SS 1-4 starred terms thru

What is the general order of intestate succession under the UPC?

1. Surviving spouse; 2. Descendants; 3. Surviving parents; 4. Parents' issue (siblings/nieces/nephews); 5. Grandparents or their descendants; 6. Stepchildren (per UPC); 7. Escheat to the state.

What is the UPC rule regarding simultaneous death in the context of intestate succession?

A devisee must survive the decedent by at least 120 hours (5 days) to inherit; otherwise, they are treated as having predeceased the decedent.

• here, passes to recipient’s descendants by representation; if none, their share is redistributed among T's other surviving descendants.

In California, what happens to community property if a spouse dies testate?

decedent spouse can leave their half of the community property to anyone. The other half belongs to the surviving spouse. BUT, if decedent spouse’s will is silent on distribution of CP, surviving spouse inherits all CP

In California, what happens to separate property if a spouse dies intestate?

The surviving spouse inherits at least 1/3 of the separate property. But may be entitled to 1/2 or all depending on who else survives; if 2 or more kids, 1/3; if 1 kid, 1/2

3 methods of distribution

english per stirpes, modern per stirpes (per capita w rep), per capita at each generation

What is the 'Negative Will Exception' in probate law?

It allows a testator to expressly exclude or limit the right of an individual or an entire class to succeed to property that would otherwise pass through intestate succession.

FoD/☠️ hand PROS ✅

Incentive to Saving during lifetime; Encouraging Care and Comfort by potential beneficiaries (eg children); Social and Economic Stability (relieves state of burden of providing for ☠️'s kids); Maximization of Donor Happines

FoD/☠️ hand CONS ❌

Concentration of Wealth and Power; Dampening Beneficiary Productivity (no incentive to work if large inheritance); Social and Litigation Costs; "Cold and Numbing Influence" by ☠️ controlling the property of the living

De Facto Parentage rule (adoption)

UPC RULE; A doctrine where a parent-child relationship is recognized for inheritance purposes based on a functional bond and holding the child out as one's own, even without a formal adoption contract.

Under UPC § 2-705, what is the requirement for an adoptee to be included in a class gift to 'children' or 'issue' by a transferor who is NOT the adoptive parent? [this only applies to 3rd parties, not the adoptive parent]

• Parental Functions: Adopting parent (or relative/spouse) acted as a parent before the child turned 18.

• Prevented Intent: Parent intended to perform parental functions but was prevented (e.g., death); must be shown by C/C evidence

What is 'Equitable Adoption' (Adoption by Estoppel)?

MAJ/CA rule: requires an enforceable K to adopt bw natural and adoptive parents (or a court-appointed guardian if needed).

What is the rebuttable presumption for a 'posthumous child' in most states?

A child born within 280 days after the father's death is presumed to be a posthumous child with the same inheritance rights as a pre-death child.

what’s included in CP

includes all earnings of the spouses during the marriage and any property acquired from those earnings; NOT GIFTS RECEIVED BY EITHER SPOUSE DURING MARRIAGE!!!

what happens to Quasi-Community Property if T dies with a will?

T can leave 1/2 of the quasi-CP titled in their own name in will and 1/2 of the quasi-CP which is jointly titled (assuming there’s no right of survivorship in joint title; if there is, surviving spouse auto takes all jointly titled CP). They have no testamentary control over any quasi-CP titled in survivor’s name.

surviving spouse takes ½ of all QCP

what happens to Quasi-Community Property if T dies intestate?

Passes via IS! thus, all quasi-CP passes to the survivor, except for RP!

• QCP applies to personal property (movable property) brought into the CP state, and to real property located within CP state.

• RP outside of state → surviving spouse can take elective share

advancement vs satisfaction + rules (and satis for children!)

advancement = intestacy; gift given during lifetime

• lifetime gift is considered an advancement only when it is clearly established that the decedent intended the payment as an advancement.

• CA: only counts as advancement if signed writing

satisfaction = testate; gift given during lifetime but AFTER will executed

RULE: a lifetime gift to a child is presumed to satisfy (offset) that child’s testamentary gift.; otherwise, not deducted from devisees’ gift/share unless either of them have signed writing stating it was meant to be deducted

• CA adds 1) if will/trust specifies it and 2) if lifetime gift = same property described in the will

How is an advancement valued under UPC

It is valued either when the heir received the property or at the time of the decedent's death, whichever occurs first.

What happens to an advancement if the recipient heir dies before the decedent?

TRADITIONAL RULE: the amount of the gift is deducted from the shares of that recipient’s surviving descendants

MODERN RULE: descendants of the deceased heir receive their full share of the estate as if the lifetime gift never happened, unless the decedent clearly stated otherwise in a contemporaneous writing

posthumous child definition under Uniform Parentage Act (UPA) + window

PC = child who was conceived before, but born after, the death of a parent (typically the father)

WINDOW = child born within 300 days of the father's death is presumed to be a posthumous child.

guardian vs custodian vs conservator

guardian: no mgmt over property; ensure child’s well being

custodian: mngs property, but no ct supervision; turns it over when child of age

conservator: guardian of property; annual acct’s req + constant ct oversight; mngs property

• ALL are ct appointed

parental neglect rule

UPC RULE — bars a parent from inheriting from their child if there is clear and convincing evidence they could have lost parental rights due to neglect, abandonment, or nonsupport.

who can sign for Testator in CA?

Another person in the testator's presence and by the testator's direction, or a conservator acting pursuant to a specific court order .

witness presence umbrella

trad rule — line of sight rule

UPC rule — conscious presence rule

Remedies for defective will

HE (UPC rule); will still allowed if C/C evidence of T’s finality of intent

SUBSTANTIAL COMPLIANCE!!!

CA: will still ok if C/C evidence that T signed will and intended for it to be his will

harmless error rule for defective revocation of will

UPC RULE; C/C evidence of testator intent to revoke AND there is existence of subsequent writing

will revocation rule

intent to revoke AND revocation by physical act or subsequent instrument (codicil)

REVOCATION ALSO EXISTS BY OPERATION OF LAW!!!! (marriage, divorce, kids)

Does the physical destruction of a will automatically revoke its codicils?

Yes, unless there is evidence that the testator intended the codicil to operate independently.

remedies for defective will revocation

HE rule can possibly revoke if subsequent writing; if not, constructive trust may also be used

Why is it risky to rely on notations like 'null and void' on the back of a will for revocation?

MAJORITY RULE: Such notations often fail to meet the strict statutory requirements for physical acts of revocation (failure to touch the text of the will).

partial revocation by physical act umbrella

UPC — allows it

minority rule — DOESN’T allow; req subsequent writing

DRR Rule

if T revoked under mistaken belief of fact/law and new will/plan is defective, ct will undo the revocation if old will closer to T’s intent than intestacy

Revival (think multiple revocations) — Rules here

MAJORITY/UPC — intent based; if will 2 revokes will 1, will 1 revived only if T intends so

• If Will 2 (which fully replaced Will 1) is destroyed → The law assumes Will 1 remains revoked UNLESS the proponent must prove T intended to revive it.

• If Will 2 (which partially replaced will 1) is destroyed/revoked → The law assumes Will 1 restored; need proof that T didn’t want this to happen

• if Will 3 revokes Will 2, which had previously revoked Will 1 → Will 1 still revoked unless will 3 says will 1 is to remain effective

MINORITY

• Revival is only permitted if the testator re-executes the original will with the same formalities required for a valid will.

what are the 3 scenarios for revocation of a will by operation of law and what happens under each?

• Marriage: if premarital will, will still valid. but, some provs will be revoked/modified upon marriage to make sure omitted spouse gets intestate share UNLESS 1) intentionally omitted or 2) provided for elsewhere

• Divorce: upon divorce, all probate + nonprobate transfers to former spouse + their relatives revoked, UNLESS T expressly provides otherwise

• Children: will still valid, but child entitled to take what they wouldve received under IS UNLESS 1) intentionally omitted 2) provided for elsewhere, or 3) T had one or more children AND devised all or substantially all of the estate to the other parent

adopted child rules

adoption terminates the child’s rights to inherit from the natural parents unless the natural parents specifically provide for the child or unless the child is adopted by a new spouse of their natural parent (ie stepparent).

• consider UPC (de facto parentage) and equitable adoption

holographic will reqs

material provs + signature in T’s handwriting; FINALITY OF INTENT (intent to create will) and test capacity

disclaimer rule

disclaimer has to be in writing and it must be signed by the beneficiary who is disclaiming the interest.

once disclaimed, no tax liability UNLESS medicaid eligiblity will include it in ur assets even if u disclaimed it

mistake

• Mistake in Execution: Testator signs wrong document (e.g., draft); not probated because no intent it be the will.

• Mistake in Inducement: Testator is mistaken about a fact (e.g., thinks beneficiary is dead).

  • Relief: Traditionally denied unless mistake + intended disposition appear on the will’s face; modern CA allows extrinsic evidence to prove it. mistake and the testator’s actual intent.