table of contentsorahte.com/black_letter/wills_a.pdforahteìgroup© second lookseries if a person...

oorraahhtteeììggrroouupp©©

Second Look Series™ WILLS & INTESTACY

TABLE OF CONTENTS

I. PROBATE …………………………...………………………………………….…….....1 A. GENERALLY ………………………………………………………………….….l

II. INTESTACY A. GENERALLY 1. Surviving Spouse: Domestic Partner ………………………………….…….1 B. ADVANCEMENTS ……………………………………………………………….3 1. Proof ………………………………………………………………..…………4 2. Value ……………………………………………………………….………….4 3. Survive ……………………………………………………..………………….4 C. SIMULATANEOUS DEATH …………………………...……………………….4 1. Uniform Simultaneous Death Act …………………………..……………….4 D. ADOPTION ……………………………………………………………………….5 1. Natural Parents Severed ……………………………………………………..5 2. Adoption by Estoppel …………………………………...……………………5 3. Half Bloods ……………………………………………………………………5 4. Nonmarital Children …………………………………...…………………….5 E. CONFLICT OF LAWS …………………………………….…………………….5 III. WILLS …....……………………………………………………………….......................6 A. FORMATION ……………………………………………………………………..6 1. Section 6110: Attested Wills ………………………………..………………..6 2. Section 6111: Holographic Wills ……………………...……………………..6 B. WILL CONSTRUCTION…………………...…………………………...…….....7 1. Intent of Transferor Controls …………………………………...…………..7 2. Interpretation ……………………………………………………….………..7 3. Document Understood as a Whole …………………...……………………..7 4. Integration ………………………………………………...………………….7 5. Incorporation by Reference …………………………………………………7 6. Acts of Independent Legal Significance …………………………………….8 7. Disposition of Limited Tangible Personal Property: Section 6132 …….….8 8. Pour-Over Wills …………………………………………………..………….8 C. CODICILS ……………………………………………..………………………….9 1. Republication …………………………………………………….………….10 2. Revocation of Codicils ……………………………...………………………10 D. REVOCATION ………………………………………………….………………10 1. Physical Act ……………………………………...………………………….10 2. Subsequent Will …………………………………..…………………………11 3. Divorce: Remarriage ………………………………….…………………….11 E. CHOICE OF LAW …………………………………………...………………….12 F. CONTRACT TO MAKE OR NOT MAKE A WILL …………………………12


Second Look Series™ G. ADEMPTION BY SATISFACTION ………………………………..…………13 H. ADEMPTION BY EXTINCTION …………………………………………….14 1. Specific ……………………………………………………………………..14 2. General ………………………………………………...…………………….14 3. Demonstrative ……………………………………...………………………..14 4. Residuary …………………………………………………..………………..14 I. FAMILY PROTECTION ……………………………………….………………14 1. Spousal Protection ……………………………….………………………….14 2. Child Protection …………………………………………….………………15 3. Distribution of Omitted Spouse: Child's Share …………………..……….16 J. RESTRICTIONS ON TESTAMENTARY DISPOSITION ………………..…16 1. Protection Regarding Community Property ………………….…………..16 2. Protection Regarding Quasi-Community Property ………………...…….16 3. Widow's Election ……………………………………………………..……..16 4. Unworthy Heirs of Beneficiaries ………………………...…………………16 5. Abuse of Decedent …………………………………………………..………17 K. ELIGIBLE TAKERS AND DISCLAIMANTS ………………….…………….17 1. Posthumous Children ………………………………………………………17 2. Disclaiming Interests ………………………………………………………..17 3. Lapse …………………………………………………...……………………17 4. Anti-Lapse Statute ………………………………………………...………..17 L. PROPERTY SUBJECT TO DISPOSITION …………………………………..18 1. After Acquired Property …………………………………….……………..18 2. Lien Exoneration ……………………………………...…………………….18 M. ABATEMENT RULES ………………………………………………………….18 1. Omitted Spouse, Child, Domestic Partner …………..…………………….19 2. Order of Abatement ………………………………………...………………19 N. TESTAMENTARY CAPACITY ………………………...……………………..19 1. Elements of Capacity ………………………………….……………………19 2. Consequences of No Capacity ……………………..……………………….19 O. FRAUD ………………………………………………………………...…………19 1. Types of Fraud ……………………………………………………….……..19 P. UNDUE INFLUENCE ………………………………………….……………….20 1. Generally ……………………………………………...……………………..20 2. Common Law Presumption ………………………………………………..21 3. California Statutory Presumption ………………………...……………….21 Q. INSANE DELUSION …………………………………………..………………..21 1. Generally ………………………………………………...…………………..21 R. MISTAKE ………………………………………………………………………..21 1. Mistake in Content ……………………………...…………………………..21 2. Mistake in Execution …………………………….…………………………22 3. Mistake in Inducement ……………………………………………………..22 4. Mistake in Description …………………………….………………………..22 5. Mistake in Validity of a Subsequent Testamentary Instrument: DRR ….23 S. WILL CONTEST ………………………………………………………….…….23


Second Look Series™ T. WILL SUBSTITUTE AND NONPROBATE TRANSFERS …………………23 1. Generally ………………………………………………………….…………23 2. Right of Survivorship …………………………...…………………………..23 3. Beneficiary Designation ………………………………………………...…..23


Second Look Series™

WILLS & INTESTACY 1

WILLS & INTESTACY

I. PROBATE

A. GENERALLY Probate is the court-supervised process following a person's death to see who gets what property and includes: 1. Proving the authenticity of the deceased person's will. 2. Appointing someone to handle the deceased person's affairs. 3. Identifying and inventorying the deceased person's property. 4. Paying debts and taxes. 5. Identifying heirs, and 6. Distributing the deceased person's property according to the will or, if there is no will, according to state law1.

II. INTESTACY

A. GENERALLY Intestacy is the condition of having died without a valid will. In the absence of a will or other valid estate planning documents, the deceased person's property will be distributed according to the state's intestacy statutes. Deceased can be intestate2 or partially intestate3. 1. Surviving Spouse/Domestic Partner a. Community Property Community property4 is the method of defining the ownership of property acquired during marriage, in which all earnings during marriage and all property acquired with those earnings are owned in common and all debts incurred during marriage are the responsibility of both spouses. Surviving spouse inherits the decedents one-half share of the community property. 1 That is: intestacy. 2 That is: have no will. 3 That is: have a will but it does not properly dispose of all their property. 4 Typically, community property consists of all property and profits acquired during marriage, except property received by inheritance, gift, or as the profits from property owned before marriage.


Second Look Series™ b. Quasi-Community Property Quasi-community property is a form of property owned by a married couple. If a couple moves to a community property state from a non-community property state, property they acquired together in the non-community property state may be considered quasi-community property. Quasi-community property is treated just like community property when one spouse dies or if the couple divorces. The surviving spouse inherits the decedents one-half share of the quasi-community property. Remember that surviving spouse already owned one-half of the community property and quasi-community property and thus has one-hundred percent ownership of each5. c. Separate Property In community property states, property owned and controlled entirely by one spouse in a marriage is that spouses' separate property. At divorce, separate property6 is not divided under the state's property division laws, but is kept by the spouse who owns it. The surviving spouse inherits decedent's separate property as follows: 1) All Decedents Separate Property If deceased had no surviving issue, parents, siblings, or issue of deceased siblings7. 2) One-Half Decedent's Separate Property If deceased had one child or issue of one deceased child, or had a parent, sibling, or their issue. 3) One-Third Decedent's Separate Property If deceased had more than one child, or one child and issue of one or more deceased child, or issue of two or more dead children. d. Remainder The remainder interest is used to divide up the property left after the surviving spouse takes their share or, if there is no spouse, we will divide up the entire estate under intestacy in the following order:

5 In situations where spouse dies intestate--without a will. 6 Separate property includes all property that a spouse obtained before marriage, through inheritance, or as a gift. It also includes any property that is traceable to separate property -- for example, cash from the sale of a vintage car owned by one spouse before marriage -- and any property that the spouses agree is separate property. 7 In other words: had no other heirs.



WILLS & INTESTACY 3

1) Issue of the Decedent8. 2) Decedent's Parents9. 3) Decedent's Siblings or their Issue10. 4) Grandparents or Issue of grandparents11. 5) Issue of Predeceased Spouse12. 6) Next of Kin13. 7) Former In-Laws or their Issue14. e. Escheat If no one can take, the deceased's intestate estate escheats15 to the state f. Property Distribution for Unequal Kinship 1) Per Capita Count heads of those living and distribute equally 2) Per Stirpes Start at the highest level and divide evenly among that level 3) §240 Begin your division on a level where there are living relatives16. Once you find the first generation of living issue, then it is distributed per stirpes. Remember a will can supersede §240 B. ADVANCEMENTS

8 In other words: children, grandchildren, or great-grandchildren. 9 That is: if one parent lives, she gets one-hundred percent of the remainder and if both parents are alive they split fifty/fifty. 10 In other words: brothers and sisters, and nieces and nephews. 11 In other words: aunts, uncles, cousins. 12 In other words: step kids. 13 That is: third cousins and if there are two equal collateral next-of-kin, the one through the decedent's nearest ancestor will take. 14 If equal degree of kinship, survivors take equally per capita. 15 That is: the forfeit of all property to the state when a person dies without heirs, descendants, or named beneficiaries. 16 In other words: skip any generations without living issue.


Second Look Series™ 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 contemporaneous17 writing by the decedent or by the heir indicating that the property was intended to be given as an advancement. 2. Value If the value is listed in the writing it is conclusive. Otherwise, it is valued at the fair market value18 at the time the transferee came into possession. 3. Survive If the beneficiary does not survive the decedent, the advancement will not be counted against beneficiaries' issues share. Remember, there is a presumption against advancements in California. C. SIMULATANEOUS DEATH The question is whether the proposed beneficiary died simultaneously with the decedent. For purposes of intestate succession19, a person who fails to live for five days, established by clear and convincing evidence after the decedent dies, is treated as though she predeceased the decedent and will lose claim to the property if the distribution of property is dependent on one person surviving the other. Remember that the law deems that the decedent’s issue, heirs, or spouses have outlived him, even if they do not satisfy the five-day survival rule, when the property would otherwise escheat to the state. 1. Uniform Simultaneous Death Act A standard set of laws, enacted by California and some other U.S. states, to deal with inheritance in the case that two people die simultaneously. The Act says that if two people die within five days of each other, each is considered to have predeceased the other unless a will or other document specifies otherwise. a. Community Property If both spouses die simultaneously, one-half of the community property is distributed as if the wife survived the husband, and the other half of the community property is distributed as if the husband survived the wife. b. Joint Tenants 17 In other words: occurring at the same time. 18 The amount for which property would sell on the open market. 19 That is: where there is no will as to the property.



WILLS & INTESTACY 5

If joint tenants die simultaneously, the tenancy is severed and the property is split evenly between their estates. c. Life Insurance Policy If insured and beneficiary die simultaneously the proceeds go to the alternative beneficiary if one. Otherwise, proceeds are paid to insured's estate. Remember that if the policy premiums are paid with community property or quasi-community property, and the insured and beneficiary are married, the proceeds are split evenly. D. ADOPTION Adopted children inherit from their adoptive parents and their adoptive parents' relatives. Likewise, the adopted parents and adopted parents' relatives inherit from the adopted child. 1. Natural Parents Severed Adoption severs the parent-child relationship for inheritance purposes unless; (1) the natural parent and adoptee lived together as parent and child or; (2) the natural parent was living with or married to the other natural parent at the time of the child's conception but died before the child's birth; or (3) the adoption was by a stepparent; or (4) after the death of either natural parent. 2. Adoption by Estoppel If a foster child or stepchild has been held out as the parent's own child they may be treated by a court as their descendant. 3. Half Bloods Half bloods20 inherit the same as the whole blood. 4. Nonmarital Children The California Probate Code provides for inheritance rights where there is a parent- child relationship. A presumption of a parent-child relationship with respect to the father arises where; (1) the father is named on the birth certificate; (2) promises to pay child support; (3) ordered to pay child support; (4) openly holds out the child as his own; or (5) child born within three-hundred days of the marriage or attempted marriage. E. CONFLICT OF LAWS The law of the decedent's domicile21 controls succession to personal property; succession to real property is governed by the law of the situs22.

20 The relationship between two people who have one parent in common. 21 The state in which a person has or intends to maintain permanent residence, or the state in which a business locates its headquarters. Domicile governs such matters as the state in which a deceased person's estate is probated,



III. WILLS A. FORMATION 1. Section 6110 - Attested Wills To be valid, a will must be (1) signed23 by the person who made it24, (2) dated, and (3) witnessed by two people25 (4) during the testator's lifetime. a. Interested Witnesses26 Under California law, unless there are two27 disinterested endorsing witnesses a presumption of undue influence, duress or fraud is created. If a devise fails because of failure to rebut the presumption, the interested witness will receive her intestate share, if any. Remember, the testator must have the present intent to make an instrument her will. 2. Section 6111 - Holographic Wills A will that does not comply with Section 611028 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions29 are in the handwriting of the testator. a. Testamentary Intent Need not be on the face of the will or in the testator's handwriting. If presented with a series of letters you must analyze whether they constitute a will under integration, or are just a list. Is there a showing of intent based on the writing as a whole? b. Capacity If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

where a party can begin divorce proceedings, and whether there is "diversity of citizenship" between two parties that may give federal courts jurisdiction over a lawsuit. A person may have many residences but only one legal domicile. 22 Latin for location, be it where the crime or accident took place or where the building stands. 23 Anywhere in the document. Nicknames are ok, X is ok if testator is illiterate and a third person in testator's presence and at her direction is ok, as well by a conservator pursuant to a court order. 24 That is: the testator. 25 Witnesses must be present at the same time and witness either the signing or testator's acknowledgement of signature and understanding that they are signing as witnesses to the testator's will. 26 That is: a witness who is a beneficiary under the will. 27 Or more. 28 Attested will. 29 That is: gifts made and beneficiaries named.



WILLS & INTESTACY 7

c. Date A date is not required. But, if the omission of the execution date results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will. d. Extrinsic Evidence Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to Section 6110 or 6111, or to determine the meaning of a will or a portion of a will if the meaning is unclear. B. WILL CONSTRUCTION 1. Intent of Transferor Controls Extrinsic evidence can be brought in to establish intent. 2. Interpretation There is a presumption that all language in a testamentary instrument has some meaning - no superfluous language - and against intestacy of failure of the transfer. 3. 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. 4. Integration Refers to which papers make up a will. a. Intent Testator must have intended for the papers in question to be a part of the will. b. Presence Papers must be actually or physically present at the time of execution30. c. Proving Integration Integration may be established by (1) Physical connection among all the pages31 or (2) A logical connection32.

30 For example: Testator goes to sign the will. However, testator wants a page redone. Lawyer promises it will be typed and inserted the next day. Testator signs and then dies. New page will not be probated because it was not present. The old page also cannot be probated because testator did not intend it to be part. 31 That is: they are stapled together. 32 That is: the last word on page one flows into page two.


Second Look Series™ 5. Incorporation by Reference In documents, to include language from another document by referring to it (rather than repeating it). For example: Plaintiff incorporates by reference all of the allegations contained in the First and Second Causes of Action set forth above. In order to establish incorporation by reference the following elements must be met: a. A document or writing b. In existence when the will is executed c. Document must be clearly identified in the will, and d. Testator must have intended to incorporate the document into the will33. Note that the document incorporated does not have to be valid34. 6. Acts of Independent Legal Significance Under the doctrine of acts of independent significance, a testator can change the disposition of his property without changing the will. It permits a testator to change the provisions of the will without having to execute a codicil. The act provides that as long as the act referenced in the will has its own significance independent of its effect upon testator’s probate property, the referenced act can control without the testator having to execute a codicil. This doctrine is applied where a testator who controls the membership devises assets to a class of beneficiaries. a. Parol Evidence The court will use parol evidence to fill in the blanks35. 7. Disposition of Limited Tangible Personal Property - Section 6132 As of 2007 and for dispositions of tangible personal property36 not exceeding $5,000 each with an aggregate maximum value of $25,000, a writing may be probated if the disposition is (1) Referred to in the will and (2) Describes the items and beneficiaries with reasonable certainty. Remember to discuss all three will construction theories; Incorporation by Reference; Acts of Independent Significance; and Section 6132.

33 The intent will be imputed if a, b, and c are met. 34 In other words: it can be an invalid deed. 35 For example: "I leave all my property to the people who I employ at my death." Even without the will these people would exist because people hire workers for reasons other than to validate a devise. 36 Excluding cash and business property.



WILLS & INTESTACY 9

8. Pour-Over Wills A will that "pours over" property into a trust when the will maker dies. Property left through the will must go through probate before it goes into the trust. There are three methods for the probate proceeding to validate the pour-over provision, as follows: a. Incorporation by Reference In documents, to include language from another document by referring to it (rather than repeating it). For example: Plaintiff incorporates by reference all of the allegations contained in the First and Second Causes of Action set forth above. In order to establish incorporation by reference the following elements must be met: (1) A document or writing (2) In existence when the will is executed (3) Document must be clearly identified in the will, and (4) Testator must have intended to incorporate the document into the will. Note that the document incorporated does not have to be valid37. b. Acts of Independent Legal Significance Under the doctrine of acts of independent significance, a testator can change the disposition of his property without changing the will. It permits a testator to change the provisions of the will without having to execute a codicil. The act provides that as long as the act referenced in the will has its own significance independent of its effect upon testator’s probate property, the referenced act can control without the testator having to execute a codicil. This doctrine is applied where a testator who controls the membership devises assets to a class of beneficiaries. c. Uniform Testamentary Additions to Trust Act - UTATA The pour-over provision will be valid by statute if there is a (1) Valid Trust (2) in existence at or prior to execution of the will. Remember to discuss all three pour-over will theories; Incorporation by Reference; Acts of Independent Significance; and UTATA. C. CODICILS

37 In other words: it can be an invalid deed.


Second Look Series™ A codicil is a supplement or addition to a will. It may explain, modify, add to, subtract from, qualify, alter, or revoke existing provisions in a will. Because a codicil changes a will, it must be a valid attested or holographic will. 1. Republication A codicil republishes a will. This means that is causes the will to speak from the date the codicil is executed. Remember to analyze whether Dependent Relative Revocation38 ("DRR") is in play. 2. Revocation of Codicils a. Under common law if testator executes a will, then executes a codicil, and then revokes the codicil, there is a rebuttable presumption that testator intended to revoke only the codicil. b. Under common law, if testator executes a will, then executes a codicil, and then revokes a will, there is a rebuttable presumption that testator intended to revoke the will and the codicil. c. Under modern law, look to the testator's intent. D. REVOCATION Cancellation of a statement, document, or offer not yet accepted, or cancellation of a contract by the parties to it. For example, a person can revoke a will and a government agency can revoke a license. If not revoked properly, the will is still valid. In order to validly revoke a will the testator must either: 1. Physical Act Perform a (1) negative physical act upon the will by burning, tearing, obliterating or otherwise damaging or destroying it (2) by the testator or someone at her direction (3) with simultaneous intent that the will be partially or full revoked. a. Crossing out or Lining Through - Cancelling A testator cannot increase a co-beneficiary's gift by crossing out another's co- beneficiary's devise39.

38 In general, a will once revoked cannot be “unrevoked” or revived unless the will is reexecuted with the formalities required of wills. There are some exceptions to this rule that once revoked, a will cannot be revived. One of those exceptions is the doctrine of dependent relative revocation. The doctrine of dependent relative revocation creates a presumption against revocation in circumstances where the testator cancels or destroys a will with the present intention of making a new one immediately, and the new will is invalid for any reason. The theory is that in such circumstances the testator would have preferred the old will to intestacy.



WILLS & INTESTACY 11

Look to DRR for cancellations that do not qualify as a holographic will. b. Writing between the Lines - Interlineations The act of handwriting between the lines of a document, usually to add something that was omitted or thought of later. A handwritten addition to a typed will that does not qualify as a holographic codicil may be a revocation. (1) When the writing between the lines is less than the cancelled provision, DRR will not be used and the beneficiary will take nothing. c. Destruction of Duplicate Will If testator or someone in her presence and at her direction revokes by physical act one of the duplicate originals40, the other duplicate is also revoked as a matter of law. d. Mutilated Wills If a will is found in a mutilated condition at testator's death and was last seen in testator's possession, there is a rebuttable presumption that the testator mutilated the will with the intent to revoke it. 2. Subsequent Will A will may be revoked by an ensuing will either expressly or impliedly. a. Express Revocation Will one can be expressly revoked41 by a provision in will two. b. Implied Revocation Will one can be impliedly revoked by will two, which distributes testator's entire estate. There is nothing for will one to act upon. c. Non-Automatic Revival If a later will revokes an earlier will and then the later will is revoked the first revoked will is not automatically revived. It will be revived only on evidence that the testator intended42 to revive it.

39 For example: I leave my house to X and Y. Testator then crosses out Y. X will still only get one-half, with the other one-half going to the residuary or by intestacy. 40 Not a photocopy. 41 For example: "I revoke all previous wills." 42 For example: a statement in will.


Second Look Series™ 3. Divorce/Remarriage a. Former Spouse Unless the will expressly provides otherwise, the former spouse will lose all rights under the will or intestacy upon divorce, dissolution, or annulment. b. Step-Children, former In-Laws The step-children and former in-laws devise will not be affected unless expressly provided otherwise. Remember that the preceding does not apply to legal separations. E. CHOICE OF LAW The writing can be admitted to probate in California if the will: 1. Complies with the formalities43 of California law. 2. Complies with the formalities of the place executed. 3. Complies with the formalities of the place of testator's domicile44 at execution. F. CONTRACT TO MAKE/NOT MAKE A WILL A contract to make a will, not make a will, or die intestate can be enforced in four ways: 1. The will states the material provisions45 of the contract. 2. A writing signed by the decedent evidencing the contract. 3. A contract referenced in the will plus extrinsic evidence proving the terms of the contract. 4. An agreement with the beneficiary or third party for the benefit of the claimant that is enforceable in equity46. 43 That is: formalities of attested or holographic wills. 44 That is: the state in which a person has or intends to maintain permanent residence, or the state in which a business locates its headquarters. Domicile governs such matters as the state in which a deceased person's estate is probated, where a party can begin divorce proceedings, and whether there is "diversity of citizenship" between two parties that may give federal courts jurisdiction over a lawsuit. A person may have many residences but only one legal domicile. 45 For example: Testator's will states "In consideration of the $5k A gave me, I have promised to devise my automobile to A and I hereby do devise." 46 Promise Reasonably Inducing Action or Forbearance; Promissory estoppel serves as a “consideration substitute” in contract law that renders certain promises otherwise lacking in consideration binding and enforceable. In such cases, the promisee’s reliance is treated as an independent and sufficient basis for enforcing the promise. Promissory estoppel can be viewed as a legal device that prohibits the promisor from denying the existence of a contract for lack of consideration.




a. The terms of the agreement must be satisfied by clear and convincing evidence47. Note that joint wills do not create a presumption of a contract not to make or revoke a will. 5. Accrual of Cause of Action Cause of action accrues when decedent dies except for instances where the promisor is engaging in fraudulent conduct on the promisee. 6. Remedies Available to Promisee a. Damages Plaintiff can sue defendant's estate. b. Specific Performance Plaintiff can seek to force the executor to comply with the contract. c. Constructive Trust48 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. G. ADEMPTION BY SATISFACTION Property given by a transferor during her lifetime to a person is treated as a satisfaction of at-death transfer if the: 1. Testator declares in a contemporaneous writing that the gift is a satisfaction. 2. The beneficiary acknowledges in a writing the satisfaction 3. The testator's will itself provides for a deduction of the inter-vivos gift. 4. Property given in satisfaction is the same property that is the subject of a specific gift to the beneficiary. This is ademption by satisfaction, because property no longer exists in testator's estate.

47 Highly probable. 48 That is: a relationship that arises when someone has wrongfully obtained title to or possession of assets and has a legal duty to deliver them to the rightful owner. Unlike other common trusts, a constructive trust is a temporary measure ordered by a court to correct a wrong.


Second Look Series™ Remember, if the value of the satisfaction is expressed in a contemporaneous writing of testator or the beneficiary, the value is conclusive. In all other cases, the property is valued at its fair market value49 measured at the time the transferee came into possession. H. ADEMPTION BY EXTINCTION Arises when there is no longer anything to convey because it has been sold, given away, or destroyed. Property can be classified as (1) Specific (2) General (3) Demonstrative and (4) Residuary 1. Specific Gift of a particular50 item. a. Common Law Under common law a specific gift failed if testator did now own the property at testator's death. b. Modern View Under the modern view, intent is of key importance in determining whether testator intended for the gift to fail. The recipient has the right to receive the specific gift if testator did not intend for the gift to fail. 2. General Payable out of the general assets51 of the estate. 3. Demonstative A demonstrative legacy bears some of the characteristics of both general and specific legacies. It is similar in nature of a general legacy by bequeathing a specified amount and of the characteristic of a specific legacy by pointing out the fund from which the payment is to be made. It differs from a specific legacy in the particular that if the fund pointed out from which the payment is to be made fails, resort may be had to the general assets of the estate. 4. Residuary A person who receives any property by a will or trust that is not specifically left to another designated beneficiary. For example, if Phoebe makes a will leaving her home to Rachel and the remainder of her property to Monica, then Monica is the residuary beneficiary. I. FAMILY PROTECTION

49 That is: the amount for which property would sell on the open market. 50 For example: a unique item such as real estate or antique automobile. 51 For example: $5,000 of publicly traded stock.




Family protection law determines whether family members who have been left out of wills and trusts can still recover something to prevent them from being destitute. 1. Spousal Protection A surviving spouse who married the decedent after execution of all testamentary instruments and is not provided for in any instrument, gets to take a share of the decedent's property. a. Share Given (1) All of Community Property The spouse gets her half and her deceased husbands half. (2) Separate Property Capped at one-half Separate property as if the testator dies intestate and capped at one-half. b. Exceptions (1) Explicit Disinheritance General phrase not enough - must expressly contemplate marriage or future spouse. (2) Transfer Out of Testamentary Estate If spouse is provided for outside52 of the testamentary instrument. (3) Valid Waiver A spouse can elect to waive her share of the estate provided that there is a (1) written and signed waiver; (2) full disclosure of decedent's finances; and (3) independent counsel by the waiving spouse. Remember that domestic partners generally have the same rights as married couples. Partners must be of the same sex or of the opposite sex and at least one partner is at least sixty-two years of age and filed a declaration of domestic partnership with the state. 2. Child Protection Pretermitted children born or adopted after all testamentary instruments53 are executed and who are not provided for in any instrument will take her intestate share. a. Exceptions

52 For example: a large insurance policy. 53 That is: a will, codicil, or trust.


Second Look Series™ A pretermitted child will not take their intestate share if there was (1) an explicit intent of exclusion; (2) sufficient non-probate asset transfer; or (3) grant of substantially all property to parent. b. Unknown Children If decedent has children that they do not know about they are deemed to be pretermitted even if they are alive at the time of execution of the will. c. Republication of Will by Codicil Republication without mentioning the pretermitted child can destroy a child's pretermitted status and can treat her as being intentionally excluded. 3. Distribution of Omitted Spouse/Child's Share Once determined a spouse or child has been omitted she will receive her share first from (1) any residuary estate, then (2) pro rata from all other54 devises. J. RESTRICTIONS ON TESTAMENTARY DISPOSITION 1. Protection Regarding Community Property The testator can dispose of only her one-half share of the community property 2. Protection Regarding Quasi-Community Property The testator can dispose of only one-half of the quasi-community property. a. An inter vivos transfer by the decedent of the quasi-community property to a third party without consideration is allowed. Remember that the surviving spouse has a mere expectancy in the quasi-community property and not a property interest. 3. Widow's Election The widow may either (1) accept the gift given in testator's will55 or (2) she can renounce all benefits under the will and confirm her right to one-half the community property and quasi-community property56. 4. Unworthy Heirs or Beneficiaries a. Killer of Decedent Those who feloniously and intentionally kill the decedent cannot take any benefits under the will, intestacy, or insurance benefits.

54 That is: specific, general and demonstrative. 55 Referred to as taking: "under the will". 56 Referred to as taking: "against the will".




(1) Conviction or guilty plea is conclusive. In all other cases, the probate court determines guilt by a preponderance of the evidence. (2) In joint tenancy situations there will be severance but the killer keeps her one- half share. Remember, the killer is deemed to have predeceased the decedent and neither the killer nor her issue will take. 5. Abuse of Decedent A person who abuses the decedent will be treated as though she predeceased the decedent if it is established by clear and convincing evidence, as established by: a. Physical abuse or neglect of decedent who was an elder or dependent adult and; b. Acted in bad faith and; c. Reckless, oppressive, fraudulent or malicious and: d. The decedent from the time of the acts until their death was substantially unable to manage her financial resources to resist fraud or under influence. K. ELIGIBLE TAKERS AND DISCLAIMANTS 1. Posthumous Children A posthumous child is one conceived during lifetime of the testator, but born after death. Posthumous children are deemed beneficiaries57 of the testator's will. 2. Disclaiming Interests A refusal of an heir or devisee to take a property interest given to them is allowed58. The disclaimer must be in writing signed by the disclaimant and state the interest to be disclaimed. Note that a disclaimer is not valid to avoid the IRS, tax liens or Medicaid liens. 3. Lapse If the beneficiary is dead at the time the will is executed, the gift is void. If the beneficiary dies after the testator executes her will but before the testator dies, the gift to the beneficiary lapses. 57 Or heirs if under intestate secession. 58 For example: tax purposes or to keep creditors at bay.


Second Look Series™ Unless a contrary intent is expressed in the will, the gift falls into the residue, if there is one. Otherwise, the gift passes by intestacy. 4. Anti-Lapse Statute State anti-lapse statutes apply only if the devisee who predeceased the testator was kindred59 of testator, or kindred of a spouse or domestic partner and this predeceased devisee leaves issue. In such a case, the issue of that predeceased will step in the shoes of that predeceased devisee and take per intestacy rules. L. PROPERTY SUBJECT TO DISPOSITION 1. After Acquired Property After acquired property is property that was acquired after the will was executed. A will passes all property testator owned at death, including after-acquired property. a. Increase after Testator's Death and During Probate (1) Specific Devises All increases60 go to the specific devise beneficiary. (2) General Devises No increase goes to the general devise beneficiary. Exception: General pecuniary gifts earn interest if not distributed to the estate within one year of testator's death. 2. Lien Exoneration a. Under Common Law Under common law, if testator devised a specific gift subject to an encumbrance61 for which testator was personally liable62, the executor was required automatically to pay off the debt before passing the property to the beneficiary. b. Under California Law Under California law, if testator devised a specific gift subject to an encumbrance for which testator was personally liable, the property passes without exoneration63. 59 In other words: a blood relative of the creator of the will, or a blood relative of the creator of the will’s former spouse or domestic partner. Those related by blood, as distinguished from those related only by marriage. 60 That is: rents, stock splits, stock dividends. 61 For example: a mortgage. 62 That is: liability that an individual assumes when she is directly involved in the occurrence and cannot defer the liability to another person or entity.




M. ABATEMENT RULES Abatement arises when there are insufficient funds to pay debts and devises in a will. 1. Omitted Spouse, Child, Domestic Partner First abate all property not disposed of by will or trust and then abate from all beneficiaries in proportion to the value of the gift received. 2. Order of Abatement If the testator is silent as to the order of abatement gifts abate in the following order: a. Property not distributed in the will. b. Residuary gifts. c. General gifts to non-relatives. d. General gifts to relatives. e. Specific gifts to non-relatives. f. Specific gifts to relatives. N. TESTAMENTARY CAPACITY 1. Elements of Capacity At the time of will execution, the testator must (1) be 18 years of age (2) understand the extent64 of her property (3) know the natural objects of her bounty65 and (4) know the nature of her act66. 2. Consequences of No Capacity: If testator if deemed to have no capacity entire will is invalid and property will pass by intestate succession unless testator had a valid prior will that would have been revoked by the second will, then the first will be probated, because without capacity the second could not revoke the first. O. FRAUD 1. Types of Fraud

63 In other words: subject to mortgage. 64 People who cannot identify their assets, or who try to bequeath property that they have never owned or do not currently own, clearly lacking this component of testamentary capacity. 65 That is: spouse, issue, parents, domestic partner. 66 In other words: must know she is executing a will.


Second Look Series™ There are three types of fraud: (1) fraud in the execution; (2) fraud in the inducement and; (3) fraud in preventing testator from revoking the will. In order to recover for fraud the following six elements must be proven: (1) Misrepresentation of a material fact; (2) Scienter - known to be false by the wrongdoer when made; (3) Intent - for the purpose of inducing action or inaction; (4) Actual reliance - in fact induces the action or inaction desired; (5) Justifiable reliance - not a statement of opinion; (6) Damages a. Fraud in the Execution Misrepresentation67 as to the nature or contents of an instrument. (1) Consequences The entire will is invalid. The property passes by intestate succession unless there is a prior will that was validly executed (DRR). b. Fraud in the Inducement The use of deceit or trick to cause someone to act to her disadvantage, by misrepresentation of facts68 that influence the testator's motivation. (1) Consequences Only that part of the will that is affected by the fraud is invalid. As to that part, the court has three options: (1) give the property to the residuary devisees, if any; or (2) if there is no residue, to the heirs at law by intestate succession; or (3) make the heirs or devisees a constructive trustee. c. Fraud in Preventing Testator from Revoking the Will (1) Consequences The court will not probate the will, and thus the property goes to the heirs. Court will also declare the heir a constructive trustee, who has a duty to transfer the property to the intended beneficiary. P. UNDUE INFLUENCE 1. Generally Undue influence is mental or physical coercion that deprives the testator of her free will, causing her to substitute another person's desire for her own. Undue influence requires that: (1) the person has an opportunity to influence; (2) the testator be susceptible to influence; (3) the other person be disposed to influence; and (4) the provisions of the will are unnatural.

67 In other words: someone forges testator's signature or testator signs the will thinking it is something else. 68 In other words: the wrongdoer’s representation affect the contents of testator's will.




Keep in mind that mere nagging, threatening, begging or pleading do not constitute undue influence. The free will of the testator must be destroyed. 2. Common Law Presumption At common law, a presumption of undue influence arises if: (1) the beneficiary participated in executing the will; (2) the beneficiary was in a confidential relationship with the testator; (3) the provisions are unnatural. When a presumption of undue influence arises, the beneficiary has the burden of proof. a. Confidential Relationship A confidential relationship includes the attorney-client and doctor-patient relationships. Although a husband-wife is considered confidential for some purposes, a gift to a spouse does not raise a presumption of undue influence. 3. California Statutory Presumption By statute, California law generally invalidates a gift to: (1) the drafter of the instrument69; (2) associate of the drafter; (3) transcriber in a fiduciary relationship; and (4) a care custodian70 of a dependent71 adult. a. Exceptions There are four exceptions as follows: (1) the instrument is reviewed by an independent attorney; (2) the court determines that the transfer was not the product of wrongdoing, by clear and convincing evidence: (3) the testator lives with, is married to or related to the drafter; (4) the transferee is a charitable organization. b. Effect of Unrebutted Presumption A person disqualified under this provision is deemed to have predeceased the transferor without spouse, issue, or domestic partner. Q. INSANE DELUSION 1. Generally A delusion is a conception of reality that has no foundation in reality. An insane delusion is a delusion to which the testator adheres when a rational person in her situation could not have drawn the conclusion reached by the testator. A person with testamentary capacity may have an insane delusion that can invalidate a will in whole or in part. A will can be set aside for an insane delusion only if the delusion caused the disposition. R. MISTAKE

69 In other words: will or trust. 70 May be a professional - RN or non-professional - friend. 71 That is: someone older than sixty-four years or at least eighteen years with a physical or mental disability.


Second Look Series™ 1. Mistake in Content Wrong beneficiary is named or the wrong gift is made a. Mistake in Omission Name left out of the will or items left out. Courts will not rewrite wills, but possible relief under DRR. b. Mistake in Addition Name or items accidently added72. Court may strike the addition, because the court is not rewriting, just excising part. 2. Mistake in Execution Testator signs the wrong document. If testator signs her will believe it is a non-testamentary instrument it will not be probated because testator did not intend the document to be a will. If there are two testators that each leave everything to one another and they accidently sign each other's will the court may reform the wills, especially if the testators are spouses or domestic partners 3. Mistake in Inducement A particular gift is made or not made on the basis of testator's erroneous beliefs73. No relief will be given unless both the mistake and what testator would have done but for the mistake appears on the face of the will. 4. Mistake in Description No one or nothing fits the description or two or more persons or things fit the description. a. Latent Ambiguity On the face of the will there is no problem. Introduce parol evidence twice. Once to establish the ambiguity74 and again to determine testator's intent.

72 For example: to A and B - only meant to A. 73 For example: believes X is dead, otherwise she would leave a gift. 74 For example: to cousin John, two cousins named John.




b. Patent Ambiguity Ambiguity is apparent on the face of the will. Traditionally there is no remedy. Modernly parol evidence can be introduced to determine testator's intent. 5. Mistake in Validity of a Subsequent Testamentary Instrument - DRR Dependent Relative Revocation75: If the testator purports to revoke a prior will or a portion thereof upon a mistaken belief that the latter will or codicil effectuates her intent, the revocation is ineffective if the testator would not have revoked the substantially similar prior will had she known the truth. The court will look to the testator's intent to render revocation ineffective. The wills must be very similar, so that we know that testator wold prefer to be probated instead of intestacy. S. WILL CONTEST A will contest is a lawsuit challenging the validity of a will or some of its terms after the person who made the will has died. The only people who can challenge a will are those who are specifically named in the will, were named in a previous will or would have received a share of the estate under intestacy laws. The most common legal grounds for challenging a will are undue influence by someone close to the deceased person, the deceased person's lack of capacity when the will was signed, improper execution (signing and witnessing) of the will, or fraud (forgery, for example). T. WILL SUBSTITUTES AND NONPROBATE TRANSFERS 1. Generally A will substitute is a method of transferring property outside of your will with the purpose of avoiding the probate process. 2. Right of Survivorship Community property with right of survivorship passes directly to the survivor spouse outside of probate when the other spouse owner dies. 3. Beneficiary Designation Naming of a beneficiary can also be considered a will substitute. Examples of these include: 75 For example: T executes Will one, then executes Will two and revokes Will one thinking Will two effectuates his intent. T is mistaken because Will two is invalid or fails to effectuate her intent.


Second Look Series™ a. Payable-on-Death (POD) Accounts This involves depositing funds for the benefit of another, payable on the death of the original depositor. A payable-on-death designation on a United States bond is valid. A totten trust76 is also valid. b. Transfer-on-Death ("TOD") Accounts Similar to a payable-on-death account, except it is used for individual stocks or a stock account. c. Contract Provisions Effective at Death This can include life insurance, annuity contracts, qualified plans, 403(b) plans, 457 plans and IRAs, where you designate a beneficiary to whom payments are made after your death. The terms of the policy control. d. Deeds of Title In some states a valid deed may be used to pass a present interest to the grantee during your lifetime to avoid testamentary formalities. (1) Deed Delivered to Grantee A deed is effective if delivered during the grantor's lifetime even though the grantor reserves a life estate. Oral conditions are void. If conditions are written, the following conditions are valid on policy grounds: (1) the grantee must survive the grantor; (2) the deed will not take effect until the grantor's death; and (3) the deed is revocable by the grantor. (2) Deed Delivered to Escrow Agent A deed delivered to an escrow agent with oral instructions to deliver the deed to the grantee on the grantor's death is valid Exceptions: If the escrow is revocable and the grantor can get the deed back, the escrow fails. If the escrow agent is directed to return the deed to the grantor if the grantee dies first, the escrow fails because no interest passed. When faced with these types of deeds analyze the doctrinal issue of whether the grantor intended to create a present interest then discuss the Statute of Frauds77 - for lifetime transfers, or the Statute of Wills78 - for testamentary transfers. 76 All the beneficiaries named in the account have to do is present a valid certificate of death of the settlor in order to claim the money. 77 Under the statute of frauds, a lawsuit cannot be maintained on certain classes of contracts or engagements unless they are in writing and signed by the party to be charged 78 Under the statute of wills, a will must be (1) signed by the person who made it, (2) dated, and (3) witnessed by two people (4) during the testator's lifetime.




e. Funded Living Trusts

Revocable living trusts are the most common form of will substitutes. These trusts are funded during your lifetime to avoid probate at death. In California, a living trust is valid even if the settlor is the sole trustee and sole beneficiary so long as the trust provides for successor beneficiaries following the settlor's death.

table of contentsorahte.com/black_letter/wills_a.pdforahteìgroup© second lookseries if a person...

Documents