Wills

Question 1

What is intestacy?

Answer 1

Default statutory scheme that applies if some dies without effectively disposing of their property through a will.

Question 2

How is separate property distributed?

Answer 2

1. All SP goes to spouse if NO issue or parents.
2. 1/2 of SP if one issue or parent
3. 1/3 of SP if more than one descendent.

Question 3

Can a putative spouse inherit?

Answer 3

Yes

Question 4

Survival requirements (common law vs. USDA vs. CA)

Answer 4

CL: preponderance of evidence that heir survived
USDA: clear and convincing evidence that heir survived by 120 HOURS (by will or intestacy)
CA: if spouses die simultaneously, 1/2 of CP goes to each estate. 120 hour rule ONLY applies to intestacy.

Question 5

How is death determined?

Answer 5

CL: cessation of heart and lungs
Modern: heart and lungs or brain function

Question 6

What happens if joint tenants die simultaneously?

Answer 6

1/2 goes to each estate. Remember, joint tenants CANNOT devise their interest through will because of right of survivorship, but they can convey during lifetime and sever the joint tenancy.

Question 7

What happens if an insured and beneficiary die simultaneously?

Answer 7

Proceeds go to INSURED’s estate (unless they are spouses, in which case, each gets 1/2).

Question 8

What is “issue”?

Answer 8

All lineal descendants, but excluding descendants of living lineal descendants.

Question 9

Creation of Valid Will

Answer 9

Testator must:

1. Be 18
2. Have capacity
3. Have Intent
4. Meet will formalities

WRITE THIS AT BEGINNING OF WILL ESSAYS!!!

Question 10

Formal requirements of a will?

Answer 10

1. In writing with testamentary intent
2. Signed by testator, or at his direction AND in his presence
3. 2 uninterested witnesses (who must know it’s a will, but don’t need to read it), who can sign anytime after will execution, but need to be present with testator at time he signs.

Question 11

What if testator doesn’t have 2 witnesses to sign?

Answer 11

Intent can be proven by clear and convincing evidence.

Question 12

What is the presumption with “interested” witnesses? Exceptions?

Answer 12

That will was product of fraud, duress, or coercion.

Exceptions:

1. If there are 2 other uninterested witnesses
2. If devise is made in fiduciary capacity.

Question 13

What is a holographic will and what are the requirements?

Answer 13

A holographic will is one written in testator’s handwriting and signed. Does NOT need to meet formal witness requirements.

NOTE: if a date is not present and there is doubt whether another will controls, holographic will is invalid to extent of inconsistencies.

Question 14

Compliance with will requirements (common law vs CA)

Answer 14

CL - strict compliance

CA - substantial compliance (but lack of signature is fatal)

Question 15

Undue influence (common law)

Answer 15

“SOUP”

1. Susceptible to influence
2. Opportunity by beneficiaries to influence
3. Unnatural disposition of property
4. Procured disposition.

Question 16

Undue influence (CA)

Answer 16

Excessive persuasion that overcomes free will and results in inequity

Question 17

When is fraud presumed?

Answer 17

If property transferred to:

1. Person who drafted will
2. Fiduciary who transcribed instrument
3. Caretaker during drafting or within 90 days
4. Cohabitant/employee of any of the above individuals.

Question 18

Exceptions to presumption of fraud

Answer 18

1. If beneficiary is blood relative or cohabitant
2. Property is $5,000 or less
3. Independent attorney reviews instrument

Question 19

Conflict of Laws

Answer 19

Will is valid if meets requirement in state where it’s EXECUTED or where testator is DOMICILED at time of will execution or death.

Question 20

Integration (what is it?)

Is extrinsic evidence allowed?

Answer 20

Papers become party of will if:
1. Present at time of execution
2. Intended to be part of will
(E.g., stapled together, folded together)
Extrinsic evidence is permitted

Question 21

Incorporation by reference

Answer 21

Writing OUTSIDE of will may be incorporated if:

1. Writing existed at time of will
2. Will shows intent to incorporate it
3. Sufficiently describes the writing

NOTE: outside doc does not need to be valid to incorporate

EX. If will says “I incorporate by reference a list of personal items in my safety deposit box”, but the list is dated AFTER the will, it CANNOT be incorporated (but see CA’s exceptions…)

Question 22

Incorporation by reference - limited tangible property (CA)

Answer 22

In CA, even if paper cannot be incorporated by reference because the paper existed after the date of the will, they may be admitted into probate if:

1. Identifies property not exceeding $5,000 each, or $25,000 total (NOTE: no real property, $, bank accounts, etc)
2. Referred to in will
3. Dated and signed, or in handwriting

Question 23

Acts of Independent Legal Significance

Answer 23

Will can dispose of property by referencing acts/events that have independent legal significance apart from will

Ex. paying employees based on performance, or paying unknown beneficiary based on marriage to kids (e.g., “to the man who is my niece’s spouse at time of my death”)

Question 24

Codicil

Answer 24

Amendment to existing will

MUST MEET SAME REQUIREMENTS AS WILL

Question 25

Revocation of codicil vs. revocation of will

Answer 25

Revocation of codicil leaves the will intact. Revocation of underlying will revokes BOTH will and codicil.

Question 26

What is the effect of a codicil on a will?

Answer 26

It REPUBLISHES the will as of date of codicil execution. NOTE: This could remedy prior issues with will that made it ineffective, like prior witness issues. NOTE 2: A codicil can be holographic and avoid the need for witnesses.

Question 27

What is a “pour-over” will?

Answer 27

A will which identifies a TRUST created by testator into which he can “pour over” his assets and avoid probate, IF LESS THAN $100,000. Reqs: 1. Trust identified in will. 2. Trust terms exist outside will. 3. Trust executed before or at time of will.

Question 28

How can a will be revoked?

Answer 28

1. Physical Act 2. Subsequent Will 3. Operation of Law

Question 29

Revocation by physical act

Answer 29

Can include destroying, burning, tearing, etc. Presumption: A destroyed will is presumed to be revoked.

Question 30

What if a duplicate will is destroyed and not the other one?

Answer 30

If there is intent to revoke, the will is revoked.

Question 31

If a beneficiary in a will is crossed out, what is the effect?

Answer 31

Beneficiary does not take under will and devise goes to RESIDUE, NOT ANOTHER BENEFICIARY.

Question 32

Revocation by subsequent will

Answer 32

A will or a part of a will is revoked by subsequent will which: 1. EXPRESSLY revokes, or 2. Impliedly revokes through inconsistencies.

Question 33

Revocation by operation of law

Answer 33

The law will revoke a devise in a will to accommodate an UNINTENTIONALLY omitted spouse or child.

Question 34

What happens if spouse is omitted from will?

Answer 34

1. Spouse will receive INTESTATE SHARE unless: A. Intentionally omitted. B. Provided for outside of will. C. Waived right in valid agreement (i.e. premarital agreement). If A made will and later met B (thus not mentioning her in will), whom he married, B is entitled to intestate share (1/2 CP/QCP, and SP not to exceed 1/2)

Question 35

What happens if child is omitted from will?

Answer 35

Child will receive INTESTATE SHARE if born/adopted AFTER will was created unless: 1. They were intentionally omitted. 2. They were provided for in lieu of will 3. If most of the estate went to the child’s other parent.

Question 36

What is Dependent Relative Revocation (DRR)?

Answer 36

The court will apply DRR if first will is revoked on mistaken belief that a substantially similar will or codicil would be effective, but is not effective at death. The court will simply disregard revocation of the first will.

Question 37

Can a will be revived after revocation?

Answer 37

Yes. If a will is revoked by physical act or subsequent will, the first will is revived if: 1. Subsequent will is revoked AND 2. Testator has intent to revive. NOTE: Extrinsic evidence is permitted to show intent to revive will destroyed by physical act.

Question 38

What are the classifications of testamentary gifts?

Answer 38

1. Specific - identifiable property 2. General - gift from general assets of property 3. Demonstrative - general gift that specifies property or fund from which gift is to be made 4. Residuary - what remains of estate after all gifts are satisfied and all debts are paid.

Question 39

What is ademption, what types exist, and to what class of gift does it apply?

Answer 39

Determines what happens if a gift is not in the estate’s possession. 1. Ademption by extinction - if item is not part of estate at time of death, gift is VOID. NOTE: Intent of testator is important. 2. Ademption by Satisfaction - a gift will be considered satisfied if: A. Will provides deduction for a lifetime gift B. There’s a written declaration that gift is satisfied C. The same property is given to beneficiary during lifetime.

Question 40

What is abatement? What is the order?

Answer 40

Abatement reduces gifts to beneficiaries to pay off estate debts. ORDER: 1. Property not disposed of in will 2. Residuary gifts 3. General gifts to nonrelatives 4. General gifts to relatives 5. Specific gifts to nonrelatives 6. Specific gifts to relatives

Question 41

What is exoneration?

Answer 41

Applies when gift is subject to encumbrance and will requires encumbrance be paid off so beneficiary can take it free and clear. 1. Abatement order applies 2. Other specific property CANNOT be used to exonerate property with a mortgage.

Question 42

Lapse vs. Anti-Lapse What is it? Which does CA adopt?

Answer 42

It refers to what happens if a beneficiary is dead at time of testator’s death. Lapse (traditional) - gift lapsed and fell into estate residue or by intestate succession Anti-Lapse (CA) - ISSUE of beneficiary take gift IF BENEFICIARY is RELATED to testator or testator’s spouse.

Question 43

Does anti-lapse apply to class gifts? Residuary gifts?

Answer 43

Applies to class gifts. Does NOT apply to residuary gifts IF OTHER BENEFICIARIES REMAIN.

Question 44

What are survivor rights?

Answer 44

1. Widow’s Election - allows widow to elect to take will amount OR statutory share (50% of CP/QCP) (e.g., if testator tried to devise more than 50% of CP or QCP.). NOTE, she cannot take BOTH. 2. Property Transfers - widow can require transferee to return obtain 1/2 of the proceeds if: A. Joint tenancy property B. Property in which decedent retained possession or right to collect income (Totten trust or payable on death bank account) C. Property in which decedent retain right to revoke or dispose of principal for his benefit (revocable trust)

Question 45

Bars to Succession

Answer 45

1. No Contest Clause - penalizes beneficiary for contesting will with no probable cause 2. Killers - can’t take under will or intestacy. Killers are treated as having PREDECEASED testator and lapse/anti-lapse rules DO NOT apply.

Question 46

What is per capita distribution?

Answer 46

1st generation with living takers EVENLY divides shares with non-living takers in that generation. The TOTAL of the non-living takers is then evenly distributed to the next living generation. NOTE: Used in CA if all issue are of EQUAL kinship (i.e., all members of that generation are still alive, or if the dead one didn’t leave issue).

Question 47

What is Modern Per Stirpes/Per Capita With Representation

Answer 47

If heirs are deceased and don’t leave issue, their share goes back into pot and is evenly distributed amongst remaining closest pairs. If they leave issue, their own share is evenly divided among their issue. NOTE: Used in CA if issue are of UNEQUAL degree of kinship (i.e., someone dead in first surviving generation leaves issue), or will doesn’t specify how shares should be divided.

Question 48

What is strict per stirpes?

Answer 48

Same as modern per stirpes, but distribution starts at first generation (whether alive or not)

Question 49

How are adopted children and step children treated?

Answer 49

Adopted - treated as natural children of adopting parents, but it SEVERS relationship with natural parents Step/foster - CANNOT take under intestate succession, UNLESS: 1. Relationship began as minor 2. Continued through life AND 3. There was a legal barrier which prevented adoption.

Question 51

Paternity

Answer 51

Presumption arises if father holds out child as his own, or so states in writing. Also, if child is born within 300 days of termination of marriage.