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Community Property, Wills, & Trusts
Terms in this set (103)
Name property acquired during marriage that is a spouse's SP
1. Property received by gift, bequest, devise, or descent
2. Rents, issues, and profits of SP acquired before or during marriage; and
3. property acquired in exchange for separate property
Note; increases to SP are generally SP, and increases to CP are generally CP.
Personal Injury Recovery Against Third-Party Tortfeasors
- If a CoA arises during marriage, any recovery is CP.
- A CoA arises when the injury is inflicted
-A CoA that arises after separation is the injured spouse's SP but the injured spouse must reimburse the community or the other spouse's separate estate for any expenses paid on account of the injury.
- At divorce, community estate personal injury damages will be awarded entirely to the injured spouse unless the interests of justice require otherwise.
Personal Injury Recovery Against Other Spouse
This is always the injured spouse's SP
Unvested as well as vested retirement pensions are CP to the extent that the right to benefits was earned during marriage. It is immaterial that benefits are in fact received after divorce.
Courts apply a "time rule" to apportion the separate and community interests of a pension earned both during and after marriage.
Effect of Death on Pension Interest
- A spouse's ownership interest in a pension earned during marriage is not terminated by the death of either spouse. Thus, unless otherwise prohibited by law, a spouse is entitled to her share of any remaining benefits if the other spouse dies first, and she has testamentary power over her share of any continuing benefits should she die first.
-Note: federal law (like ERISA) would preempt CA law.
When pensionable spouse eligible to retire but does not
when the pensionable spouse is eligible to retire but does not, the divorce court may order a private employer to pay the nonemployee-spouse her share of benefits as though the worker had in fact retired. The worker himself may be ordered to pay if he has a public employer.
Disability Pay and Worker's Compensation
- To the extent that disability pay and workers' compensation are intended to replace marital earnings, they are CP.
- To the extent that they are intended to replace separate postdivorce earnings, they are SP.
- It is immaterial that the right to receive benefits may have been earned during marriage.
- Severance pay is generally understood to replace a worker's earnings until she is able to find a new job.
- To the extent severance pay replaces post-separation lost wages, the severance pay should be treated as separate property.
- To the extent severance pay replaces marital wages, the severance pay should be treated as community property.
- A stock option gives an employee an option to purchase shares of the company's stock at a set price on a certain date in the future.
-Typically, these options are not vested and the employee must be employed by the company when the options become exercisable.
-A stock option is a form of compensation and if it becomes exercisable (vests) during marriage, it is CP.
-If it is awarded during marriage but is not exercisable until the marital community has ended, the portion considered CP is determined by whether it is characterized as compensation for past services, future services, or both.
Business and Professional Goodwill
To the extent that goodwill is earned during marriage, CA treats it as CP. Courts generally use one of two valuation techniques: market sales valuation or capitalization of past excess earnings.
Education and Training - Right of Reimbursement
- Education and training acquired during marriage are not treated as divisible property.
- But at divorce, unless the parties sign an agreement to the contrary, there is an equitable right of reimbursement, with interest, to the community when: (1) community funds are used either to pay for education or training or to repay a loan related thereto, and (2) education or training substantially enhances the earning capacity of the party.
- Loans still outstanding at divorce are assigned solely to the educated spouse.
Education and Training - Equitable Defenses to Reimbursement
- Equitable defenses to reimbursement duty include: (1) the community has already substantially benefited from education or training (like you got the education more than 10 years ago); (2) the other spouse has received community-funded education; and (3) the need for spousal support is reduced as a result of education or training
Term Life Insurance
- Has no cash value and the premium covers only the risk of death.
- When the premium period expires, there is nothing left except the right to insure for another premium period.
-The estate that paid the most recent premium is the owner of the policy or in the event of the insured's death, the policy proceeds
Whole Life Insurance
- To the extent that a policy has a current cash value, that cash value is CP in proportion to the percentage of premiums paid by the community
- When an insured dies, the cash value of the policy before his death should be apportioned according to the premiums paid by each state, and ownership of the remainder of the proceeds (the portion attributable to term insurance) should be determined by the final premium rule.
Property Insurance Proceeds
- Might take either the character of the insured property or of the insurance premiums.
- Several cases have held that even though CP was used to pay the premiums on a policy insuring one spouse's separate property, insurance proceeds arising from casualty to that property nevertheless remain separate property, but the community may have a claim for reimbursement.
How to Overcome CP Presumption When Asset Acquired During Marriage
1. Statutory facts (the asset was acquired by gift, bequest, devise, or descent or was rent or income from SP)
2. The parties agreed that the property would not be CP
3. Both spouses knowingly took title jointly in a form other than CP
4. One spouse took title in a form that evidences a gift to the other spouse; or
5. The purchase funds are traced to an SP source, in which case the separate estate in an owner in proportion to its contribution to the purchase price
- Note: If one spouse takes property without the knowledge and consent of the other spouse, this does not overcome the CP presumption.
Requirements for Premarital Agreements Altering Character of Property
1. Statute of Frauds writing requirement. However, an oral premarital agreement may be enforced when: (1) the executory promise was fully executed; or (2) the promisor is estopped to assert the SoF (the promisee has relied to her determent on the oral premarital agreement)
What can premarital agreements regulate and what can they not regulate?
- Premarital agreements are enforceable when they limit or waive property rights
- Agreements limiting or waiving spousal support are not per se unenforceable.
- Agreements cannot promote divorce and must be voluntary. Also unenforceable if (1) it was unconscionable when executed, and (2) the burdened party did not have adequate disclosure of the other party's wealth.
- Must be in writing, expressly declaring that a change in the ownership of property is being made and be consented to by the spouse whose interest is adversely affected.
- Extrinsic evidence is not admissible to interpret the meaning of a transmutation agreement
- A description of the character of property in an inter vivos trust is not binding, absent an unambiguous indication that transmutation was intended.
Tracing Methods for Commingled Funds
1. Exhaustion Method - at the time the asset was purchased, community funds in the account had already been exhausted by payment of family expenses and therefore the asset must have been purchased with separate funds
2. Direct Tracing - at the time the asset was purchased, there were separate funds available, and the SP proponent intended to use those separate funds to purchase an SP asset
How to Apportion Business Profits
- One spouse may bring an SP business into the marriage and devote community labor to the business. At divorce or death the business may have appreciated and assets may have been purchased with business profits.
1. Van Camp Accounting - the manager's services are valued at the going market salary. The family expenses that were paid from business earnings are then subtracted. The remainder, if any, represents the CP of the business. The rest of the business is SP.
2. Pereira Accounting - SP consists of the manager's separate capital plus a fair rate of return thereon (ex: !0% of principal x 10 yrs). The remainder is CP
-Note: both apply to investments brought into the marriage
When to use Van Camp or Perira Accounting
- Pereira should generally be used when the management of the spouse was the primary cause of the growth or productivity of the separate business.
-Van Camp should generally be used when the character of the separate business is largely responsible for its growth or productivity/
Community Funds Used to Improve Own SP
- When a spouse uses community funds to improve his own SP, no gift is presumed. The community is entitled to either reimbursement of the cost of the improvement or the amount by which the improvement increased the value of the realty, whichever is greater.
Community Funds Used to Improve Other Spouse's SP
- Traditionally, a gift has been presumed when a spouse uses CP to improve the other spouse's SP.
- The presumption can be overcome only by evidence of an agreement to reimburse.
- The precise terms of the agreement will control the amount of reimbursement. If no amount is specified, the amount will be the cost of improvement.
Spouse's Separate Property Used to Acquire or Improve Other Spouse's Separate Property
A spouse who makes a separate property contribution to the acquisition or improvement of the other spouse's separate property is entitled to reimbursement, without interest or appreciation of his separate property contribution
Always Write On Essay
California is a community property state. There is a community presumption that all assets are acquired during the marriage are presumptively community property. There are areas of specific property, such as property acquired by either spouse before marriage, acquired during marriage by gift, will or inheritance, and property acquired during marriage with the expenditure of separate funds.
The characterization of an asset depends on three factors: 1) the source of the item, 2) actions of the parties that may have altered the character of an item, and 3) any statutory presumptions affecting the time.
Separate Property (statutory definition)
-property owned by either spouse before marriage
-property acquired during marriage by gift, will, or inheritance
-property acquired during marriage with the expenditure of separate funds (source rule or tracing)
Community Property (statutory definition)
property other than separate property, acquired by either spouse during marriage. the most common examples are i) salary or wages earned by either spouse, and ii) income from community assets
All assets acquired during marriage are presumptively CP. Absent a showing of parties agreement or that title was taken in a form that overcomes the CP, the burden of proof that a particular asset is separate property is on the party so contending.
When does the community end?
When there is a permanent separation and INTENT not to resume the marital relation. Only need intent by 1 party.
What happens to CP not divided on divorce?
Court retains continuing jurisdiction to award CP that was not previously adjudicated and on motion the omitted or unadjudicated CP will be divided 50-50 unless the court finds that "the interests of justice require an unequal division."
How must CP be divided on divorce? and talk about economic circumstances exception
Absent a property settlement agreement, all CP must be divided equally. disparity in EP can only be considered for spousal support and child support.
Economic Circumstances Exception: can have non-pro rata division, giving particular asset wholly to one spouse and cash out other spouse with other assets (with each spouse getting 50% of total value):
1) Family residence: FR and loss of family home would uproot couple's minor children--then award it to one spouse
2) Closely held corporation: all 100 shares of CLC are CP, W is ceo of corporation.
3) pension: award all of H's pension to H, other assets to W, so they can go their separate ways.
Determining Character of Credit or Purchase Money Loan - Intent of Lender
- Credit acquired by one spouse during marriage is presumptively community credit.
-To demonstrate that load proceeds or credit purchases are his SP, the borrowing spouse must demonstrate that the lender primarily relied on the borrower's SP in granting the loan or extending the credit.
- No apportionment is made of the loan itself. Loan proceeds or credit are either CP or SP, but apportionment may be made of the asset.
- "personal credit" of either spouse during marriage is CP, as it is based on earning capacity
Setting Aside CP Distribution Provisions - Code of Civil Procedure Section 473(b)
- A court my relieve a party from a judgment taken against him through his mistake or inadvertence, surprise, or excusable neglect.
-Extrinsic fraud, extrinsic mistake or duress are sufficient to relieve a party from a judgment even after the 6 month period expires, but intrinsic fraud or mistake is not.
-Other conditions that prevented a party from presenting his case in court have also sufficed to set aside a judgment after the 6 month period
Setting Aside CP Distribution Provisions - Family Code Relief
- Both varieties of fraud and mistake are sufficient to relieve a party from judgment under the Family Code
- A motion based on actual fraud, perjury, or mistake (either mutual or unilateral) must be brought within one year after the complaining party did or should have discovered the fraud or perjury or within one year after entry of judgment.
- A motion for duress or motion based on mental incapacity must be brought within two years after the date of entry of judgment
- A motion based on failure to comply with disclosure requirements may be brought within one year of the date on which the complaining party either discovered or should have discovered the failure to comply.
- The court may impose money sanctions for nondisclosure
Unauthorized Inter Vivos Gifts of CP
One spouse may not make an inter vivos gift of CP without written consent of the other spouse. But at the death of the donor spouse, the unauthorized inter vivos gift if it has not been voided by the non-consenting spouse during the donor spouse's lifetime, is treaded as a valid testamentary transfer of the donor's one-half interest.
Designation of Third-Party Insurance Beneficiary
A community-funded life insurance policy is CP. The deceased insured spouse is deemed to have made a testamentary transfer to a third-party beneficiary (other than his spouse) of his one-half interest in CP insurance proceeds.
Survivor's Duty to Elect
- A testator may insert a clause in his will stating that his surviving spouse must either elect to take under the terms of the will or assert her CP ownership rights
- When there is no explicit election clause, a surviving spouse may assert both her CP rights and her rights under the decedent spouse's will as long as this behavior would not upset the decedent's testamentary plan
-The surviving spouse must elect between the will and her CP rights when the decedent's will attempts to pass the survivor's one half interest in CP
What happens to a decedent's SP?
- An intestate decedent's SP passes in whole or in part to the surviving spouse according to three statutory formulas:
(1) all to the surviving spouse when the decedent has left no surviving issue, parent, brother, sister, or issue of a deceased brother or sister;
(2) one half to the surviving spouse when the decedent leaves only one child or issue of a deceased child, or no issue, but a parent or parents, or their issue, or issue of either of them; or
(3) one-third to the surviving spouse when the decedent leaves more than one living child, or one living child and issue of one or more deceased children, or issue of two or more deceased children.
Quasi-Community Property (QCP)
- Is property acquired by either spouse that would have been CP had the spouse been domiciled in CA at the time of acquisition.
- QCP retains its SP nature when the parties become domiciled in CA.
- The QCP label only becomes significant at divorce or death
QCP at divorce
- QCP is treated exactly as though it were CP. Property may be treated as QCP even though one spouse is not domiciled in CA
QCP at death
The survivor has 1/2 interest in decedent's QCP. Decedent has no rights in the survivor's QCP.
QCP at death - Survivor May Restore Certain Illusory Transfers
- if prior to death, a decedent who died domiciled in CA transferred his QCP to a third party for less than substantial consideration and without his surviving spouse's consent, the surviving spouse may compel the third party to restore one-half the property (or its value) to decedent's estate if, at the time of his death, decedent reserved any of the following rights in the property: (1) right to income; (2) power to revoke, consume, invade, or dispose of principal for decedent's own benefit; or (3) right of survivorship
QCP During Ongoing Marriage
A creditor may reach one spouse's QCP to satisfy a debt incurred by the other spouse. This is questionable constitutionally. With the exception of debt collection, QCP is still treated as the acquiring spouse's SP during marriage.
After a divorce, a creditor cannot reach CP awarded to a spouse unless that spouse
incurred the debt or was assigned the debt by the court
Property acquired while couple was domiciled in a non-community property state
- If it would have been classified as CP had it been acquired under the same circumstances in CA, it is quasi CP.
- If its land and divorce, even though CA has no jurisdiction over the land, it will award assets of equal value to the other spouse.
- If its land and death, for purposes of division of land, state law controls where land is.
Quasi CP system gives protection only if the non-acquiring spouse
survives the acquiring spouse. If original state was not a CP state, then non acquiring spouse loses interest in property. If other state was a CP state, then non acquiring spouse is treated as true CP not quasi CP.
Putative Spouse Rule
A putative spouse is not lawfully married, but has a subjective good faith belief that she is lawfully married. All property that would be CP or QCP is labeled quasi-marital property, and has the same right to the property as CP or QCP.
Once she learns her marriage is invalid she no longer is a putative spouse or has property rights of a putative spouse. Putative spouse status also extends to a person in good faith belief who believes that CA has domestic partnership was validly registered although registration never occurred.
Where only one partner believes in good faith, whether the other non-good faith spouse can make a claim for the quasi-martial property is unclear. The court may allow each spouse to take ½ of QMP.
Requirements for a lawful marriage
(1) capacity (2) and performance of legal procedures (witness of the marriage that is licensed or registered). CA does not recognize common law marriage.
Putative Spouse - Estoppel
CA courts have applied the doctrine of estoppel to deny a lawful marriage when one spouse has assured the other spouse that they are lawfully marriage.
Tracing Bank Account - Commingled Funds
Joint bank accounts titled in both names are presumed community. General preemptions, CP funds are presumed used for CP expenses. Where there are no CP funds, SP funds spent on the community are gift to the community. But can rebut by tracing.
To the extent that CP is uses to pay down the principle then the CP gets an ownership interest in the appreciation. (Marriage of Moore)
Management and Control - SP
each spouse has exclusive management and control over his SP. QCP is SP for purposes of management and control.
Management and Control - CP
each spouse has equal management and control of CP. Either spouse acting alone may buy, sell, spend, encumber the CP.
Management and Control - Real Property
both spouses must join in executing any instrument where community property is sold, conveyed, or leased for more than 1 year. Where title is in one name and spouse misrepresents marital status, must bring an action within 1 year to void. Transfers to good faith purchasers are presumed valid, but this can be overcome by showing no consent or participation (void conveyance and return purchase price).
Management and Control - Personal Property
a dwelling, or CP furniture or clothing of a spouse or minor child may not be transferred without written consent of the other spouse. A spouse that is operating a business interest in a business that is all or substantially all community property has primary management and control, and thus may act alone in tractions but must give notice to other spouse of sale, lease, or exchange of personal property used in operation of the business.
Management and Control - Separate Name Bank Accounts
the earnings of a non-debtor spouse are not liable for debtor's premarital obligations where earnings are held in separate bank account, which debtor has no right to withdraw, and no commingling has taken place.
Gifts of CP require written consent
a spouse may not make a gift of community personal property without the written consent of the other spouse. During the life time, the non-consenting spouse may revoke the gift, or on death may recover her ½ interest from the estate.
Fiduciary Duty and Mismanagement
In transactions spouses are subject to fiduciary rules that govern confidential relationships. Each spouse must act in the highest good faith and fair dealing with respect to the other spouse in management and control of CP. Where spouses are transacting with each other there is a presumption of undue influence that arises when one spouse gains and advantage in the transaction. The spouse that got the benefit has the burden.
Fiduciary Duty and Mismanagement - Duty of Managing Spouse
1) Duty to account (provide information concerning CP for other spouse to make decisions) (2) Duty to Secure Consent (duty to get consent from non-managing spouse before making a gift of CP, encumbering community property or selling cp including family home, furniture, and clothing, and lease, rent, sell real property for over 1 year.
Fiduciary Duty and Mismanagement- Breach by Managing Spouse
the non-managing spouse has a claim against managing spouse if it results in a substantial impairment of the non-managing spouse's interests.
Creditor's Rights - Encumbering CP
*depends on when the debt is incurred
- When spouses encumber CP to pay a debt incurred by one spouse, then the other person's SP is not liable for the debt.
Creditor's Rights - Tort Liability
a person is not personally liable for her spouse's torts. If the tort occurred by the married person was performing an act to benefit the community, liability is first satisfied from CP and then SP of the married person. If tort occurred not for the benefit of the community, the liability satisfied from SP the second from CP.
Creditor's Rights - Hospital Bill Debt
Even after separation, each spouse remains liable for debt incurred by the other spouse for the common necessaries of life (maybe even their SP). It depends on how the divorce court assigns the debt, if the not hurt spouse will be personally liable with their share of CP or SP.
Creditor's Rights - Child/Spousal Support Obligations
a spouse's child support obligation from prior relationship is treated as debt incurred before the marriage. All of the CP, QMP, and SP are liable for debt before marriage. The other spouse's SP is not liable. The CP will not be liable if in separate bank account exception. If SP was available then CP that was applied has right to reimbursement.
A spouse may seek reimbursement where (1) CP is applied to satisfy child/spousal support claim arising out of prior relationship and the debtor had SP available to pay, (2) when one spouses SP was applied to the debts of the other spouse for necessaries and the debtor has SP or CP available.
Federal Law Preemption
ERISA preempts so that a predeceasing spouse cannot make a testamentary transfer of her CP interest in RRISA pension.
Intestate Succession of Property Not Passing to Surviving Spouse/Domestic Partner
Passes to issue. If none, to parents. If none to descendants of parents (siblings or their descendants). If none to grandparents or their issue. If none to issue of predeceased spouse or domestic partner. If none to decedent's next of kin. If none to parents of predeceased spouse or domestic partner or their issue. If none it escheats to the state.
Posthumously Conceived Child (Intestate Succession)
A child of the decedent conceived and born after the decedent's death is treated as if she had been born during the decedent's lifetime after execution of all of the decedent's testamentary instruments (will or trust), if the child or her representative proves by clear or convincing evidence: (1) the decedent authorized, in a signed and dated writing, the use of his genetic material; (2) the person designated to control the use of the genetic material gave written notice, within four months of the issuance of the decedent's death certificate, to the person who has control of the disposition of the decedent's property; and (3) the child was conceived and in utero using the decedent's genetic material within two years of the issuance of the decedent's death certificate
Adopted Children (Intestate Succession)
For purposes of succession, an adopted child inherits from and through the adoptive parents and their relatives, and they inherit from her. The adopted person generally does not inherit from her natural parents or their relatives, and they do not inherit from her. Exceptions: when adoption is by spouse/domestic partner of either natural parent or after the death of either natural parent or the surviving spouse/domestic partner of that parent
Stepchildren and Foster Children (Intestate Succession)
Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent
Adoption by Estoppel (Intestate Succession)
Permits a child to inherit from or through a stepparent or foster parent when legal custody of a child is gained under an (unfulfilled) agreement to adopt him or when foster parents confused a guardianship proceeding with an adoption proceeding
What are the three ways to establish a non-marital child relationship to the other parent [father]?
1) Established by presumption: (a) presumed parent and natural mother were married and the child was born during the marriage or within 300 days after termination of the marriage; (b) presumed parent and natural mother attempted to lawfully marry before the child's birth, and the child was born during the attempted marriage or within 300 days thereafter; (c) presumed parent and natural mother attempted to lawfully marry after the child's birth, and the parent is named a parent on the birth certificate or the parent promises to pay child support (or is ordered to do so); or (d) presumed parent received the child into his home and held him out as his natural child
2) Established by holding out child as own: clear and convincing evidence that the parent has openly held out child as his own → requires unconcealed affirmation of parentage in open view
3) Established by judgment of parentage: parentage must be proved by clear and convincing evidence
When Parent Prohibited from Inheriting
If (1) the parent did not acknowledge the child; (2) the parent's parental rights were terminated and not judicially reestablished; or (3) the parent left the child during the child's minority, with the intent to abandon the child, for at least seven consecutive years before the child reached the age of majority, and during that time, the parent did not support or communicate with the child
-If the right of a beneficiary to succeed to any interest in the property is conditional upon surviving another person and it cannot be established by clear and convincing evidence that the beneficiary survived the other person, the beneficiary is deemed to have predeceased the other person
-A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purposes of intestate succession
Procedure for Disclaimer
The disclaimer must: (1) be in writing, (2) be signed by the disclaimant, (3) identify the decedent, (4) describe the interest being disclaimed, and (5) state that there is a disclaimer and the extent of it
-Must be filed within a reasonable time after the heir/beneficiary learns of the interest (deemed reasonable if filed within 9 months after the later of the death of decedent or the date the interest becomes indefeasibly vested)
Advancements of Intestate Share
An advancement is a lifetime gift made to an heir with the intent that the gift be applied against any share the heir inherits from the donor's estate. For an inter vivos gift to be an advancement toward an heir's intestate share, it must be stated to be such in writing. Doctrine of advancements does not apply if the decedent leaves a will
Satisfaction of Legacies
Testamentary gift may be satisfied by inter vivos transfer from testator
Only applies if testator provides for satisfaction in will or recipient acknowledges in writing
Prohibited Beneficiaries: Slayers
-A person who feloniously and intentionally kills the decedent is not entitled to: any property or benefit under the will, any property under the intestate succession statute or the statutory provisions for protection of the decedent's family, any property covered by the statutory provision relating to gifts in view of impending death, or any of the decedent's quasi-community property that the killer would otherwise acquire on the decedent's death.
**Anti-lapse statute inapplicable
-Joint ownership (joint tenancy, joint bank accounts, CP with right of survivorship) severs decedent's interest and killer loses benefits of right of survivorship
Prohibited Beneficiaries: Elder/Dependent Abuse or Neglect
Any person who commits physical abuse, neglect, or fiduciary abuse of an elder or dependent adult is prevented from receiving property from the victim's estate. Abuser deemed to have predeceased decedent
Prohibited Beneficiaries: Aliens
At common law, aliens were denied the right to inherit real property. In CA, as in most states, there are no restrictions on aliens taking property from CA decedents
Parol evidence is not admissible to show that a will absolute on its fact was intended to be conditional. Parol evidence may be admitted to show that the instrument was not meant to have any effect at all (sham will) but not to show conditions. It is often difficult to distinguish a genuine condition versus motive to make the will, so you should argue both ways on an exam
**For exam purposes, remember that a conditional codicil republishes the will as of the date of execution of the codicil even if the condition does not occur
Execution of Attested Wills
(i) the will must be in writing; (ii) the will must be signed by the testator; (iii) the testator must sign or acknowledge the will or his signature in the joint presence of at least two witnesses; (iv) the two witnesses must sign the will during the testator's lifetime; and (v) the witnesses must understand that the instrument being witnessed in the testator's will
A witness with a beneficial interest is competent to testify, but the devise raises the presumption that it was procured by duress, menace, fraud, or undue influence. However, if there are at least two other disinterested subscribing witnesses, the witness-beneficiary is supernumerary and may take the devise. If the devise fails because a witness fails to rebut the presumption, the witness gets such proportion of the devise as does not exceed the share of the estate that would be distributed to the witness if the will were not established (i.e., intestate share)
Holographic wills are permitted in CA if the signature and material provisions of the will are in the testators own handwriting
-Testamentary capacity and intent are required
-Doesn't need signature at tend, can be found in opening handwriting
CA does not recognize oral wills for any purpose
California Statutory Will
A statutory will is a state-sponsored will form allowing a testator to execute a will without an attorney. The same rules generally apply, but the formalities required for execution are different. To execute a statutory will: (1) the testator must complete the blanks and sign the will; (2) each witness must observe the testator's signing; and (3) each witness must sign in the presence of the testator
Modifies a previously executed will and must itself be executed with the same formalities.
-Can be admitted to probate by itself
-Republication by codicil → treated as having been executed on the date of the last codicil
Incorporation by Reference
A document may be incorporated into the will by reference so that it is considered a part of the will if: (1) the document was in existence at the time the will was executed; (2) it was sufficiently described in the will so that its identification is clear; and (3) there was satisfactory proof that the proffered document is the document described in the will
California Exception to Requirement that the Document be in Existence at the Time the Will was Executed
A decedent may dispose of items of tangible personal property in a writing that does not comply with the requirements for incorporation by reference if: (1) an unrevoked will refers to the writing; (2) the writing is dated and is either in the testator's handwriting or signed by the testator; and (3) the writing describes the items and the recipients with reasonable certainty
-Total value of tangible property may not exceed $25,000
-Single item cannot exceed $5,000 in value
California: Uniform Testamentary Additions to Trust Act
Permits the pour-over of estate assets to an inter vivos trust as amended on the testator's death (or after death) if the trust is identified in the testator's will and its terms are set forth in a written instrument (other than a will) executed before, concurrently with, or within 60 days after the execution of the testator's will. The trust may be amendable or revocable, and the settlor may be a trustee
Contracts to Make Wills
A contract to make (or not to revoke) a will, devise, or other instrument, or to die intestate, can be established only by one of the following: (1) provisions of a will or other instrument stating the material provisions of the contract; (2) an express reference in a will or other instrument to a contract and extrinsic evidence proving the contractual terms; (3) a writing signed by the decedent evidencing the contract; (4) clear and convincing evidence of an agreement between the decedent and the claimant, or a promise by the decedent to the claimant that is enforceable in equity; (5) clear and convincing evidence of an agreement between the decedent and another person for the claimant's benefit, or a promise by the decedent to another person for the claimant's benefit that is enforceable in equity. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
California, like most states, has a statute to protect children from being unintentionally omitted from their parent's will. In California, if a decedent fails to provide for a child born or adopted after the execution of the decedent's testamentary instruments (a will and/or a revocable trust), the child receives his intestate share of the decedent's property. This rule has been extended to cover a child who was alive when the testamentary instruments were executed but the testator either believed the child was dead or was unaware of his birth.
Appointment of Trustee
A trust needs a trustee to hold legal title, but a trust will never fail merely because a trustee refuses to serve. In such case, the court will simply appoint a new trustee. Until then, legal title will reside either in the settlor's estate or in the court itself.
Resignation of Trustee
Once a trustee has accepted the appointment, she cannot resign without permission of the court unless authorized by the trust terms or consent is given by the beneficiaries.
Termination of Trust by Beneficiaries
Beneficiaries may compel modification or termination only when all consent and the modification or termination will not impair any material trust purpose such as protecting a beneficiary from lack of ability to manage property. Thus, a spendthrift provision will preclude early termination of a trust even if all beneficiaries consent
Duties Owed to Beneficiaries
With a revocable trust, a trustee's duties are owed exclusively to the settlor. A trustee of an irrevocable trust owes her duties exclusively to the beneficiaries.
Liability to Beneficiaries
If a trustee commits a breach of trust, the beneficiaries may sue the trustee for the amount necessary to restore the trust property and distribution to what they would have been without the breach. This is called surcharge and the trustee is personally liable.
Duty to Administer Trust
The trustee has a duty to administer the trust in good faith and in a prudent manner, in accordance with the terms and purposes of the trust instrument.
Duty of Care - Prudence
A trustee must exercise that degree of care, skill, and caution that a reasonably prudent person would in managing her own property.
Duty of Loyalty and Impartiality
A trustee has a duty to administer the trust solely in the beneficiaries' interest, and if there is more than one beneficiary, the trustee must act impartially. A trustee cannot favor one beneficiary over another
- Provide that beneficiary may not voluntarily or involuntarily transfer his interest
-Not valid if settlor is also a beneficiary
-Dependents, government, those supplying necessities may be able to reach the protected interest.
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