(1) inheretence + intestacy

What are the 4 examples of conditions in a will that are typically held invalid?

Restraints on marriage, discriminatory practices, requirements to commit waste (e.g., destroying a house), and gifts conditioned on the violation of law.

What is the difference between an 'heir' and a 'beneficiary'?

A beneficiary is named in a will to receive assets; an heir is designated by law to inherit property when someone dies without a valid will.

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?

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

What is the primary difference between separate property and community property in California intestacy?

Community property is split between spouses (survivor keeps their half, decedent's half passes to survivor), while separate property is subject to specific fractional distributions based on who else survives the decedent.

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

The surviving spouse inherits the decedent's half of the community property, meaning the survivor then owns all of the community property.

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

What law governs the disposition of personal property in a will?

The law of the state where the testator was domiciled at the time of death.

What law governs the disposition of real property in a will?

The law of the state where the real property is located.

Under what circumstances will a donative condition in a will be considered invalid?

When it causes net social harm, is unnecessarily punitive, is unreasonably intrusive into personal decisions, or violates important social policy.

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

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

decedent spouse can leave all of their separate property to anyone. BUT, surviving spouse may inherit intestate share depending on whether unintentionally or intentionally omitted from will

In California, what is the surviving spouse's share of separate property if the decedent is survived by one child?

The surviving spouse gets 1/2 and the surviving child gets 1/2.

In California, what is the surviving spouse's share of separate property if the decedent is survived by 2 or more kids?

The surviving spouse gets 1/3 and the surviving child share the other 2/3

In California, what is the surviving spouse's share of separate property if the decedent dies intestate and is not survived by issue but is survived by parents or siblings?

The surviving spouse gets 1/2 and the parents or siblings get 1/2.

What is 'English Per Stirpes' distribution?

A system where the estate is divided into as many shares as there are living children and deceased children who left descendants, starting the division at the first generation regardless of whether any children are alive.

What is 'Modern Per Stirpes' (Per Capita with Representation) distribution?

A system where the division begins at the first generation where there is at least one living survivor.

What happens if a will lacks definitions for terms like 'children' or 'descendants'?

Courts typically apply the definitions found in the state's intestacy statute.

What is the difference between 'vertical equality' and 'per capita' distribution?

Vertical equality (English Per Stirpes) treats each branch of the family equally, whereas per capita systems focus on the first generation with living survivors.

What happens to property if a decedent dies without a will and has no heirs?

The property escheats back to the state.

Does a testator have the right to destroy their house via a will provision?

No, such a provision is generally invalid as it constitutes economic 'waste' and is against public policy.

How does the 'Per Capita at Each Generation' (UPC) system differ from traditional per stirpes distribution?

It achieves 'horizontal equality' by re-dividing shares at every generation level where there are survivors, rather than fixing shares at the first generation.

Under the UPC 'Per Capita at Each Generation' system, what happens to the shares of deceased members at a generation level?

The shares of deceased members are pooled together and divided equally among ONLY THEIR descendants in the next 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

Can a testator's will be challenged even if it meets all formal requirements?

Yes, it can be challenged through a will contest based on undue influence, duress, or fraud.

De Facto Parentage rule (adoption)

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.

What is the majority rule regarding inheritance rights for an adopted child?

Adoption cuts off inheritance rights from biological parents, except in cases where the child is adopted by a stepparent.

adopted child inherits from adoptive parents like a natural child

Under UPC § 2-705, what is the requirement for an adoptee to be included in a class gift to 'children' or 'issue'?

The adoptee must have been adopted as a MINOR or have been a regular member of the parent's household.

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

Traditional Rule: claimant must show enforceable K to adopt bw natural parents & adoptive parents. If both parents are dead or incompetent, a court must appoint a legal guardian

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.

How can paternity be established for a nonmarital child to inherit from their father?

Through the parents' subsequent marriage, the father's formal acknowledgment, adjudication during the father's life or after death, or clear and convincing proof such as DNA testing.

Under CA Probate Code § 6111, what must the proponent of an undated holographic will prove if it conflicts with another will?

The proponent must prove that the holographic will was executed after the conflicting will.

Can a pre-printed form will be considered a holographic will?

Yes, provided that the material provisions and the signature are in the testator's handwriting.

What is the current legal presumption regarding lifetime gifts and advancements?

A lifetime gift is presumed NOT to be an advancement unless it is established that the decedent intended it to be one.

what’s included in CP

includes all earnings of the spouses during the marriage and any property acquired from those earnings