My Bar Prep Sets - Wills

Intestacy - Instestate Succesion

Absent a valid will or trust, an estate will be distributed through intestacy

Intestate Succession - Distribution Order

1. Issue

2. Parents

3. Issue of Parents

4. Grandparents

5. Issue of Grandparents

6. Issue of predeceased spouse/domestic partner

7. Decendent’s next of kin

8. Parents of predeceased spouse/domestic partner

9. Issue of Parents of predeceased spouse/domestic partner

10. Escheats to State

Intestate Succession - 120 Hour Rule

In order for an heir to take under intestacy, they must show that they survived the decedent by 120 hours, or otherwise be treated as if they predeceased.

Intestate Distribution - Surviving Spouse

Surviving Spouse is entitled to the decendent spouse’s one-half of the community property, and a portion or all of the separate property (⅓ is there are two or more issues, ½ if there is one issue OR decendent’s parents/sibilings are around, or 100% if no issue or surviving family.)

Issue - Calculating Share

Depends on Degree of Kindship

• If all equal degree = Per Capita (Equal distribution)

• If unequal degree = Per Capita with Representation (Equal division among first level of decendent’s suriving descendents; if the kin at that level has issue, then issue will take in their place.)

Issue - Advancement

Common Law = Any lifetime gift to child presumed advancement —> Hotchpot Method

• Hotchpot Method = Add value of advancement back into intestate estate, divide resulting estate by number of heirs, and deduct the heir’s advancement from their intestate share

California = Advancement ONLY if declared so in contemperaneous writing OR decendent’s contemporaneous writing otherwise indicates that it would be so

Rights of Surviving Spouse - Omitted Spouse/Domestic Partner

Spouse/Domestic Partner who is not mentioned in a will is entitled to intestate share of estate (but no more than one-half) UNLESS

• Intentional and apparent in will

• Given property outside of will in lieu

• Valid contract waiving any right to share in estate

• Was care custodian who married dependent adult testator while providing services or within 90 days, and decendent dies less than six month after the marriage commenced

Issue - Omitted Children

A child who is born or adopted after the execution of a will, OR parent mistakenly believed that child was dead/nonexistent, is entitled to receive an intestate share they would be entitled to UNLESS

• Intentional omission

• Testator had other children at time of will, and left substantially all of estate to the other parent; OR

• Provided for child outside of will and intended this in lieu

Issue - Adopted Children

Treated same as biological. Adoption severs relationship with natural parents EXCEPT in regards to stepparent adoptions.

Parent prohibited from inheriting from/through child if

• Parent’s parental rights were terminated and have not been reestablished

• Parent did not acknowledge child

• Parent abandoned child during minority for at least 7 consecutive years until end of child minority

Issue - Posthumously Born Child

Conceived before, but born after, death of mother’s husband

• Within 300 days = Rebuttable presumption of parentage

• After 300 days = Must prove parentage

Issue - Child Born Out of Wedlock

Conceived outside of marriage, or during marriage but born after divorce, there is a rebuttable presumption of parentage in any of the following circumstances:

• Born less than 300 days after termination of marriage

• Mother and Father attempted to marry before birth and child born within 300 days of that

• Mother and Father attempted to marry or married after child’s birth and fathers name on birth certificate OR father promises/ordered to pay child support

• Father holds child out as his own

Execution of Wills - Formalities (Attested Wills)

A will requires a testator sign with present testamentary intent in the presence of two witnesses and that they understand the significant of the act.

Will Formalities - Signed Writing

Entire will must be in writing and signed by testator. May be signed by some other person at the testaor’s discretion OR by a conservator. Must be at least 18 years and of sound mind. Signature may appear on any part of the will in CA.

Will Formalities - Witnesses

Must be signed and attested to by two witnesses during testator’s lifetime. While not everywhere, an interested witness in CA is considered competent, but there must be two other witnesses present. If not, rebuttable presumption that devise to interested witness is from duress, menace, fraud, or undue influence.

Under conscious-presence test, do not require that witnesses watch testator and other witness sign BUT must be consciously of each other’s presence and what each is doing.

Will Formalities - Testamentary Intent

Testator must know that he is executing a will and must intend for it to have a testamentary effect, and that they generally know and approve of the contents.

Execution of Wills - Formalities (Holographic Wills)

To be valid, all the material provisions of the will must be handwritten, there must be testamentary intent, and the instrument must be signed by the testator; no requirement of dating will, but may

Execution of Wills - Substantial Compliance

California requires that there is substantial compliance with the requirements regarding will execution. A person may provide clear and convincing evidence to show that the executor intended for the will to constitute their will. HOWEVER no signature is not something that can be overcome

Execution of Will - Codicil

Functions as a supplement to a will that alters/amends/modifies the will, and republishes it as of the date of the codicil. Must satisfy the execution requirements for a will. May validate an invalid will by referring to it with sufficient certainty and incorporate it.

Execution of Will - Choice of Law

A will will be considered valid in California if:

• Complies with California Law

• Complies with testator’s domicile’s law

• Complies with state of execution’s formalities

Wills - Will Substitutes

• Revocable Trusts

• Pour-Over Wills

• Bank Accounts and Securities

• Payable-On-Death

• Life Insurance

• Deeds

• Joint Tenancy

Revocation of Wills - Methods

May be revoked fully or partially by subsequent instrument, physical act, or operation of law.

Once revoked, new provision is not given effect until will re-executed or republished.

Revocation of Wills - Methods (Subsequent Instrument)

Can revoke by executing a later will/codicil that partly/completely revokes the prior.

Express or implied via inconsistent terms in instrument, which will control.

Revocation of Wills - Methods (Physical Act with Intent to Revoke)

Can be done through burning, tearing, canceling, obliterating, or destroying material portion with intent to revoke. Some defacement of words is required.

If a will cannot be found after death, there is a rebuttable presumption that the will was revoked; can be rebut with clear and convincing evidence of the contrary. Copies only admisisable to prove testamentary intent

Revocation of Wills - Methods (Operation of Law)

Divorce or dissolution revokes all will provisions in favor of former spouse unless it can be shown testator intended will to survive; separation ain’t enough

Revocation of Wills - Effect of Revoking Codicil

Codicil itself will be revoked, but the underlying will will remain and instead revives the old will/terms

Revival of Wills - Revival

A revocation of will/codicil revives original will if there is proof that testator intended to revive original will, to be proven with extrinsic evidence

Revival of Wills - Dependent Relative Revocation

Occurs when a testator revokes will/portion under mistaken belief, and but for that belief would not have revoked prior will. Allows original will/portion to be revived.

Typically based on mistake

Construction of Will - Classification of Gifts

Established order of distribution and abatement

• Specific Gift = Specifically identifiable

• General Gift = General assets of estate

• Demonstrative Gift = General gift that specifies where the property is to be made

• Residuary Gift = Whatever property remains after all other gifts have been given

Construction of Wills - Integration

All documents that are present at the execution of a will are “integrated” into will, so long as there is evidence of this testamentary intent

Construction of Will - Incorporation by Reference

Allows a writing that is not executed with testamentary formalities to be incorporated by reference into the will if:

1. Existed at time will was executed

2. Intended to be incorporation

3. Described in will with sufficient certainity

Exception = Personal Property Memorandaum → need not be in existence at time will was executed so long as the document referenced describes the personal property of decedent with reasonable certainity.

Construction of Will - Acts of Independent Significance

May condition the desgination of a beneficiary or an amount of a disposition by referring to an unattested act/event occurring before/after execution of will or testator's death, so long as that act has independent signifigance unrelated to the will

If someone has control over this act/event, there may still be independent legal significant if it is unlikely it would be performed solely for testamentary purposes.

Construction of Will - Ambiguities

Courts will interpret only using four corners of document; however, extrinsic evidence is admissible to resolve ambiguities, equivocations, and personal usage.

Unambiguos wills can be reformed by clear and convincing evidence that a will contains a mistake in the expression and establishes the specific intent at the time.

Disposition of Will - Ademption

Two kinds:

1. By Extinction = Specific gift not in estate at time of death → Receives nothing

2. By Satisfaction = Satisfies through inter vivos transfer; CA requires that

   • Instrument provides for the deduction of lifetime gift

   • Intent to adeem expressed in contemperanoues writing

   • Must acknowledge in writing that gift is in satisfaction of at-death transfer; OR

   • Property given same property as specific gift

Disposition of Will - Abatement

Reduced/abated when the assets of the estate are insufficient to pay all debts and legacies.

List of Abatement:

1. Intestate Property

2. Residuary Bequests

3. General Bequests

4. Specific Bequests

Disposition of Will - Lapse

If a beneficiary dies before the testator, then gift will fail and go to residue unless the will provides otherwise.

Exception for class gifts → If class member predeceases, other members share that share

Disposition of Will - Anti-Lapse

If a gift is made to a blood relative of testator/testator’s spouse, and that person predeceases testator, then that blood relative’s issue will take in their place.

Bars to Succession - Slayer Rule

An intentional and felonious killer of a decendent is treated as having predeceased the testator. No anti-lapse statute applicable.

Bars to Succession - Elder Abuse

California prevents someone who is found guilty of elder abuse, whether physical, financial, or neglect, from taking under the will or succession.

Bars to Succession - Disclaimer

A beneficiary may disclaim their interest in a will or inheritance through a

• Signed

• Written Disclaimer

• Identifying the decedent, disclaimed devise, and extent of disclaimer

• Within 9 months of testator’s death

Testamentary Capacity - In General

A testator lacks sufficient capacity if at time of execution:

1. Does not know and understand

   • Nature of Act

   • Nature and Character of Property

   • His relationship to living decendents, spouse, parents, and those affected by will

2. Suffers from mental disorder involving delusions/hallucinations which resulted in his property being devised in a way that would not have happened but for that

Testamentary Capacity - Insane Delusion

A belief for which there is no factual or reasonable basis, but to which the testator adheres to despite all reason and evidence to the contrary.

If proven, must prove “but-for” causation about the disposition and the delusion

Testamentary Capacity - Undue Influence

Excessive persuasion that causes another to act/refrain from acting by overcoming that person’s free will.

Factors whether there was undue inflience:

• Victim’s vulnerability

• Influencer’s apparent authority

• Influencer’s actions/tactics

• Equity of result

Undue Influence - Elements

Must have proof of the following

• Suspectibiliuty

• Motive/predisposition

• Opportunity

• Causation

Contestant must show existence + exertion of influence

Undue Influence - Presumptions

A presumption of undue influence arises when

• Beneficiary stands in confidential relationship

• Actively participated in executing the will

• Gift to beneficiary is unnatural

Burden shifts to beneficiary to show clear and convincing evidence that influence not excercised.

Undue Influence - Invalid Gifts

Any provision that gifts to the following will be presumed invalid:

• Drafter of will

• Person who transcribed will/caused it to be AND in fiduciary relationship with testator

• Care custodian

• Anyone related to/employed by/living with anyone above

• Partner/employee of law firm for drafter/transcriber

Testamentary Capacity - Fraud

Must have been present at time of execution, made by beneficiary with intent to deceive and purpose to influence. Two kinds

• Fraud in Inducement = Knowingly false representation that causes testator to make different will than he would otherwise have made BUT only if testator would have acted differently had he known the truth

• Fraud in Execution = Fraud to very nature of instrument/contents

Probate - Will Contests

Must be done within 120 days after probate opened, and must be directly interested who stands to benefit financially

No-contest clause = Express clause within will designed to deter a beneficiary from suing over his share -→ only enforceable in CA against direct contests without probable cause