(freedom of dispo + intestate succession) copy; ADD QUASI COMMUNITY PROPERTY + OMITTED SPOUSE EXCEPTION TO SP SPLIT

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.

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

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.

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 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 status of stepchildren under the UPC regarding intestate succession?

Post-2008, the UPC includes stepchildren as a final category of takers if no other kin can be found.

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 all 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.

If a residuary beneficiary predeceases the testator and no alternate is named, what happens to that portion of the estate?

That portion of the estate passes through intestacy (this is eg of lapse doctrine, since the gift fails)

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.

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)?

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 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.

Under California law, what are the requirements for a posthumously conceived child to be considered a legal child?

The decedent must have consented in writing, and the child must be in utero within two years of the decedent's death.

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.

What is an 'advancement' in the context of intestate succession?

A lifetime gift from a decedent to an heir that is intended to be deducted from that heir's share of the intestate estate.

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.

How can the presumption that a gift is not an advancement be rebutted under the UPC?

By a contemporaneous writing signed by the decedent, or a written acknowledgment by the heir stating the gift is an advancement.

How is an advancement valued under UPC § 2-109(b)?

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?

The advancement is ignored when dividing the intestate estate, unless the decedent clearly stated otherwise in a contemporaneous writing.

What is the 'hotchpot' method used for advancements?

The advancement is added back to the total estate, the estate is divided among heirs, and then the advancement is deducted from the recipient's share.

If an advancement exceeds an heir's intestate share, what happens?

The heir keeps the gift but is excluded from the remainder of the estate; no repayment is required.

What is 'satisfaction' in the context of a testate estate?

A lifetime gift that counts against a beneficiary's bequest in a will, but only if the decedent signed a writing stating it was intended as satisfaction.

Does a lifetime gift count against a will bequest without a written statement?

No, without a writing, there is no credit against the beneficiary's share.

What is the primary difference between an advancement and satisfaction?

Advancement applies to intestate succession (no will), while satisfaction applies to testate succession (with a will).

Under the UPC, what is the 'equally near, equally dear' philosophy?

Per capita at each generation; The principle that all takers at the same generation level should receive equal shares of an estate.

What is the definition of a 'class gift' in wills and trusts?

A transfer of property to a group identified by a collective term, such as 'children,' 'issue,' or 'descendants.'

How does the Uniform Parentage Act (UPA) define the window for a posthumous child?

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

Can a nonmarital child inherit from a father who never acknowledged paternity?

No, if the father does not acknowledge paternity, the child generally does not inherit.

Does the UPC require a formal contract for equitable adoption?

No, UPC § 2-118(b) allows a parent-child relationship to be established by clear and convincing evidence of a functional bond.

Under CA Probate Code 21135, what are the four situations where a lifetime gift is considered a satisfaction of a gift under a will?

1) The will/trust specifies it; 2) The transferor states it in a signed contemporaneous writing; 3) The transferee states it in a signed writing; 4) The lifetime gift is the same property described in the will.

What is the primary purpose of a parent appointing a guardian in their will?

To designate a person they trust to manage the custody and care of their minor child if the parents pass away.

Does a court-appointed guardian automatically have the authority to manage a minor's property?

No, a guardian of the person does not have authority over the child's property.

What are three common legal mechanisms used to manage a minor's property?

Conservatorship, custodianship, and trusts.

What is the main advantage of a trust over a conservatorship or custodianship for a minor?

It is the most flexible arrangement and can postpone possession of property until the child reaches a specific age or maturity level.

What is the primary difference between a conservatorship and a custodianship regarding court involvement?

Conservatorships require court supervision and annual accounting, whereas custodianships do not.

What does the 'Slayer Rule' prevent?

It prevents a person who feloniously and intentionally kills the testator from inheriting from the victim's estate.

What level of evidence is required to invoke the Slayer Rule in a probate matter?

criminal conviction not required; a civil court can apply the rule using a 'preponderance of the evidence' standard.

Can a testator override the Slayer Rule in their will?

No, a provision in a will attempting to leave assets to a slayer is disregarded.

What is a constructive trust in the context of the Slayer Rule?

An equitable remedy where the slayer holds legal title to the inherited property as a trustee for the victim's heirs to prevent unjust enrichment.

How does California law treat the estate of a slayer regarding the victim's assets?

The estate passes as if the slayer predeceased the victim, and anti-lapse statutes do not save the gift for the slayer's issue.

What is the effect of UPC 2-114(c) regarding parental neglect?

It 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.

What is a disclaimer in the context of inheritance?

A formal refusal by an heir or devisee to accept a gift or inheritance.

How does a disclaimer affect tax liability?

It typically results in no tax liability for the disclaimant because the law treats them as having predeceased the decedent.

Can creditors reach property that an heir has disclaimed?

Generally no, with the major exception of federal tax liens.

How does a disclaimer affect Medicaid eligibility?

A disclaimed inheritance is still included as part of the individual's assets when determining Medicaid eligibility.

What are the three core formalities required for a valid formal will?

1) Writing, 2) Signature, and 3) Attestation.

What is 'subscription' in the context of will formalities?

A requirement in some states (like NY) that the testator must sign the will at the very 'foot or end' of the document.

Is a signature by mark (e.g., an 'X') valid for a will?

Yes, if the testator is physically unable to sign their full name.

What is a self-proving affidavit?

A document sworn before a notary that confirms the will was duly executed, allowing it to be probated without witness testimony.

What happens if a testator gives a beneficiary the exact item described in their will before death?

The gift is considered satisfied in full, and the beneficiary cannot claim the item or its cash equivalent from the estate.

What happens to a gift if a slayer is barred from inheriting under the UPC?

The killer is treated as having predeceased the victim.

Why might an heir choose to disclaim an inheritance?

For tax planning, to pass assets to the next generation, to preserve government benefits, or to keep assets away from creditors.

What is the purpose of UPC 2-1106(b)(3) regarding disclaimers?

It prevents 'strategic disclaimers' used to unfairly increase the share of the disclaimant's own line of descent.

What is the primary burden associated with a conservatorship?

It is costly, inflexible, and requires the filing of burdensome annual accountings.

What is the 'Order of Signing' rule for will execution?

Generally, the testator must sign before the witnesses, though most courts allow probate if all parties sign as part of a single continuous transaction.

What are the four primary purposes of will execution formalities?

Preventing post-execution additions, standardizing wills for easy probate (channeling), signaling final intent (ritual/cautionary), and providing evidence of approval.

How does the UPC define the timing for 'Delayed Attestation' of a will?

The UPC allows witnesses to sign within a 'reasonable time' after the testator signs or acknowledges their signature.

What are the requirements for a valid Holographic Will under UPC § 2-502(b)?

The signature and material portions (the property being disposed of and the named beneficiaries) must be in the testator's handwriting; no witnesses are required.

What is the 'Electronic Presence Rule' in the context of will execution?

A rule allowing for remote will execution where witnesses and the testator are in different locations but communicate in real-time via audio/video technology.

Under California Probate Code 6110, who may sign a will on behalf of a testator?

Another person in the testator's presence and by the testator's direction, or a conservator acting pursuant to a specific court order under Section 2580.

What is the 'Strict Compliance Rule' regarding will execution?

A traditional standard requiring a will to be executed in exact accordance with every statutory requirement; any defect results in the will being denied probate.

What is the purpose of an attestation clause?

It creates a rebuttable presumption that the formal signing rules were followed, confirming that witnesses saw the testator sign and signed in the testator's presence.

What is the 'Line of Sight' test for witness presence?

The traditional rule that the testator must be able to see the witnesses sign if they were to look; for blind testators, it asks if they would have been able to see the signing if they had sight.

What is the 'Conscious Presence Test' (UPC § 2-502(a))?

A test satisfied if the witnesses can see, hear, or comprehend that the testator is signing the will, even if they are not in the direct line of sight.

What is an 'Interested Witness'?

A witness to a will who is also a beneficiary receiving a gift or bequest under that same will.

What is the effect of a 'Purging Statute' on an interested witness?

The will remains valid, but the gift to the interested witness is voided or 'purged' to ensure the witness is disinterested.

How does the UPC treat interested witnesses under § 2-505(b)?

There is no disinterested-witness requirement, and an interested witness does not forfeit their gift.

What is the California rule regarding devises to an interested witness?

It creates a rebuttable presumption of undue influence, fraud, or duress, rather than an automatic voiding of the gift.

What happens if an interested witness is a 'supernumerary'?

If there are enough disinterested witnesses present to satisfy the statutory requirement, the extra interested witness (supernumerary) can still receive their gift.

What is the 'Harmless Error Rule' under UPC § 2-503?

A rule where a formally defective will is treated as valid if the proponent proves by clear and convincing evidence that the decedent intended the document to be their will.

What standard of proof is required to validate a defective will under the Harmless Error Rule?

Clear and convincing evidence, which is a higher standard than the ordinary civil 'preponderance of the evidence' standard.

Can an unsigned writing be probated under the Harmless Error Rule?

Yes, depending on the jurisdiction, if the proponent proves the testator had finality of intent regarding that specific draft.

What is the 'Electronic Writing Requirement' for a valid electronic will?

The will must exist as a reasonably permanent, retrievable, and readable record of the markings.

Do audio or video recordings qualify as valid electronic wills under the Uniform Electronic Wills Act (UEWA)?

No, audio or video wills do not satisfy the requirement that the will be readable as text.

What are the requirements for an electronic will to be valid under the UEWA?

It must be a readable record, signed by the testator (or at their direction in their presence), and either witnessed by two individuals or notarized.

What is the primary policy argument against the UPC's approach to interested witnesses?

It invites litigation and increases the risk of successful undue influence claims.

What is the requirement for a digital document to qualify as a valid will?

It must demonstrate clear testamentary intent and be retrievable.

Under what condition can a voice recording be considered a valid will?

It must have a corresponding written transcription (voice-to-text).

What are three methods to revoke an e-will under UEWA § 7?

Deleting the file, destroying the device, or deactivating the account with the intent to revoke.

What is the majority approach regarding the notarization of wills?

Most states do not allow notarization as a substitute for the requirement that a testator's signature be witnessed by two witnesses.