: presumed to be partially revoked by T (presume that T made marks with intent to revoke) if:
(1) Will last in T's possession; and
(2) Will found with marks on it
a. so, only can revoke, cannot amend an attested will
b. BUT, if it's a holographic will, then if all in T's handwriting, T can make changes, additions, and deletions without re-signing
weak presumption that can easily be rebutted
Dependent Relative Revocation (DRR)
Makes a revocation of a former will ineffective if the testator made the revocation through execution of a new will, and that newly executed will is determined invalid.
2 Will Revival Scenario (CPC 6123(a))
Where a 2nd will which, had it remained effective at death, would have revoked the 1st will in whole or in part is thereafter revoked by acts, the 1st will is revoked in whole or in part unless it is evident from the circumstances of the revocation or by T's declarations...
2nd will revoked by a physical act --> 1st will remains revoked (thus goes intestacy) unless there is C&CE of intent to revive
- C&CE can be extrinsic: T's contemporaneous or subsequent declarations
3 Will Revival Scenario (CPC 6123(b))
Where a will which, had it remained effective at death, would have revoked the 1st will in whole or in part is thereafter revoked by a 3rd will, the 1st will is revoked in whole or in part except to the extent that it appears from the terms of the 3rd that T intended the 1st will to take effect.
1st will remains revoked unless third will demonstrates T's intent to revive it.
No extrinsic evidence allowed (can only read what is in third will).
Rationale: if going through the trouble of writing a will, T must intend for it to say what it does and would be clear about revival if that's what T wanted.
Four Doctrines Constitute the Will
(2) republication by codicil
(3) incorporation by reference and tchotchke
(4) acts of independent significance
All papers physically present at the time of execution that you intend to be your will are your will.
Allows a multi-page will to be a will and not just your signature page.
A will includes all papers (1) physically present at the time of execution; (2) that T intends to be part of will.
Usually an issue in 2 circumstances: (1) holography; or (2) fear of switcheroo.
Republication by Codicil
Executing codicil republishes the entire will as of the date of the codicil.
Rationale: codicil means T reviewed the will and agrees with it.
Check if codicil's witnesses are different from the original will - does this change an earlier interested witness analysis?
Important when sequence of events is an issue (ie divorce).
Incorporation by Reference
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
(2) in existence when the most recent will was executed;
(3) intent to incorporate (loose standard); and
(4) will sufficiently describes the writing to allow identification (loose standard).
Tchotchke Statute Elements
(1) Will refers to a writing;
(2) writing is dated and in T's handwriitng; OR T intends to include writing;
(3) writing describes items and devisees with reasonable certainty;
(4) tangible personal property (each less than 5k and total less than 25k... so if an item is over 5k, take it out and don't count it towards the 25k);
(5) NOT money.
Acts of Independent Significance
A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.
Trigger: when T's will says to look elsewhere to determine who inherits
Issue: was act an intentional attempt to change inheritance, or did it have independent significance?
Independent act = no testamentary significance.
If act was testamentary, statute does not apply, and traditional requirements apply.
Does T lack capacity to execute a valid will?
Must be 18+ and of sound mind.
Was T able to understand:
(1) that he was executing a will
(2) what his property was
(3) who his beneficiaries were
An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
(1) lacks capacity; or
(2) suffers from a mental disorder with symptoms including delusions or hallucinations --> individual devises property which, absent the delusions / hallucinations, the individual would not have done.
The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence.
SMOR Test (Undue Influence)
S: prove T was SUSCEPTIBLE to undue influence;
M: influencer had the MOTIVE to use UI;
O: influence had the OPPORTUNITY to use UI;
R: RESULT of UI appears in the will (basically causation - bad guy gets bequest he wouldn't have gotten otherwise).
The contestant must prove all of this.
We only use this test if influencer is in an arms length relationship with the testator (that just never happens).
If the person is in a confidential relationship with the testator, we use the CAP test.
California's Confidential Relationship Test (CAP Test for Undue Influence)
C: CONFIDENTIAL relationship (fiduciary, power of attorney, attorney-client, dominant subservient relationship / caretaker);
A: bad guy is ACTIVE in procuring the will (like in their saying things, nothing passive like waiting or driving to the office or just being there);
P: unduly PROFITED from the will (just getting more than you would in intestacy).S
Strategy for Challenging a Will (21380 / 21382)
To get all the points, you figure out if it's a donative transfer under 21380 and look at who's getting the bequest. Drafter? Relative within 3rd degree? Transcriber or relative?
(1) Must be a donative transfer.
- if named as an executor, or witness, or trustee, that is not a donative transfer.
(2) Who is recipient?
- Drafter (or relative / employee of drafter)?
- Fiduciary / transcriber (or relative / employee)?
- Care custodian (or relative / employee)?
(3) Next, can the person who got the bequest rebut the presumption of UI?
- some of these people can and some can't. Fiduciary transcriber and care custodian have opportunity to rebut, if you are the drafter who is getting the bequest or related, you cannot rebut.
- Your only hope is the exception under 21382 (or you got that certificate of independent review).
(1) a donative transfer to a person related within 4th degree to the transferor.
(2) any instrument drafted or transcribed by person related to T within 4th degree.
(3) donative transfer to govt or charity.
(4) donative transfer = $5k or less AND estate is $150k or more.
(5) outside of CA.
Plain Meaning Rule (4 corners of will)
Default rule for will construction.
Extrinsic evidence is allowed only if the will's meaning is unclear / ambiguous.
Must show that the language is reasonably susceptible to 2 or more meanings.
Exceptions to Plain Meaning Rule
1. common law equivocation
2. common law personal usage
3.common law false description
4. CA 6111.5 Catch-all
Common Law Equivocation (Exceptions to Plain Meaning Rule)
If more than one person fits description.
i.e. "to my niece Alicia" and there is more than one niece named Alicia
Common Law Personal Usage (Exceptions to Plain Meaning Rule)
If T uses a term in an idiosyncratic way (only applies to humans, not institutions).
Can offer evidence that T always used term that way.
i.e. "all property to mother" and T called wife mother
Common Law False Description (Exceptions to Plain Meaning Rule)
No person fully fits description.
Can offer evidence to approximate T's intent.
i.e. "to A at 10 main street" but now A lives somewhere else
CA 6111.5 Catch-All (Exceptions to Plain Meaning Rule)
Language reasonably susceptible to 2 or more meanings.
Exam: give specific name of exception if possible, but then if none apply, say CA statute says if language is reasonably susceptible to multiple meanings then extrinsic evidence is allowed.
Language clear demonstrates ambiguity on its face.
Common law: extrinsic evidence is not allowed.
Exam: distinguish between patent and latent ambiguity at common law (CA doesn't differentiate)
Language appears fine on its face, but facts show ambiguity.
Common law: extrinsic evidence allowed.
Exam: distinguish between patent and latent ambiguity at common law (CA doesn't differentiate)
Modern Law on Ambiguity
Extrinsic evidence is always allowed for ambiguous terms.
When do Lapse and Anti-Lapse Doctrines Apply
Applies to at death transfers: wills, revocable IV trusts, POD/TOD, and life insurance.
4 Lapse Scenarios
(1) Beneficiary dies before transferor;
(2) individual transferee is dead when instrument is executed;
(3) individual is treated as failing to survive the transferor;
(4) transferee fails to survive until a future time the instrument requires.
If Transferee dies before Transferor, 3 Scenarios Depending on Type of Request
(1) specific or general
(3) class gift
Specific or General (lapse / anti-lapse)
Common law: property goes into residue.
Anti-lapse: if transferee is T's kin or T's spouse's kin AND T leaves issue, property goes to issue, otherwise to residue.
- Gift to "spouse and her heirs" does not trigger anti-lapse because spouse is not kin.
Residue (lapse / anti-lapse)
Common law: property goes into intestacy.
- Modern trend: if multiple residuary beneficiaries, distribute dead transferee's share to other residual beneficiaries.
Anti-lapse: if transferee is to T's kin or T's spouse's kin and leaves issue, property goes to issue; otherwise to other residuary beneficiaries, then intestacy.
Class Gift (lapse / anti-lapse)
Common law: no lapse. Divide property among remaining class members.
- at CL, class was open until T's death and only then was class defined.
Anti-lapse: if transferee is T's or T's spouse's kin and leaves issue, property goes to issue; otherwise to remaining class members.
- if no issue or remaining class members, apply rule for general / specific or residue.
Class gift buster: named and numbered.
Class member who predeceases T remains a class member (and thus anti-lapse applies to his interest) UNLESS (dinner party rule): (1) transferee died before execution of the instrument AND (2) T knew transferee was dead when T executed instrument.
Dinner Party Rule (class gifts)
Class member who predeceases T remains a class member (and thus anti-lapse applies to his interest) unless:
(1) transferee died before execution of the instrument; and
(2) T knew transferee was dead when T executed instrument.
Class Gifts on Exam
Check for codicil: if T knew class member was dead when executing codicil, will is updated and that person is no longer in the class.
Analyzing Gift Types on Exam (Specific / General, Residue, Class Gifts)
Look for T's contrary intent, which trumps an anti-lapse analysis.
Ex: when T requires survival, anti-lapse does not apply.
Ademption General Rule
Only specific gifts adeem.
If a specific item is not there at T's death, then the beneficiary does not get it.
5 Ademption Scenarios
(1) Specific Gift;
(2) General Gift;
(3) Demonstrative Gift;
(4) Residue Gift;
(5) Class Gift.
Specific Gift (ademption)
Under modern law, look for intent to adeem.
If real property is destroyed:
common law: devisee does not get insurance check, which is personal property.
modern trend: devisee gets insurance check and real property.
If real property is taken by eminent domain:
common law: devisee gets remaining real property.
modern trend: devisee gets eminent domain money and remaining real property.
General Gift (ademption)
Item that can be bough on open market is general (i.e. public stock).
General gifts cannot adeem.
Demonstrative Gift (ademption)
Mix of general and specific, where T preferred a specific thing.
i.e. "$1k to A from sale of my house"
Common Law Identity Theory (ademption)
Do not care about intent, only that specific item is no longer there, so beneficiary does not get it.
CA Modern Trend (ademption)
Issue: did T get rid of property with intent that devisee not get it?
Mild presumption against ademption.
Property sold by conservator or agent with durable power of attorney for incapacitated T = no intent to adeem, so give devisee amount equal to net sale $.
Stock Splits (ademption)
Give devisee all of split stock.
Ademption by Satisfaction
Requirements: T makes contemporaneous writing acknowledging satisfaction OR devisee makes written acknowledgement at any time OR transfer of property given is the same property that is the subject of a specific gift to that person.
Ademption by Satisfaction vs Advancement
(1) satisfaction does count against heirs by default.
- applies to wills
- to rebut presumption, T must make contemporaneous statement in writing to the contrary
(2) advancement does not count against heirs by default.
- applies to intestacy
Exoneration of Liens (ademption)
Exam: lien always means mortgage.
Common law: devisee took property without mortgage, meaning estate had to pay off mortgage before devising property.
Modern trend: devisee takes property with mortgage.
When there are not enough assets in the estate to pay debts (tell her what CL will do and whether it would change in CA).
1. intestate assets
3. general property to non-relative
4. general property to relative
5. specific property to non-relative
6. specific property to relative
T's express intent controls, so apply default order only in absence of T's direction.
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