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Wills And Trusts Bar Outline

Law Outlines > Wills and Trusts - Bar Exam Outlines

This is an extract of our Wills And Trusts Bar Outline document, which we sell as part of our Wills and Trusts - Bar Exam Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

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WILLS OUTLINE PROBATE TRANSFERS - BY WILL AND INTESTACY: Probate is the process of going through the court system to see who gets what property.

1. INTESTACY - a person dies intestate if they die without a valid will. Deceased can be intestate (have no will) or partially intestate (they have a will but it doesn't properly dispose of all their property). a. Surviving Spouse / Domestic Partner i. Community Property - Surviving spouse inherits the decedents 1/2 share of the CP.

1. Note: already owned 1/2, therefore surviving spouse has 100% of the CP ii. Quasi-CP - Surviving spouse inherits the decedents 1/2 share of the QCP.

1. Note: already owned 1/2, therefore surviving spouse has 100% of the QCP iii. Separate Property: surviving spouse inherits decedent's separate property as follows:

1. All Decedent's Separate Property: if deceased had NO surviving issue, parents, siblings, or issue of deceased siblings. (No other heirs)

2. 1/2 Decedent's Separate Property: if deceased had ONE child or issue of one dead child, OR had a parent, sibling, or their issue. (one child, or if parents)

3. 1/3 Decedent's Separate Property: if deceased had more than one child, OR one child and issue of one or more dead child, OR just issue of two or more dead children. (more than one child or issue.)

4. Remainder (The Seven-Headed Monster) - Used to divide up the property left after the spouse takes their share or if there is NO spouse we look here to divide up the entire estate under intestacy. Property will be divided in this order: a. Issue of the decedent (Children, Grandchildren, or great-grandchildren) b. Decedent's Parents (1 parent then all, 2 parents then split 50/50) c. Decedent's Siblings or their issue (Brother & Sisters / Niece & Nephew) d. Grandparents or issue of grandparents (Aunts, Uncles, Cousins) e. Issue of a predeceased spouse (Step Kids) f. Next of kin (3rd cousins) if there are two equal collateral next-of-kin, the one through the deceased's nearest ancestor will take. g. Former In laws or their issue i. If of Equal degree of Kinship, survivors take equally Per Capita.

5. Escheat - If no one can take, then the deceased's intestate estate escheats to the state.

6. Property Distribution for Unequal Kinship a. Per Capita - Count heads of those living and distribute equally b. Per Stirpes - Start at the highest level and divide evenly among that level regardless of whether there are living relatives in that level. c. SS240 - You begin your division on a level where there are living relatives; i.e., you skip any generations without living issue. Once you find the first generation of living issue, then it is distributed like per stirpes i. Note - A will can supersede SS240 1

iv. Advancements - If a person dies intestate, property given to an heir by the decedent during their lifetime is treated as an advancement against that heir's share if:

1. Proof - There is a contemporaneous writing by the decedent or by the heir indicating that the property was intended to be given as an advancement

2. Value - property is valued at the FMV at the time the transferee came into possession a. Note - If the value is listed in the writing it is conclusive.

3. Survive - If beneficiary does not survive the decedent, the advancement will not be counted against beneficiaries' issues share. a. *Note - In California, there is a presumption against advancements. v. Simultaneous Death: The question here is whether the beneficiary survived the decedent.

1. Uniform Simultaneous Death Act - If the distribution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whom, then it is deemed the one did not survive the other. a. Joint Tenants - If Joint Tenants die simultaneously, the tenancy is severed, 1/2 goes to A's estate and 1/2 goes to B's estate. b. Community Property - If H & W die simultaneously, 1/2 that property is distributed as if the husband survived the wife, and the other 1/2 is distributed as if the wife had survived the husband. c. Life insurance policy - If insured and beneficiary die simultaneously the proceeds go to alternative beneficiary if one. If not, proceeds are paid to insured's estate.

2. Intestate Succession (No Will) - Where there's no will as to the property, a person who fails to live 5 days (120 hours), established by clear and convincing evidence after the decedent dies, is treated as though he predeceased the deceased (he gets skipped). a. *This section will not apply if the deceased's property would then escheat to the state under SS6404. vi. Adoption - Treated the same as natural children of the adopting parents

1. Severs - Adoption severs the link between the natural parent and the child, UNLESS: a. The adopted child and natural parent lived together at any time as parent and child (unless premature death prevented this); AND b. the adoption was by the spouse of the natural parent (stepmom) OR upon the death of either of them.

2. Equitable Adoption - (Estoppel) - Arises when the parties hold themselves out as parent and child

3. Foster or Step Children - In order for a person to inherit through or from a foster or step-parent, they have to have: a. Live with that person throughout their life beginning as a child; AND b. It is established by clear and convincing evidence that the stepparent or foster parent would have adopted but for a legal barrier i. Ex: biological parent does not give consent to the adoption ii. A misunderstanding (thinking there was a legal barrier when there was not) is not enough; there must be an actual legal barrier.

2 4. Half Bloods - Relatives who have only 1 common parent inherit the same as the whole blood.

5. Non-Marital Children - Marital status of the parents is irrelevant a. Domestic Partnerships - If the child is born: i. During - Child born during the domestic partnership is presumed to be the child of the non-birthing domestic partner ii. Before - A parent child relationship is presumed to be established if a:

1. Domestic partnership is formed (or attempted to be form) in a lawful manner after the child's birth AND a. The non-birthing domestic partner is named on the birth certificate; OR b. The non-birthing domestic partner makes a voluntary promise to pay child support or is ordered to do so by a court WILLS

2. PROBATE - Probate is a court proceeding to see who gets what property under a will or intestacy. a. Illegal - Because the state distributes property in a will, they will not distribute it in ways that involves a transaction against public policy, an unreasonable restraint on alienation or marriage, provisions promoting separation or divorce, spousal rights, creditors rights, provisions encouraging illegal activity, impermissible racial or the rule against perpetuities. a. Admitting the Will - A will is not self-executing. It must be submitted for probate. b. Contesting the Will - A will may be contested up to 120 days after admission to probate by a directly interested person. c. No Contest Clauses - No Contest Clauses will only be enforced against contests brought without probable cause. They are strictly construed. Remember to bait the hook.

3. FORMATION - A person can have an ATTESTED or a HOLOGRAPHIC will. a. ATTESTED WILLS: an attested will is a will that was "attested to" by a witness. i. General Requirements - In general, an attested will MUST be:

1. In Writing, (Oral wills are not recognized in CA)

2. Signed , AND a. Testator - Nicknames are okay, X is okay if T is illiterate b. A Third person in T's presence and at T's direction c. By a Conservator pursuant to a court order

3. Witnessed by 2 witnesses during the testators lifetime, who are a. Present at the same time, and b. Witness either the signing or testator's acknowledgment of signature, and c. Be able to understand that they're signing as witnesses to the testator's will.

4. Substantial Compliance - If a will was NOT EXECUTED in compliance with the requirements above the will is invalid unless the proponent of the will can establish by clear and convincing evidence that, at the time the testator singed the will, the testator intended the will to constitute the testator's will. ii. Witnesses 3

1. Requirements - Can sign anywhere in the will. W can't sign after T dies!

2. Interested Witnesses Witness who is a beneficiary under the will a. NOT facially invalid just because the will was signed by an interested witness. b. Presumption - Unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing c. Intestate Share - If witness-beneficiary cannot rebut the presumption of wrongdoing, he takes the an amount that does NOT exceed his intestate share. i. i.e. if not related, can be completely barred. d. Fiduciary Capacity - Presumption of wrongdoing is inapplicable if witnessbeneficiary is taking only in a fiduciary capacity (as trustee for child, etc.) i. *Note - an interested witness cannot become disinterested within the meaning of the statute by subsequently disclaiming their interest. iii. Conditional Wills - Validity is made conditional by its own terms

1. Ex: T states "this is my will if I die in Europe during my vacation"

2. The will is to be probated only if the condition is satisfied

3. Conditional wills can be formal (attested) or holographic. b. HOLOGRAPHIC WILLS: In the testators handwriting and require no witnesses. i. Ex. Dying note on tractor fender, love letters, plaster walls, eggshells, and tattoos were all valid holographic wills and can act as codicils to a valid will. ii. General Requirements -

1. Signature, AND

2. Material Provisions must be in the Testators Handwriting. a. Material provisions: (1) Gifts made, (2) Beneficiaries names b. NO witnesses are needed. iii. Incapacity - If the will was written during any time of incapacity, it is invalid. iv. If there is NO Date - If there is no Date on the will and there is another will, we will assume the holographic will was earlier, and provisions are invalid to the extent they conflict with a later will. v. Writing as a whole - In determining the testator's intent CA will look at the document as a whole. (Even the typed portions) However, material provisions must be in writing. vi. Form Wills - Because California will look at the whole document, form wills are ok. Form wills are best for "plain vanilla" cases. vii. Extrinsic Evidence - California allows extrinsic evidence to determine the testators intent if it is needed to determine whether a document constitutes a will, or to determine the meaning of a will if the meaning is unclear.

4. CONSTRUCTION a. Intent of Transferor Controls - The intent of the transferor controls. Extrinsic evidence can be brought in to establish intent. b. Interpretation - There is a presumption that all language in a testamentary instrument has some meaning (there is no superfluous language), AND against intestacy or failure of the transfer. c. Document understood as a whole - ALL PARTS of the testamentary document are to be construed in relation to each other to form a consistent whole. d. Integration - Refers to which papers make up the will i. Two elements required 4

1. Intent - T must have intended for the papers in question to be part of the will

2. Presence - Paper must be actually or physically present at the time of execution a. Ex: T goes to sign will. T wants a page redone. Lawyer promises it will be typed and inserted the next day. T signs. T dies. New page will not be probated because it was not present. The old page also cannot be probated because T did not intend it to be part. ii. Proving integration (2 ways)

1. Establish a physical connection among all the pages (i.e. Stapled together)

2. Establish a logical connection (i.e. last word on page 1 flows into page 2) e. Incorporation by Reference- May reference an existing document in a will. i. Elements

1. A document or writing

2. In existence when the will was executed

3. Document must be Clearly identified in the will; AND

4. T must have Intended to incorporate the document into the will (imputed if 1-3 met) a. Note - Document incorporated does not have to be valid (i.e. invalid deed) f. Acts of Independent Legal Significance - Wills can dispose of property conditioned on acts of independent significance outside of and apart from the will. i. Parol Evidence - the court will use parol evidence to fill in the blanks.

1. Ex: "I leave all my property to the people who I employ at the time of my death." ii. Note - The fact or act can be future or past g. Writing Disposing of Limited Tangible Personal Property i. Effective for decedents dying on or after January 1, 2007, under new California Probate Code section 6132, a writing may be admitted into probate and given testamentary effect ii. Elements under 6132

1. Writing must be Referred to in the will, Dated, and Signed or handwritten by the T

2. Writing must Describe the items and Beneficiaries with reasonable certainty

3. Writing directs the disposition of tangible personal property (excluding cash and property used primarily in a trade or business) valued, at the time of T's death, at not more than $5,000 per item and not more than $25,000 in the aggregate. iii. Note - Remember to discuss all three on Bar! Incorporation by reference, independent significance, & section 6132 h. Pour-Over Wills - Part or all of T's estate is devised to the trustee of the inter-vivos trust to be administered pursuant to the terms of that trust i. Three methods to validate

1. Incorporation by Reference

2. Independent Significance - Even without the will, the inter-vivos trust would exist

3. Uniform Testamentary Additions to Trust Act (UTATA) - So long as you have a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision is valid by statute. ii. Bar Tip: discuss all three theories for a pour-over will

5. CODICILS - (RAM) - Testamentary instrument executed in compliance with the CA Probate Code which Revokes, Amends or Modifies a will. (i..e Must be a valid holographic or attested will) a. Republication - A codicil republishes a will. This means that the it causes the will to speak from the date that the codicil is executed. 5

b. Revocation of Codicils i. If T executes a will, then executes a codicil, and subsequently revokes the codicil, there is a rebuttable presumption that T intended to revoke only the codicil ii. If T executes a will, then executes a codicil, and subsequently revokes the will, there is a rebuttable presumption that T intended to revoke the will AND the codicil

1. i.e. cannot have a codicil stand on its own.

6. REVOCATION - Unless revoked, a will can be probated. (think about Sept. 11, Hurricane Katrina, etc.) a. If NOT revoked properly, the prior will is still valid. i. *Simply saying "I revoke this will" is not enough; must take some action. b. Physical Act (3 elements) i. Act - Will must be burned, torn, cancelled, destroyed or obliterated (i.e. crossing out) ii. Simultaneous Intent - T must have the simultaneous intent to revoke iii. Act must be done either by T or by someone in T's presence and at his direction

1. Cancellations - crossing out or lining through a. Cancellation to increase a co-beneficiary's gift - You cannot increase a cobeneficiaries gift by cancellation. i. Ex: I leave my farm to X and Y. T subsequently crosses out Y. ii. X still only gets 1/2, Other half goes to residuary or by intestacy b. Look to DDR for cancelations that do not qualify as a holographic will.

2. Interlineations - writing between the lines - A handwritten addition to a typed will that does NOT qualify as a holographic codicil may nonetheless be a revocation

3. Duplicate Wills - If T or someone in T's presence and at his direction revokes by physical act one of the duplicate originals (Not photo copy), then the other duplicate is also revoked as a matter of law

4. Mutilated Wills - If a will is found in a mutilated condition at T's death and when last seen it was in T's possession, then there is a rebuttable presumption that T mutilated the will with the intent to revoke the will c. Subsequent Will - A will may be revoked by a subsequent will either expressly or impliedly. i. Manner of Revoking

1. Express - W1 can be expressly revoked by W2 (I revoke all previously wills)

2. Implied - W1 can be revoked by W2 if impliedly, when W2 disposes of T's entire estate, there is nothing for W1 to act upon. ii. Automatic Revival - If a later will revokes an earlier will and then that later will is revoked, that first revoked will is NOT automatically revived. It will be revived only on evidence that the testator intended to revive it. (statement in will) d. Divorce / Remarriage -UNLESS the will expressly provides otherwise, divorce, dissolution, or annulment revokes disposition to the former spouse. i. If divorced and then remarried to same person, the original will is revived ii. Does not get rid of former in-laws, step-children, etc (Just spouse) iii. *Does not apply to legal separations iv. *Automatic Revocation. No action needed.

7. CHOICE OF LAW - Can be admitted to probate in CA if the will: a. Complies with the formalities of CA law b. Complies with the formalities of the place executed c. Complies with the formalities of the place of T's domicile at execution 6

8. CONTRACTS TO MAKE / NOT MAKE A WILL - A contract to make a will, not to make a will or die intestate can be enforced IF: (4 Ways) Contract law governs. a. The will or other instrument states the material provisions of the contract i. Ex: T's will states "In consideration of the $5k A gave me, I have promised to devise Blackacre to A and I hereby do devise" b. Contract referenced in will, plus extrinsic evidence proving the terms of the contract c. A writing signed by the decedent evidencing the contract d. Clear and convincing evidence of an agreement (with the beneficiary or third party) for the benefit of the claimant that is enforceable in EQUITY (Estoppel) i. *NOTE - Joint wills won't create a presumption of a contract not to make or revoke a will.

1. Joint Will is the will of two or more people on one document ii. Remedies Available to Promisee

1. Damages - P can sue Decedent's estate

2. Specific Performance - P can seek to force the executor to comply with the contract

3. Constructive Trust - the court can probate the will as it is, giving the property to the devisee, and make the devisee a constructive trustee, who must transfer the property to the promisee of the contract

9. ADEMPTION by EXTINCTION - No longer anything to convey because it has been destroyed, given away, sold, etc. a. Classification i. Specific devise - Gift of a particular item (unique) Ex: Real estate, Antique automobile ii. General devise - Payable out of the general assets of the estate (i.e. $100) iii. Demonstrative devise - Hybrid between a general and specific gift

1. It is a gift from a particular fund, but if that is not enough, the executor can resort to general property

2. Ex: "To John I leave $1k from my account at Chase." There is only $900 in the account. The balance will come from general assets iv. Residuary devise - All other property not expressly disposed of in the will

1. Ex: "I leave the residue / balance of my estate to M" b. CL - Ademption by Extinction - specific gift failed if testator did not own the property at T's death c. CA - Intent is important for determining whether T intended for the gift to fail. Recipient has Right to Receive the specific gift if testator did not intend for the gift to fail. i. Securities changing form - mergers, stock splits, stock dividends, or reorganization of corporations with stock re-issue.

1. T did not change the form, another entity did, so gift still valid

2. Distinguish changing form from buying more stock. ii. Conservator Sells the Property - If conservator is appointed and sells property with court approval, there is no ademption by extinction in CA, the beneficiary takes the net sales price

1. T did not sell the property, therefore did not intend gift to fail. i.e. foreclosure sale iii. Eminent domain award, Casualty award, or an Installment sale of property in which T holds the deed of trust as security for the sale.

1. Paid After T's Death - There is no ademption by extinction with respect to the eminent domain proceeds, insurance proceeds, or installment payments paid AFTER T's death

2. Paid During T's Life - Proceeds paid during T's life - see if you can trace 7

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