estates & trusts

Testate/Testator

Decedent dies with a will/the person who died w a will

Intestate

dying without a will

personal rep v. executor v. administrator

person vested with legal authority to marshal the decedent's assets, perform the payment of debts and taxes, & ultimately transfer title

-Executor: called this if appointed by decedent in will

• administrator if appointed by court if (usually where decedent died intestate)

Beneficiary

person designated to receive property in decedent's will (or trust)

devise

a gift of real property via a will

(recipient/beneficiary is a devisee)

Legatee

one who inherits personal property under a will

Probate

legal proceeding that is initiated when a person died wherein the court determines the validity of the decedent's will (if any)

• supervises payments of D's debts & taxes

• distribution of assets in will

OR will follow interstate succession if there is no will

Partial Intestacy

decedent leaves a will that disposes only part of the probate estate; part not in will passes by intestacy

community property

all real and personal property, wherever situated, which was acquired during a valid marriage, while domiciled in CA

separate property

all property acquired before marriage, after separate or dissolution of marriage, or at any time by gift, bequest or descent

trust

a relationship whereby a trustee manages property for a beneficiary (a "Declaration of Trust" or Trust "Agreement")

settlor

A person who owns the assets before the trust is created (also known as the "trustor" or "grantor")

Trust Corpus

The property within the trust (also known as the "trust res" or "trust principal")

Trustee:

Trustee: Individual(s) or entity that holds legal title to the trust property.

• Owes fiduciary duties to the trust beneficiary(ies)

• Can do everything the original settlor/trustor could.

Can be:

• An Individual or multiple individuals (costrustees)

• A Bank OR a Bank Officer

Beneficiary

hold's equitable title to the property in the trust (has enforceable rights against the trustee)

Irrevocable Trust

once created, the trust may not be revoked (undone) by the settlor.

Revocable Living Trust

The terms of the trust give the settlor the power to amend or revoke the trust during his/her lifetime.

• Most common form of a trust today.

• Used to avoid probate upon death, or to provide for the settlor during the settlor's life in case the he/she becomes incapacitated.

Default Interstate Succession Rule

Any part of the estate of D not effectively disposed of by will passes to D's heirs

what is the purpose of intestacy

meant to carry out the probable intent of the intestate decedent

Intestacy: what is surviving spouses share of CP?

Before death: 50%

After death: 100%

Intestacy: what is surviving spouse share of SP?

ALL: if D did not leave any surviving issue, parent, siblings, or issue if a sibling.

1/2: (a) D leaves 1 child OR issue of 1 deceased child (b) D leaves no issue BUT leaves parent(s) OR siblings OR issue of sibling

1/3: (a) D leaves 1+ children (b) D leaves 1 child & issue of 1 OR more deceased children (c) D leaves issue of 2 OR more deceased children

Do non-marital children inherit? adopted kids?

parent-child relationship exists regardless of NP's marital status. yes they inherit

adoption creates parent-child relationship

Intestacy: Adoption also severs parents-child relationship of natural parent (NP) UNLESS certain requirements met. What are they?

(a) NP & adopted person lived together at any time OR NP was married to/cohabitating with the other NP at the time person was conceived & died before person's birth

(b) Adoption was by spouse of either of the NP OR after the death of either NPs

Foster & Step-Children Intestacy Rights?

IS from/through foster or stepparents depends on whether relationship established during child's minority & the foster/stepparent would have adopted child but for legal barrier

• Estate of Martino (2023): a stepchild may also establish a right to intestate succession under family code § 7611(d); if '[t]he presumed parent receives the child into their home and openly holds out the child as their natural child.'

Attested Wills Must Be…

(1) In writing

(2) signed by testator or in T's name by a 3rd party in T's presence & by T's direction

• Verify actually T's signature; check specific in class notes

(3) Must be signed by at least 2 competent witnesses who while present (conscious presence test & line of sight test) at the same time witness the testator sign the will; acknowledge that the will is T's

Attested Wills - Witness Requirement

• Line of Sight Test: The testator must be capable of seeing the witnesses while testator is in the act of signing. The will and both witnesses must be within the testator's eyesight, at all times, during the act of the testator signing the will (an exception is made for blind testators). (In re Groffman)

• Conscious Presence Test (CA Rule): Presence is satisfied if the testator, through sight, hearing, or general consciousness of events, comprehends that the witnesses are there while testator is in the act of signing.

Attested Wills: Must be disinterested witness

(otherwise presumption of undue influence)

oPC §6112(b): A will is not invalid merely bc it is signed by an interested witness (but gift to that person is)

oPC §6112(c): Unless 2 other disinterested witnesses to validate gift to 3rd interested witness the presumption of undue influence that interested witness must rebut, if failed gift goes to intestacy (BUT presumption does not apply if gift is made to person bc of their fiduciary capacity)

Attested Will: Harmless Error Rule

[applies to witness req only]

If will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will.

• Note: doesn't apply to codicils or words of revocation, remember, a court can always treat a "codicil" as a full-fledged "will"

Holographic Wills

(1) In writing

(2) signature & material provisions are all in the T's own handwriting

(3) Testamentary Intent Req: T must intend for doc to be the T's will

Holographic Will: what if its missing a date?

if omission of date result in doubt abt which provisions are controlling, holographic will is invalid to the extent of the inconsistency UNLESS the date is est. to be after the other will's execution (the last valid holographic will/codicil in time controls bc latest T intent)

Holographic Will: what if capacity issue?

if T lacked capacity at any time during which will might have been executed = invalid; UNLESS the proponent of will proves T had capacity at time of execution (extrinsic evidence).

Conditional Will (Entire v. Specific Gift)

Will made conditional upon the happening of a certain event. If the condition does not occur, then the will does not go into effect

• Condition on Entire Will: Entire will stands OR fails based on whether the T intended for condition to be binding

• Condition on Specific Gift: a specific gift within a will stands or fails based on whether a condition set forth in the will is satisfied

Testamentary Capacity

1. Legal: 18 + mental capacity

2. Mental:

Mental Capacity Test:

(a) T must understand the nature of the testamentary act

(b) must understand and recollect the nature and situation of the individual's property, AND

(c) must remember & understand the individual's relation to living descendants, spouse, and parents and those whose interests are affect by the will

Insane Delusion Test (if necessary)

• T operating under false & unfounded belief

• T adheres to the mistaken belief against all evidence, argument & reason to the contrary, and

• The insane delusion affects the will

who has the burden of proving capacity?

the person attacking the will

Result: if T lacked mental capacity at the time of execution?