Choice of Laws for Personal Property?
Personal property = decedent’s domicile
Choice of Laws for Real Property?
Real property = property’s domicile
CA Probate Code § 6113
CA Probate Code § 6113 - under CA law, a will is valid and admitted into probate if it:
(1) complies w/ CA law
(2) complies w/ law of state where executed; or
(3) complies w/ law of state where domiciled at execution
Choice of Laws overview
Personal property = decedent’s domicile
Real property = property’s domicile
CA Probate Code § 6113 - under CA law, a will is valid and admitted into probate if it:
(1) complies w/ CA law
(2) complies w/ law of state where executed; or
(3) complies w/ law of state where domiciled at execution
What types of Ks are there related to wills?
- Ks to make or not to revoke wills
- joint and mutual wills
- will substitutes
- remedies
Contracts to make or not to revoke wills
(1) Contract law governs
(2) Proof of Contract established by (if made after 1/31/2000)
- will/other instrument sets forth material provisions of K
- express reference to K in will/other instrument
- writing signed by decedent evidencing K; or
- clear and convincing evidence
• agreement between decedent and promisee
• agreement between decedent and 3d party for claimant’s benefit
(3) Enforceable upon decedent’s death, not on breach
exception: fraud
Joint & Mutual Wills
Definitions
• Joint wills = wills of 2+ ppl executed on same paper
• Mutual wills = separate wills by 2+ ppl that contain provisions for reciprocal benefits
• Joint & Mutual wills = wills of 2+ ppl executed on same paper that contain provisions for reciprocal benefits
No presumption of K to make or not to revoke will
- the execution of a joint/mutual/joint & mutual will DOES NOT create a presumption of a K to make or not to revoke will
Gifts Causa Mortis
Defintion = gift made in contemplation of death
Requirements:
(1) donor must fear impending or imminent death
(2) personal property only
(3) donative intent
(4) delivery
- actual
- symbolic
- constructive
(5) acceptance =
- conditional & revocable
- donor survives peril = revoked by operation of law
Totten Trust (Tentative Bank Account Trust
Definition = revocable trust composed of savings account, essentially a payable-on-death bank account
- named beneficiary receives the remainder of an account at the time of the trustee’s death
- the bank account depositor serves as trustee and retains full control of the money in the account during his/her lifetime
Revocable by
- withdrawal of funds;
- act manifesting intent to revoke; or
- contradictory will
Remedies for Breach of Will Contracts
(1) damages
(2) specific performance
(3) constructive trust = devisee would serve as the constructive trustee
