CALIFORNIA WILLS & DECEDENTS ESTATES PROFESSOR ZACHARY KRAMER ARIZONA STATE SANDRA DAY O'CONNOR COLLEGE OF LAW

Transcription

1 A. KEY TERMINOLOGY CALIFORNIA WILLS & DECEDENTS ESTATES PROFESSOR ZACHARY KRAMER ARIZONA STATE SANDRA DAY O'CONNOR COLLEGE OF LAW TERMINOLOGY; INTESTATE SUCCESSION SPOUSES Decedent smene wh has Will a legal dcument used t dispse f the decedent s prperty Testate the decedent dies Intestate the decedent dies Cdicil that amends r revkes a decedent s will in whle r in part Prbate judicial prcess fr administering and settling the decedent s estate Intestate Successin estate plan develped by the legislature when the decedent dies intestate Heirs individuals entitled t receive prperty by intestate successin d nt have heirs. Spuse decedent s Surviving spuse utlives the decedent Legal marriage r registered Issue/Descendants decedent s (kids, grandkids, great-grandkids, etc.) Ancestrs decedent s (parents, grandparents, etc.) Cllaterals relatives thrugh an ancestr (siblings, cusins, aunts, uncles, etc.) Cmmunity/Separate Prperty classify prperty as either cmmunity r separate prperty Always lk ut fr classificatin mments B. INTESTACY When a decedent dies withut a will, the decedent s estate is distributed by intestate successin. Default estate plan develped by the legislature Decedent s actual intent is

2 Individuals entitled t take an intestate share are called the decedent s. The tw primary heirs are the decedent s:, and. An heir must survive the decedent Special Case 1: Kids kids Children f a parent can stand in the parent s place fr purpses f intestate successin We call this Special Case 2: Simultaneus Death Hw t determine whether an heir survives the decedent Cmmn Law Rule: an heir s survival must be prved by a. Unifrm Simultaneus Death Act (USDA): when there is insufficient evidence f wh died first, the prperty will pass as thugh each had predeceased the ther. An heir must be prven by clear and cnvincing evidence t have survived the decedent by. Nte 1: In Califrnia, the 120-hur rule nly applies t intestacy, nt wills. C. SHARE OF THE SURVIVING SPOUSE 1. Wh qualifies as a spuse? A, r A This excludes 2. Calculating the surviving spuse s share a. Classify prperty Distinguish between and prperty. b. Cmmunity prperty Includes quasi-cmmunity prperty Prperty acquired by a martial cuple while living that wuld have been cmmunity if acquired in The surviving spuse is entitled t the decedent s ne-half f the cmmunity prperty. The surviving spuse is entitled t f the cmmunity estate Themis Bar Review, LLC CA Wills

3 c. Separate prperty 1) Situatin 1: Spuse +0 If the decedent is nt survived by descendants, parents, r siblings, the surviving spuse gets the f the decedent s separate prperty. 2) Situatin 2: Spuse +1 If the decedent is survived by ne descendant, a parent, r issue f the parent, the surviving spuse gets f the decedent s separate prperty. 3) Situatin 3: Spuse +2 If the decedent is survived by mre than ne lineal descendant, the surviving spuse gets f the decedent s separate prperty. Example 1: Decedent dies wning $500,000 in prperty. $100,000 f the prperty is cmmunity prperty; the rest is separate prperty. He is survived by his registered dmestic partner and the cuple s daughter. What is the partner s share? Answer: D. NO HEIRS If the decedent dies intestate with n heirs, the prperty t the state. Example 2: Decedent dies wning $100,000 f prperty. Decedent has n family r friends, save fr a cat that pities him and steals his fd when he s nt lking. Decedent s estate will escheat t the state. INTESTATE SUCCESSION ISSUE A. WHO QUALIFIES AS ISSUE? Decedent s lineal line (children, grandchildren, great-grandchildren, etc.) There must be a relatinship. Adpted children can inherit just like bilgical children Adptin usually wrks t the child s relatinship with his r her natural parents Special Case 1: Stepparent adptin Creates a parent-child relatinship between the child and the step-parent Des nt prevent the adptee frm inheriting frm the ther bilgical parent CA Wills 2017 Themis Bar Review, LLC 3

4 Special Case 2: Psthumusly-brn children Arises when a child is cnceived, but is brn, the death f the mther s husband If the child is brn within days f the husband s death, there is a rebuttable presumptin that the child is the husband s and the child will inherit as thugh it was brn befre the father died. Nte 2: If the child is brn mre than 300 days after the husband s death, the child will have t prve parentage in rder t inherit frm the husband. B. CALCULATING THE ISSUE S INTESTATE SHARE Califrnia uses tw pssible methds t calculate the intestate shares f issue 1. Per Capita Applies when surviving issue are f degree f kinship (all in the same generatin) Each survivr takes an share Example 3: A is the decedent belw: A B C D E F G H I E, F, G and H all receive f a share. Nte 3: E and F d nt split their share. Each surviving issue in this same generatin takes an equal share. 2. Per Capita with Representatin Representatin: a child dies but is survived by issue; the issue stands in the place f the deceased child Three steps: 1) Divide estate equally at the first generatin where a the descendent 2) If there are deceased members at that generatin, their shares drp dwn t their surviving issue 3) If a deceased member has n surviving issue, that member des nt take a share Themis Bar Review, LLC CA Wills

5 Example 4: A is the decedent belw: A C B D E F G H I J Step 1: A had three kids, and C is the nly survivr. That is the generatin where we divide the estate. Thus, we divide the estate int equal 1/3 shares. C will take a 1/3 share. Step 2: B s and D s 1/3 shares drp t their surviving issue. Because B is survived by G, G will stand in B s shes and take B s 1/3 share. Because D is survived by H, I, and J, they will divide D s share in equal parts, taking 1/9 each. Step 3: Each line is survived by living issue, s each share is accunted fr. Summary: C = 1/3 G = 1/3 H, I, J = 1/9 each Example 5: A is the decedent belw: A B C D E F G H I J K L F, H, J, K, and L survive the decedent. Step 1: The first generatin with a member surviving is E s generatin (the secnd generatin; A s grandchildren). Divide the shares based n the number f members living r represented. E is dead but is represented by J. F is alive. G is dead but represented by K and L. H is alive. I is dead and nt represented by issue. Thus, we divide the estate int 4 shares (E, F, G, and H). Step 2: E s 1/4 share drps t J. F receives 1/4. G s 1/4 share drps and is divided equally between K and L, giving them 1/8 each. Step 3: I des nt take any share. CA Wills 2017 Themis Bar Review, LLC 5

6 Example 6: A is the decedent belw: A B C D E F G H I J K L F, J, K, and L survive the decedent. Step 1: The first generatin with a surviving member is E s generatin (the secnd generatin; A s grandchildren). E is dead but is represented by J. F is alive. G is dead but represented by K and L. H and I are bth dead and neither are represented by issue. Thus, we divide the estate int 3 shares (E, F, and G). Step 2: E s 1/3 share drps t J. F receives 1/3. G s 1/3 share drps and is divided equally between K and L, giving them 1/6 each. Step 3: H and I d nt receive a share. 3. Illustratin Decedent dies intestate, leaving an estate wrth $750,000 (150,000 is cmmunity). Decedent is survived by Spuse. Decedent and spuse had 2 children, A and B. B predeceased Decedent, leaving tw surviving children, X and Z. Hw is the estate divided amng Decedent s family members? Spuse takes: A will take: X and Z will each take: C. DISINHERITED CHILDREN HOORAY! D yu hate yur children? D yu wish they were never brn? D yu wish they culd see just hw much yu want them t live a life f pverty? Then disinherit them! Must be dne by prperly executed will Themis Bar Review, LLC CA Wills

7 Otherwise, they will receive their intestate share. Disinherited heirs are treated as predeceasing the decedent. A. FORMAL WILLS EXECUTION OF WILLS; HOLOGRAPHIC WILLS; CODICILS; WILL SUBSTITUTES Exam Tip 1: This is a highly tested area f law n the Califrnia bar examinatin. Exam Tip 2: The testatr can dispse f all separate and half cmmunity prperty by a valid will. Exam Tip 3: Quasi-cmmunity prperty des nt cme int play until death r divrce. A valid will must meet three frmal executin requirements: 1) ; 2) ; and 3). These are referred t as will frmalities 1. Signed Writing Nte 4: Hw will the curts apprach a will that is missing ne f these frmalities? It culd require strict cmpliance r culd take a mre relaxed apprach t the frmalities. The entire will must be in written (r typed) and signed by the testatr. Califrnia des nt permit ral wills. a. Signature Lcatin b. Capacity Sme states require that the will be signed at the. In Califrnia, the signature can be lcated f the will. It is mst imprtant that the testatr intended her name t be her signature Nte 5: Under the secnd rule (signature n any part f the will), the curt will accept the signature t validate the will, but the curt might nt give effect t the wrds after the signature. The testatr must be at least years f age and f sund mind. CA Wills 2017 Themis Bar Review, LLC 7

8 c. Frm f Signature A frmal signature is nt required. The signature must indicate the testatr s desire. Example 7: Terrance Taylr signs his will T-Bne, his usual nickname. This shuld be sufficient, s lng as he intends fr this t be his signature. 2. Witnesses Califrnia requires that the will be signed in the presence f at least witnesses. a. Signatures The witnesses must als sign the dcument, thugh nt necessarily at the same time. b. Presence In Califrnia, the testatr must sign r acknwledge the will in the presence f the witnesses. Althugh mst witnesses sign in the presence f each ther and the testatr, this is nt required. In Califrnia, the witnesses must sign within the f the testatr (befre the testatr s ). Presence Tw views: traditinal apprach The witness and the testatr must r have the pprtunity t bserve the signing f the will mdern apprach Party bserving the act must be aware the act is being perfrmed. They d nt need t actually bserve the act. Califrnia fllws the cnscius presence test. c. Interested Witnesses When a witness has a direct financial interest under the will Example 8: T-Bne Taylr executes a will that is witnessed by Amy and Bethany. The will gives Amy $10,000 and nthing t Bethany. Amy is an interested witness. At cmmn law, an interested witness was t witness the will Themis Bar Review, LLC CA Wills

9 Many states have mdified the cmmn law by statute: If an attesting witness has a direct financial interest under the will, it will nt affect the f the will. Unless there were tw ther disinterested witnesses, a is created that the interested witness exerted undue influence. If the witness can rebut the presumptin, the witness receives his share f the estate. If nt, the interested witness can still receive the amunt that he wuld under. Example 9: T-Bne Taylr executes a will witnessed by Amy, Bethany, and Carmen. The will gives Amy $10,000, and nthing t Bethany r Carmen. Can Amy take under T-Bne s will? Yes, Amy can take under the will because there are tw disinterested witnesses. 3. Testamentary Intent The testatr must have the intent t make a testamentary transfer. Example 10: As he is signing his will, T-Bne Taylr tells his attrney he wuld like t have a week t g ver the will t make sure I m happy with it. Is there present testamentary intent? Prbably nt. A curt may refuse t admit T- Bne s will fr lack f testamentary intent. Example 11: Althugh the dcument says Last Will and Testament at the tp, T-Bne thinks he is signing a real estate cntract. He vluntarily signs. Will the curt find present testamentary intent? Prbably nt, because T-Bne did nt knw he was executing a will. The testatr must be least 18 years ld and f sund mind. Cmpetency is measured at the. Subsequent incmpetence will nt invalidate the will. B. COMPLIANCE WITH WILL FORMALITIES Old View: Cmmn law was abut cmpliance with all will frmalities. Example 12: T-Bne Taylr s Will was typed in full, prperly signed at the bttm, and signed by witness Amy. Bethany was suppsed t sign as a secnd witness, but accidentally frgt t sign. Under the cmmn law, the will is invalid because the will frmalities require tw witnesses t sign. Mdern View Adpted in Califrnia: Allws fr. CA Wills 2017 Themis Bar Review, LLC 9

10 The curt will nevertheless admit the will t prbate if there is evidence that the decedent intended the dcument t serve as her will. Example 13: Easily distracted, T-Bne neglected t sign his will. The will was therwise witnessed by tw witnesses. The will was typed in full, with T-Bne Taylr s Last Will and Testament typed at the tp. He had als revised the will several times with the help f his lawyer. Under the substantial cmpliance dctrine, the curt may still admit the will t prbate. Lk fr testatr intent. Did the testatr intend, at the time, fr this dcument t serve as a will? C. HOLOGRAPHIC WILLS A hlgraphic will is an infrmal, handwritten will. It des nt have t be. Example 14: On a napkin, T-Bne Taylr writes, I leave everything t my wife, Charlene Taylr, and signs it Terrance Taylr. This is a hlgraphic will. T be valid, a hlgraphic will must be. 1. Hw much writing? In sme jurisdictins, any markings nt in the testatr s handwriting will invalidate the hlgraphic will. Califrnia nly requires that the be in the testatr s handwriting (e.g. wh takes, what they take, in what shares). 2. Testamentary Intent Lk fr wrds r phrases that suggest intent. Example 15: On a piece f statinary, T-Bne Taylr writes hw he wants his prperty t be divided upn his death. He uses wrds like bequeath and inherit, which are evidence f testamentary intent. Exam Tip 4: If yu get a prblem where smene writes, by hand, smething abut their prperty, talk abut hlgraphic wills. Intent is very imprtant. D. CODICILS A cdicil a will; it des nt the underlying will. Example 16: T-Bne s will gave everything t his wife, Charlene. Later, T-Bne executes a cdicil t give half his estate t his best friend Hank Mardukas. Charlene and Hank will each take half f the estate because the cdicil has mdified the will. The prir will is nt revked; it is just amended r supplemented Themis Bar Review, LLC CA Wills

11 Exam Tip 5: A cdicil must be executed with the same frmalities as a will. Frmal wills must be signed, witnessed, etc. Hlgraphic wills must be handwritten and signed. Exam Tip 6: A frmal will may be mdified by a hlgraphic cdicil, and a hlgraphic will may be mdified by a frmal cdicil. E. WILL SUBSTITUTES (NON-PROBATE TRANSFERS) A decedent can avid prbate by transferring prperty thrugh a will substitute Jint tenancy: avids prbate because it has a Revcable Trust: Avids prbate because it is an inter vivs transfer Pur-Over Will: Avids prbate because it distributes prperty Payable n Death (POD) Clauses (Cntracts, pensin plans, and ther dcuments): Avids prbate because it distributes by an Example 17: T-Bne Taylr takes ut a life insurance plicy naming his wife, Charlene, as the beneficiary. On T-Bne s death, the prceeds f the plicy are nt part f T-Bne s prbate estate because they were payable n T-Bne s death (POD). Deed: Avids prbate because it is an REVOCATION A. REVOCATION OF WILLS Exam Tip 7: This is a highly tested tpic. Wills are ambulatry they are capable f being changed at any time up until. A will can be revked in r in. In Califrnia there are three ways t revke a will: 1) By ; 2) By ; 3) By. 1. Revcatin by Subsequent Instrument A testatr can revke a will by a later will r cdicil a. Express Revcatin Later writing will r cdicil that expressly revkes a prir will CA Wills 2017 Themis Bar Review, LLC 11

12 Example 18: T-Bne Taylr validly executes Will 1. Later, T-Bne executes Will 2, which includes the fllwing clause: Will 1 is hereby revked. Will 2 is the perative dcument because it is later in time and was validly executed. Example 19: T-Bne Taylr validly executes Will 1. A year later, T-Bne calls his lawyer and requests that the lawyer revke the first will, it s garbage. Is this a valid revcatin?, ral revcatin is nt enugh t revke. b. Incnsistency A later writing may be incnsistent with a prir will. S lng as it is validly executed, the dcument cntrls. Example 20: In his will, T-Bne Taylr gives his estate t his wife, Charlene. Later, T-Bne executes a will giving his wife Charlene $50,000, and the residue f his estate t his best friend, Hank Mardukas. Because the later will has a residuary gift, it revkes the first will by incnsistency. Exam Tip 8: Yu must be able t distinguish between a cdicil and a new will. Lk fr a residuary gift. If the riginal will had a residuary gift and the later writing des nt, the later writing is likely a. If the riginal will des nt have a residuary gift and the later writing des, the later writing is likely a. 2. Revcatin by Physical Act A testatr may revke a will in its entirety by engaging in a physical act f destructin, such as:,, r the dcument Exam Tip 9: In rder t revke a will, the testatr must fr the physical act t revke the will. Example 21: Clumsy T-Bne Taylr accidentally set fire t his will while trying t light a cigar. This is nt a valid revcatin because T-Bne did nt intend t revke the will. Specific language must destry any material prtin f the will Lst Wills If a will, nce knwn t exist, cannt be fund at the testatr s death, this creates a that the testatr revked the will by physical act. The burden is n the prpnent t shw the will s existence by Themis Bar Review, LLC CA Wills

13 Exam Tip 10: Duplicate riginals be admitted t prbate, but a cpy f the riginal be admitted t prbate. Example 22: After executing his will at his lawyer s ffice, T-Bne wanted t keep the riginal under his bed at hme. The lawyer kept a phtcpy n file. At T-Bne s death, the will cannt be lcated. This creates a rebuttable presumptin that T-Bne revked the will by physical act. Althugh T-Bne s estate can try t rebut the presumptin, the phtcpy may nt be admitted t prbate in place f the riginal will. 3. Revcatin by Operatin f Law Divrce r disslutin f a registered dmestic partnership revkes all will prvisins in favr f the frmer spuse r partner, unless there is evidence that the testatr wanted thse prvisins f the will t survive. Example 23: A will that states, even if we are divrced, I still want my spuse t take their share. Separatin withut divrce des nt affect the rights f the surviving spuse. B. REVOCATION OF CODICILS By revking a will, the testatr als revkes any attached t the will. Example 24: T-Bne Taylr executed a will giving his estate t his wife Charlene. Later, T-Bne executed a cdicil that gave his best friend Hank Mardukas half f his estate. If at sme later pint T-Bne revkes the riginal will, this will als revke the cdicil t Hank Mardukas. The same is nt true fr revking a cdicil. If a testatr revkes a cdicil, the underlying will is in its riginal frm. Example 25: T-Bne Taylr executed a will giving his estate t his wife Charlene. Later, T-Bne executed a cdicil that gave his best friend Hank Mardukas half f his estate. If at sme later pint T-Bne revkes the cdicil, the underlying will is revived and Charlene will take the entire estate upn T- Bne s death. C. REVIVAL Exam Tip 11: This is a highly testable tpic. 1. N Autmatic Revival Like mst states, Califrnia recgnize autmatic revival f a revked will. Example 26: T-Bne Taylr executes a will giving his estate t his wife Charlene. Later, T-Bne executes a new will, which nt nly splits his estate between Charlene and his best friend Hank Marducas, but als expressly CA Wills 2017 Themis Bar Review, LLC 13

14 revkes the first will. T-Bne and Hank have a falling ut and T-Bne revkes the secnd will. Revcatin f the secnd will des nt autmatically revive the first will. In rder fr the testamentary gift t Charlene t be admitted t prbate, T-Bne will need t the first will. If T-Bne desn t re-execute, he will die withut a will, and his estate will be distributed thrugh the rules f. 2. Dependent Relative Revcatin (DRR) DRR prvides a safety valve fr testatrs wh revke a will n the basis f a. The mistake can be a mistake f r a mistake f. DRR will invalidate a mistaken revcatin. Example 27: T-Bne Taylr executes a will giving his entire estate t his best friend Hank Mardukas. After T-Bne gets wrd that Hank has died, he executes a new will giving his entire estate t his wife Charlene. If it turns ut that Hank is in fact alive and well, Hank can seek t have DRR applied t und the revcatin f the first will, n the thery that the revcatin f the first will was cnditined n a mistake f fact (i.e. Hank s death) Example 28: T-Bne Taylr executes a will giving his entire estate t his best friend Hank Mardukas. T-Bne attempts t create a secnd will and writes n the first will that this will is revked because I have made a new will, /s T-Bne Taylr. If it turns ut that the secnd will is nt valid, Hank can seek t have DRR applied t und the revcatin f the first will, n the thery that the revcatin f the first will was cnditined n a mistake f law (i.e. valid executin f the secnd will). Exam Tip 12: If yu see a fact-pattern invlving revcatin based n a mistake, argue intent. Argue that if it wasn t fr the mistake, the testatr wuld nt have revked. The mistake caused the revcatin. If the mistaken revcatin can be undne (thrugh DRR), we can effectuate the testatr s true intent. CONSTRUCTION OF WILLS A. CONSTRUCTION (INTERPRETATION) 1. Plain Meaning Dctrine Curts tend t give wrds in a will their. Assume the testatr meant the plain meaning f what he said, even if he meant smething else (unless the will states therwise) Themis Bar Review, LLC CA Wills

15 Extrinsic evidence is. We d nt g beynd the fur crners f the dcument t determine meaning. 2. Incrpratin by Reference Cncerns dcuments utside the will itself (extrinsic dcuments) A will may incrprate an extrinsic dcument that is nt testamentary in nature, prvided: The dcument is at the time f executin; Nte 6: The CPC will waive this rule if the dcument dispses f nly persnal prperty. The testatr the dcument t be incrprated int the will; and The dcument is in the will with sufficient certainty as t permit its identificatin Example 29: A clause in T-Bne Taylr s will prvides, This will makes bequests in accrdance with the list prvided in my sketchbk, which I keep in the bttm drawer f my desk. After T-Bne s death, the executr searches and finds the dcument. Example 30: Cmpare the abve clause with this clause, This will makes bequests in accrdance with the list that I keep in my huse. That dcument is nt sufficiently described. 3. Acts f Independent Significance A testatr can dispse f prperty based n sme act r event that is t the executin f the will. Example 31: T-Bne s prvides I devise my stamp cllectin t my daughterin-law at the time f my death. The law presumes that the sn s marriage has nthing t d with the will. Exam Tip 13: This dctrine applies t acts that ccur in the future (after the executin f the will). That makes it different frm bth republicatin by cdicil, and incrpratin by reference. 4. Lapse and the Anti-Lapse Statute At cmmn law, a testamentary gift wuld if the intended beneficiary did nt survive the testatr. Failed gifts wuld fall int the gift, if available. Example 32: T-Bne devises My car t my best friend, Hank Mardukas. Hank dies befre T-Bne. The gift t Hank lapsed at cmmn law and wuld g t the residue f the estate. CA Wills 2017 Themis Bar Review, LLC 15

16 Anti-lapse statute: Like mst states, Califrnia has adpted an anti-lapse statute which prvides an fr lapsed gifts. The statute is designed t certain gifts frm lapsing. 1) Bld Relatin The lapsed gift must have been intended fr a relatin f the testatr Example 33: Testatr s child, grandchild, sibling 2) Survived by Issue The statute nly applies when the predeceased relative is survived by issue. Example 34: T-Bne Taylr s will prvides, $10,000 t my sn, Alex. Alex predeceases T-Bne and is survived by a sn, Antn. Step 1: Alex is a bld relative f the testatr. (T s sn). Step 2: Althugh Alex predeceased T-Bne, Alex is survived by issue, Antn. Because Alex and T-Bne are related, and because Alex is survived by Antn, the statute prevents the gift frm lapsing. Thus Antn takes the gift. Class Gifts Gift t a grup f peple ( my grandchildren, etc.) At cmmn law, class gifts were an exceptin t the lapsed gifts rule. If a gift t ne member f the class lapsed, the rest f the class shared that member s gift. Keep this rule in mind when there is a class gift and the lapsed recipient is nt prtected by the CA anti-lapse statute. If the class member is cvered by the anti-lapse statute and leaves issue, the anti-lapse statute cntrls. 5. Classifying Gifts Specific gift: a gift f f prperty Example 35: T-Bne devises my stamp cllectin t Hank Mardukas. General gift: a gift f prperty Example 36: T-Bne devises $10,000 t my nephew Alex. Demnstrative gift: a gift frm Example 37: T-Bne devises $10,000 t my daughter Bnnie frm my Bank USA accunt, but if the funds are insufficient, then frm the estate s general assets Themis Bar Review, LLC CA Wills

17 Residuary gift: 6. Ademptin Example 38: T-Bne devises the rest f my prperty t X. a. Ademptin by Extinctin Applies when a will makes a f prperty, but that prperty is at the testatr s death This culd be due t the transfer f the prperty r because it was destryed r lst. Traditinal Rule (Identity Thery): the specific devise was extinct and the devisee takes nthing Califrnia ( ): lk t the testatr s intent at the time that she f the prperty Lk fr facts indicating the testatr intended the ademptin. Exam Tip 14: Curts will try t avid ademptin if pssible by identifying replacement prperty. Example 39: T-Bne Taylr devises his cherished stamp cllectin t his sn, Harvey. When he made the will, T-Bne wned the stamp cllectin. Later, hwever, T-Bne sld the stamps. With the mney he made n the stamps, T- Bne bught a rare picture f Elvis playing racquetball, which he wned at his death. Under the CPC, Harvey culd receive the pht as replacement prperty. b. Ademptin by Satisfactin Applies when a testatr satisfies a general, specific, r demnstrative gift, either in whle r in party, by an Editr's Nte 1: The lecturer slightly misstates the abve rule. Nte that ademptin by satisfactin may apply t general, specific, r demnstrative gifts. In rder fr the gift t be satisfied, ne f the fllwing must be present: The instrument prvides fr the deductin f the lifetime gift frm the at-death transfer; The testatr expressed intent t adeem in cntempraneus writing that is signed by testatr; Transferee acknwledged in writing that lifetime gift satisfies the at-death transfer; r Prperty given is the same prperty subject t the specific gift CA Wills 2017 Themis Bar Review, LLC 17

18 B. AMBIGUITIES AND MISTAKES 1. Ambiguities Example 40: T-Bne s will devises his stamp cllectin t my brther. Hwever, T-Bne has tw brthers, Arnld and Bernie. This is a ambiguity because it is nt ambiguus n its face. It is nly ambiguus if yu knw T-Bne has tw brthers. Example 41: T-Bne s will devises sme real estate t his brther. At ne pint in the dcument, it lists the address as 1122 Bgie Bgie Avenue, while in anther spt in the dcument it lists the address as 2211 Bgie Bgie Avenue. This is a ambiguity because it is ambiguus n the face f the dcument Traditinally, curts required patent ambiguities t be reslved withut lking t extrinsic evidence, while extrinsic evidence was admissible t reslve latent ambiguities. Tday, mst curts, including curts in Califrnia, allw bth ambiguities t be reslved with reference t extrinsic evidence. 2. Mistakes Curts tend t be less frgiving abut mistakes. Example 42: In drafting his will, T-Bne accidentally gave his stamp cllectin t Arnld instead f giving it t Bernie, an avid stamp cllectr. Even if Bernie can prve the mistake, curts are likely t leave the prvisin as executed. Editr's Nte 2: Generally, extrinsic evidence is nt admissible t refrm an unambiguus will. Hwever, an unambiguus will may be refrmed if clear and cnvincing evidence establishes that the will cntains a mistake in the expressin f the testatr s intent at the time the will was drafted and establishes the testatr s specific intent at that time. In Example 42, a CA curt wuld nly refrm T-Bne s will if Bernie was able t establish the mistake and T-Bne s specific intent by clear and cnvincing evidence. POWER TO TRANSFER We are primarily cncerned with limits n the testatr s pwer t transfer Specifically, we are interested in three situatins: The rights f the testatr s Gifts t the testatr s Bars t successin, in particular, the and disclaimer Themis Bar Review, LLC CA Wills

19 A. RIGHTS OF THE SURVIVING SPOUSE A surviving spuse is entitled t a number f means f supprt under Califrnia law: Scial security and pensin Hmestead exemptin Persnal prperty set-asides Family allwance fr reasnable living expenses and/r 1. Elective Share (cmmn law states) If a surviving spuse is unhappy with his r her share under the will r intestacy, the spuse can elect t take a frced share. This means the spuse s elective share may change r disrupt the gifts t ther beneficiaries Nte 7: There is n elective share in cmmunity prperty states. 2. Cmmunity Prperty The surviving spuse already wns ne-half f the cmmunity prperty. It is the ther nehalf that is subject t dispsitin by will. 3. Omitted Spuse/Partner If a marriage r partnership ccurs after the will is executed, the missin is treated as a partial revcatin. The mitted spuse/partner takes an intestate share. Limit: Regarding the decedent s separate prperty, the intestate share is capped at ne-half the value f the separate estate. This limit applies after the spuse receives the cmmunity share. B. GIFTS TO CHILDREN 1. Advancements A lifetime gift t a child that is treated as satisfying all r part f the child s share. Exam Tip 15: Operates like ademptin by satisfactin (testate), except advancements deal with intestate successin. a. When is a lifetime gift an advancement? Cmmn Law: Any lifetime gift was presumed t be an advancement f the child s intestate share. The child had the burden t shw that the gift was an abslute gift. Califrnia: A gift is an advancement nly if: (i) the decedent declared in a that the gift was an advancement (r the heir acknwledged as such in writing); OR CA Wills 2017 Themis Bar Review, LLC 19

20 (ii) the writing therwise indicates that the gift shuld be taken int accunt when cmputing the divisin f prperty f the decedent s estate. b. Hw d we calculate advancements? Htchpt Analysis 1) the value f the advancement(s) back int the intestate estate. 2) the resulting estate by the number f children taking. 3) the child s advancement frm the child s intestate share. Example 43: The decedent dies intestate, leaving three children A, B, and C and an intestate estate wrth $50,000. A received an advancement wrth $8,000 and B received an advancement wrth $2,000. C did nt receive an advancement. What is each child s intestate share? (1) ADD: $50,000 + $8,000 + $2,000 = $60,000 (2) DIVIDE: $60,000/3 = $20,000 fr each child. (3) DEDUCT: $20,000 $8,000 = $12,000 fr A $20,000 $2,000 = $18,000 fr B $20,000 0 = $20,000 fr C 2. Omitted Children a. Intentinal Disinheritance If dne s intentinally, a parent is free t disinherit his children. Example 44: T-Bne s will prvides, I have intentinally nt made any gifts t my child, Bernard, fr he is a rtten child and unwrthy f my lve r mney. b. Unintentinal Disinheritance This is the ps situatin. Califrnia has a special rule fr dealing with this situatin. Example 45: A cuple drafts wills and then has a child. The cuple frgets t change their wills. The child in this case will take an intestate share. In sme states: The mitted child receives an intestate share. In Califrnia: The mitted child receives an intestate share. Example 46: A cuple has a child and then they draft wills. They put the child s name in the wills. Then the cuple has a secnd child, and d nt amend the wills. The wills mentin the first child by name but d nt mentin the secnd child. What happens t the secnd (mitted) child? Themis Bar Review, LLC CA Wills

21 In sme states: The secnd (mitted) child partially divests the first child f his devises and they have t share. In Califrnia: An mitted child receives an intestate share regardless f whether the first child takes a share under the will. C. BARS TO SUCCESSION 1. The Slayer Rule A persn cannt prfit frm murdering anther. In the will cntext, a beneficiary wh murders the decedent is barred frm taking under the decedent s will. A beneficiary wh murders the testatr is treated as if he the testatr. Exam Tip 16: Curts have nt applied The Slayer Rule in invluntary manslaughter r self-defense cases. The murder must be intentinal and felnius. The rule applies t. Califrnia des nt apply anti-lapse dctrine t save a gift t a killer in favr f the killer s issue. 2. Disclaimer A persn may disclaim a testamentary gift (usually fr tax reasns). A valid disclaimer must: 1) Be in,, and with the curt, r t the persn distributing the estate; AND 2) the decedent, the interest being disclaimed, and the extent f the disclaimer. The disclaimer must disclaim within f the testatr s death. 3. Elder Abuse In Califrnia, smene wh is cnvicted f financial explitatin, abuse, r neglect f a persn under their care is prhibited frm inheriting frm that persn. WILL CONTESTS Will cntests Objectins t the validity f the will, mst cmmnly the testatr s capacity Only an party has standing t challenge a will. Interested party anyne wh might get a financial benefit under the will, r smene wh wuld take under intestate successin, but des nt take under the will Keep in mind: The cntestant must challenge. CA Wills 2017 Themis Bar Review, LLC 21

22 A. TESTAMENTARY CAPACITY In rder t execute a will in Califrnia, the testatr must be at least years ld and must be f. 1. General Testamentary Capacity The cntestant bears the burden f prving that the testatr lacked the requisite mental capacity. ( The Questin ) Whether the testatr had the ability t knw: The nature f the act ( The Questin ); The nature and character f her prperty ( The Questin ); The natural bjects f his bunty ( The Questin ); and The plan f the attempted dispsitin ( The Questin ). 2. Insane Delusin Exam Tip 17: The issue is NOT whether the testatr actually knew these things. The issue is whether the testatr had the ability t knw them. Example 47: T-Bne has a bit f a drinking prblem, and ccasinally suffers frm memry lapses. This des nt by itself mean that T-Bne lacks capacity t make a will; it des nt mean that he lacked capacity at the time he executed the will. Example 48: T-Bne suffered frm intermittent buts f dementia. While he was meeting with his lawyer t execute his will, T-Bne became disrientated and culdn t remember the names and faces f his tw children, Bnnie and Clyde, wh were the sle beneficiaries f his will. At that pint in time, it is questinable whether T-Bne was able t knw the natural bjects f his bunty. Example 49: Same facts as abve, except T-Bne culd recgnize Bnnie and Clyde, but he culd nt remember where he was r wh his lawyer was, and culd nt remember hw much prperty he actually wned. It is likely that T- Bne lacked general capacity, as he didn t knw what he was ding at the time. An insane delusin is a belief t which the testatr adheres t despite all reasn and evidence t the cntrary. The testatr may have general capacity, but has an insane delusin as t sme belief. Objective Test: Measure the testatr s insane delusin against that f a in the testatr s psitin. A belief is an insane delusin if a ratinal persn culd nt have reached the same cnclusin. Causatin: The cntestant must shw that the insane delusin was a cause f the testamentary dispsitin Themis Bar Review, LLC CA Wills

23 Exam Tip 18: Causatin is key in making an insane delusin challenge. Example 50: T-Bne Taylr was cnvinced that his wife Charlene was cheating n him. S cnvinced f this fact, T-Bne wuld sit n the cuple s stp and cnfrnt men wh walked by, accusing them f having sex with his wife. He wuld nt permit Charlene t be hme alne because he was wrried that her paramurs wuld visit her while he was away frm the huse. Charlene vehemently denied the allegatin. T-Bne s will prvides, I leave nthing t my wife because f her rampant pattern f adultery. In this case, Charlene wuld have a gd case t challenge n insane delusin grunds. B. UNDUE INFLUENCE Think in terms f a. 1. Basic Idea Cntestant alleges that a third party effectively cntrlled the testatr s decisin-making prcess (caused the testatr t make the particular prperty divisin) 2. Required Prf Editr's Nte 3: The fllwing is the traditinal r majrity apprach t undue influence. Fr the Califrnia apprach, please refer t Sectin VI.B. f the Califrnia Wills utline. What are we lking fr? (testatr is vulnerable in sme way, such as a weakened intellect) (influencer is psitined t gain) (influencer has an pening t influence) (influence caused the result) Special case: Presumptin f undue influence when the influencer has a with the testatr 3. Burden Shift Nte 8: The cnfidential relatinship is ften prfessinal in nature, such as a dctr, lawyer, therapist, r familial. If the cntestant meets this burden, the burden shifts t the prpnent almst always the suspected influencer t shw by evidence that there was n undue influence. 4. Cnsequences If there was undue influence, the beneficiary is treated as if he r she the testatr t the extent the gift is in excess f the beneficiary s intestate share, if any. CA Wills 2017 Themis Bar Review, LLC 23

24 5. Drafter Rule Exam Tip 19: The key element f undue influence is causatin the suspect beneficiary exerted imprper influence that caused this strange distributin. In Califrnia, any will prvisin making a gift t the drafter f the will r her family is. Unless: The drafter is related t the testatr C. FRAUD Cntestant has the burden t shw that the beneficiary engaged in an unlawful at the time f the executin. 1. Elements Cntestant must shw that the beneficiary made the representatin with: The t deceive the testatr; and The f influencing the testamentary dispsitin. 2. Kinds f Fraud Exam Tip 20: As with an insane delusin r undue influence challenge, the misrepresentatin must have caused the testamentary dispsitin. a. Fraud in the Inducement Misrepresentatin causes the testatr t make a different will than the testatr wuld have therwise made. Example 51: T-Bne s sle heir, Bnnie, cnvinces T-Bne nt t execute a will in favr f his best friend Hank Mardukas by prmising that she will cnvey the prperty t Hank after T-Bne is dead. At the time, Bnnie has n intentin f cnveying t Hank. This is fraud in the inducement. b. Fraud in the Executin 3. Remedy Misrepresentatin as t the r f the will. Example 52: Knwing that T-Bne has pr eyesight and can t read his will, Bnnie prmises T-Bne that his will transfers all his prperty t his best friend Hank Mardukas. But the dcument actually transfers the prperty t Bnnie and her brther Clyde, in equal shares. T-Bne signs the will. This is fraud in the executin. A is the mst cmmn remedy fr fraud Themis Bar Review, LLC CA Wills

25 Exam Tip 21: Undue influence and fraud require an act f a third party, but an insane delusin arises in the mind f the testatr. N external act is necessary t shw an insane delusin. THE PROBATE PROCESS A. PROBATE AND ADMINISTRATION 1. The Prbate Prcess The first step is classifying all prperty as prbate r nn-prbate. Prbate prperty is prperty that passes by r. Nn-prbate prperty passes by an instrument ther than a will, including: Deed Trust Jint tenancy (with right f survivrship) POD Cntract 2. Why Prbate Exam Tip 22: Dn t frget abut intestate successin. If the decedent des nt have a will r the testatr s will is invalid, prbate prperty will still pass by intestate successin. The primary purpse f prbate is the rderly administratin f the decedent s estate. This includes: Prtecting and satisfying ; Quieting cntested titles and transferring titles t rightful hlder; Prtect the testatr s interest (against fraud, undue influence, etc.); and Efficiently handling Nte 9: Only thse wh stand t benefit financially as a will beneficiary r intestate heir have standing t cntest a will. 3. Basic Prbate Checklist Step 1: Identify whether prperty is prbate r nn-prbate. Wh takes the nn-prbate prperty? Everything else is prbate prperty. Step 2: Identify testate and intestate prperty. Is there a will? Is the will valid? Wh are the intended beneficiaries? Step 3: Is there any prperty nt devised by a valid will? If s, it will pass by intestate successin. CA Wills 2017 Themis Bar Review, LLC 25

26 B. FILING/JURISDICTION The cunty in which the decedent was at the time f death has jurisdictin ver the decedent s estate (bth real and persnal prperty in the cunty). If the decedent wns real prperty elsewhere, jurisdictin applies t that prperty. C. ABATEMENT If the estate des nt have enugh assets t satisfy the gifts in the will, the gifts will be in a specific rder. Unless the will says therwise, gifts are abated in the fllwing rder: D. WILL CONTESTS 1) prperty least prtected (first thing t be reduced) 2) Prperty in a residuary gift 3) General bequests t peple ther than relatives 4) bequests t relatives 5) Specific bequests t peple ther than relatives; and 6) Specific bequests t relatives Exam Tip 23: If they can be satisfied, demnstrative legacies are treated as gifts. Otherwise, they are treated as gifts. 1. Timing: Cntestant must challenge prbate within after prbate is pened r the claim is. 2. Standing: Only interested parties can cntest the will. E. CREDITORS Nn-claim statute: a creditr must make a claim n the decedent s estate within a certain time perid. If a claim is nt brught within that windw, the claim is. The persnal representative must prvide ntice t the creditrs F. FORFEITURE CLAUSES A n-cntest clause expressly stated in the will. It prvides that if a beneficiary cntests the will, he will lse his share under the will. Califrnia: these, thugh they are subject t strict cnstructin Only enfrced against cntests withut any Themis Bar Review, LLC CA Wills

27 G. PERSONAL REPRESENTATIVE Persn wh acts n behalf f the estate during the prbate prcess If appinted by the curt estate If named in the will estate Duties f the Persnal Representative Inventry,, and manage the estate Lcate and cntact interested parties, including Satisfy debts (including, burial expenses, and Distribute the remaining assets Clse the estate Duties wed by the Persnal Representative Persnal Representatives is a fiduciary and wes the duties f and Persnal representatives cannt engage in self-dealing and cannt d business with the estate Example 53: Decedent is an art cllectr. She appints her best friend, als an art cllectr, t serve as the administratr. The best friend wants t buy a piece f art frm the estate nt apprpriate, as this is self-dealing. The persnal representative is entitled t reasnable cmpensatin frm the estate H. General Advice Study yur way dn t wrry abut thers Stress is nt a bad thing let it mtivate yu Dn t be verwhelmed eat, rest, take a break! GOOD LUCK ON THE EXAM! [END OF HANDOUT] CA Wills 2017 Themis Bar Review, LLC 27

28 Themis Bar Review, LLC CA Wills