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Wills Trusts and Estates outline [UC Davis]
By: Penny22 Date: February 17, 2011, 10:13 pm
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Trusts, Wills, & Estates Outline
1. Introduction
1. Definitions
1. Testator - a person who has written a will
2. To die testate - to die with a will
1. The persons designated to take property
under a will are known as devisees or legatees
2. Devise – to dispose of real property
3. Legacy – disposition of money
4. Bequest – disposition of personal
property other than money
3. To die intestate – to die without a will
1. The property is divided among the
decedent’s heirs as determined by the jurisdiction’s statute on
intestate succession
4. Non- probate property
1. Property that passes at death under a
contract, deed, or a trust
2. Won’t be affected by the terms of a will
but rather by the terms of the various forms of designation
3. Classical example: insurance policy
4. Other examples:
1. JTWROS property
2. Pensions
3. 401Ks
4. IRAs
5. POD – pay on death account
6. TOD – transfer on death account
5. Probate property
1. Property you own at the time of your
death
2. A will is a statement of what a person
wants to happen to their probate property
3. Ex. $100 bill
2. General Principles
1. Killers can’t keep the property they would
have received through their misdeeds
1. Constructive trustee – has to pass
property along to next designee
2. People thinking about a will and estate
planning really need 3 pieces of paper
1. A paper to dispose of his property at
death
1. Will
2. Living trust
2. A paper to allow another to manage his
property during life
1. Durable power of attorney
2. Living trust
3. A paper to allow another to manage his
body and his health during life
1. Living will
2. Health care power of attorney
2. Intestate Succession
1. Introduction and Representative Statutes
1. The intestate succession statute is the state
drawn will
1. Tells you what to do with a decedent’s
probate property when there is no will
2. Often written to give effect to the
probable intent of the decedent.
3. When someone dies, ordinarily there has
to be probate property in order to talk about intestacy
1. If there’s no probate property,
there’s no reason to discuss intestacy
2. When does intestacy matter?
1. When there is no will
2. When there is a will but the will does
not tell us what to do
1. When the will doesn’t speak to the
situation
3. Intestate succession is often important for
determining who has standing to contest a will
1. If the contestant would be entitled to
take part of the estate by intestate succession, the contestant
would have standing to contest
2. Otherwise, the contestant would have
standing only if he had been the beneficiary of a prior will
2. The Share of the Surviving Spouse
1. Community property
1. The half that the dead husband owned
would go to the surviving spouse
2. The other half was already owned by the
surviving spouse so now she owns the whole thing
2. Separate property
1. If there is no issue, parents, or issue
of parents, the surviving spouse will take it all
2. If there is one child, parents, or issue
of parents, the spouse gets half of the separate property
3. If there is more than one child, the
spouse gets a third
3. The Share of the Lineal Descendants
1. When an intestate decedent is not survived by
a spouse, decedent’s lineal descendants (assuming decedent has
lineal descendants) generally succeed to the entire estate
2. When an intestate decedent is survived by a
spouse, the lineal descendants succeed to that portion of the
estate which does not pass to the surviving spouse.
1. Any living descendant of the decedent
cuts off the right of the descendant’s own children to inherit
3. Strict “per stirpes” distribution
1. Divide decedent’s estate at the
generation of children – the generation closest to the decedent
– whether or not any children were actually living at the death
2. If decedent had 3 kids, the estate will
be divided into three shares regardless of whether the three
kids are still alive.
4. Modern “per stirpes” distribution
1. Divide decedent’s property at the
closest generation to the decedent in which there is at least
one descendant living
2. If the kids are all dead, go down to the
grandkids level and divide equally at that level
4. The Share of Ancestors and Collateral Heirs
1. Inner circle
1. Surviving spouse
2. Issue
3. Parents
4. Sibs
5. Nieces and nephews
6. Grandparents
7. Issue of grandparents
8. Issue of a predeceased spouse
2. Ancestors cut off descendents in the inner
circle, once they are both in a category qualified to take
(issue)
3. If someone dies intestate with no “inner
circle” relatives, then in CA, the estate goes to the “outer
circle” relatives or next of kin
1. Outer circle = next of kin
2. Several systems for determining degree
of consanguinity
1. Civil law system
1. Count up to the common
ancestor and down to the claimants
2. Each step is a degree
3. Those of equal degree take
equally
2. Modified civil law system (CA
uses)
1. Do the same thing
2. Eliminate those who claim
through a more remote ancestor
4. If there’s no will, no traditional inner
circle relatives, no findable outer circle relatives (next of
kin), then we return to the CA inner circle and property goes to
the former in-laws
5. If some states, if you run out of inner circle
relatives, the property escheats
1. Escheat is when the decedent’s property
passes to the state because there is no will or other
dispositive instrument and no intestate takers under the local
statute as it is applied
5. Defining the Modern Family: Halfbloods, Adoptees,
and Non-marital Children
1. Halfbloods
1. Two people share one parent, but not the
other
2. The modern trend is to treat halfbloods
equally with wholebloods
2. Adoption
1. Common law did not recognize adoption
2. Created entirely by statute
3. In order to cut all ties between
adoptive children and their natural families, for intestate
succession purposes, adopted children were to be treated only as
children of their adoptive families
4. Problem when adoption is by stepparents
5. Adoptions
1. Stranger adoptions – traditional
adoption
2. Stepparent adoption
3. Relative adoption
4. Adult adoptions
1. Brittin approves adult
adoption in a fairly Leave It to Beaver situation
2. Adult adoptions for crass
financial reasons are usually rejected
5. Courts tend not to approve people
adopting their gay partners
3. Equitable adoption
1. Children are raised by adults who are
not their natural parents, and who have taken no formal steps to
adopt them
2. Doctrine rests on the fiction that when
a caretaker takes a child into her home, she impliedly agrees
with the child’s natural parents that she will adopt the child
4. Non-marital children
1. Illegitimate children can inherit
through their mothers
2. In order to inherit through their
fathers, they must have proven paternity before the death of the
father
5. Afterborn heirs
1. Typically take in intestacy
6. Simultaneous Death
1. In order to take by intestate succession, an
heir must survive the decedent
2. Where there is a simultaneous death (or under
circumstances where you can’t tell), then the claimant is
presumed to die first and then s/he loses
3. § 6403, which applies to separate property, in
intestacy, in CA, says that claimants of separate property in
intestacy must survive 120 hours
1. 5 days
7. Disclaimer (Renunciation)
1. Disclaimer and renunciation
1. They mean the same thing
2. The idea is ducking and inheritance in
intestacy or ducking a devise under a will
1. They throw the money at you and
you don’t catch it
3. If you have anything to do with it, the
law says it is yours
1. If you have creditors, they would
have a claim superior to any donee of yours
4. Why disclaim?
1. To avoid creditors
2. To make a tax free transfer or
reach some other tax goal
2. An anticipatory disclaimer of an expectancy
interest created in intestacy is NOT valid
1. There is no property interest
8. Advancements
1. An advancement is a transfer by the intestate
meant as an advance against the donee’s intestate share
2. It is a question of intent
1. Many states, including CA, assume no
advancement unless the intent is expressed in a contemporaneous
writing, or unless the donee acknowledges it in writing
3. However to take from the intestate estate, the
advancee must account – must come into hotchpot
1. Suppose intestate made advancements of
$5K to son A, $1K to son B, and nothing to son C. Assume net
estate is $8K. Assume the advancements pass the test of § 6409a
1. Pool the advancements and the net
estate
1. $5K + $1K + $8K = $14K =
hotchpot
2. Artificial estate
2. Divide hotchpot by takers
1. $14K/3 = $4,667 each
3. A will elect not to participate in
the hotchpot because $5K > $4,667
1. Not required to give
anything back
4. Start over again
1. $1K + $8K = $9K
2. $9K/2 = $4,500 each
5. Each receives the hotchpot share
minus the advancement
1. B receives $4.5K -$1K =
$3.5K
2. C receives $4.5K - $0 =
$4.5K
3. Protection of the Family
1. Introduction to the Elective Share
1. Elective share is to protect the intentionally
disinherited spouse
2. CA doesn’t have an elective share
1. Instead, CA gives share of community and
quasi-community property
2. Traditional Elective Share Statutes
1. The typical common law state gives the
surviving spouse a choice between whatever the decedent spouse
chose to leave or a right of election
1. Take what dead spouse left you or elect
to take what the law gives to unhappy surviving spouses
2. Right of election
1. The traditional statutory
share/fraction was 1/3rd of the probate estate
3. Modern Elective Share Statutes
1. 1/3 is gone from Uniform Probate Code
1. Marriage is an economic partnership
2. Protect spouse because of the
partnership
3. Look to how long they were married
4. If they were married a week, 1/3 is too
big
5. If they were married 50 years, 1/3 is
too small
2. Accrual fraction
1. The longer the marriage, the bigger the
share
2. Cap of 50%
3. Pool/Pie reform
1. Make the surviving spouse come into
hotchpot
1. Make the surviving spouse account
for what s/he has already taken out of the marriage
2. If he made a big gift to her,
reconstruct finances to put it into hotchpot
4. Other Protections for the Surviving Spouse
1. Spousal contracts
1. Waive rights under right of election or
community property
2. They are waivable rights
3. Agreements are needed because there are
so many kinds of marriage
4. There has to be fair disclosure for
waivers to be valid
2. Forgotten spouse
1. When there is a forgotten spouse, §
21610 gives the forgotten spouse
1. The dead spouse’s
1. ½ of community property,
2. ½ of quasi community
property, and
3. The lesser of a surviving
spouse’s intestate share of separate property or ½ of the
separate property disposed of by will or by revocable trust
3. Homestead exemption is some form of right,
usually in surviving spouse, to occupy the family home
1. It is often severely limited
4. Exemption, or family allowance is a power in
the probate court to set aside money or personalty to survivors
5. The Community Property System
1. Separate property
1. All property acquired before marriage
2. All property acquired after marriage by
donative transfer
3. Income on separate property
4. Separate property is entirely subject to
disposition at death
1. Failing such disposition, it is
disposed of under the intestate succession statute
2. Community property
1. All other property acquired during
marriage and the income thereon
1. Or all property acquired during
marriage, except by donation
2. All property that can be traced to labor
during the period of the marriage
3. Disposition at death of community
property
1. Half already belongs to surviving
spouse
2. Half is subject to disposition by
deceased spouse
3. Failing disposition, deceased
spouse’s half goes to surviving spouse
4. In CA, the dead spouse’s half is
often confirmed to the surviving spouse in a simple proceeding
that avoids probate
3. Quasi-community property
1. In the nature of, nearly community
property
2. People who move to CA from common law
states
3. Within the government’s power, what
would’ve been community property if H and W were domiciled in CA
is distributed as is it were community property at death
4. We’ll treat them as if they’ve lived
here all their married lives
5. Pensions are not quasi-community
property (§ 102(b))
6. CA asserts no jurisdiction over foreign
real estate
4. Wills
1. Execution of Wills
1. Ceremony
1. In order for a will to be valid, it must
pass muster under §§ 6110-6113
1. Will must be in writing
2. Signed by the testator
3. Witnessed by being signed by two
persons who
1. Were present at the same
time
2. Witnessed either the signing
of the will or the testator’s acknowledgement of his signature
or the will
2. Make sure witnesses actually witness the
signing or the testator’s acknowledgement of his signature or
the will
1. You want witnesses that
disinterested technically and logic
2. Attestation clause
1. The recording of the act of bearing
witness
2. Yields presumption of due execution and
that the events described in the clause actually occurred
3. Ex. The foregoing instrument consisting
of (four) typewritten pages was signed, published and declared
by the testator to be his last will in the presence of us, who,
at his request, in his presence, and in the presence of each
other have hereunto subscribed our name as witnesses.
1. Followed by witness signatures
3. Self-proving affidavit
1. Affidavit memorializing their testimony
early
2. Won’t have to bring the witnesses in
during probate
4. Notarization
1. The notary is what gives the affidavit
life
5. If a will is not in the mainstream, you better
do a good job
1. If all the formalities had been met the
will would have been admitted to probate
2. If the will had been normal, the court
might have stretched and found it valid
6. There are different types of wills which
require different types of execution
1. Three types
1. Formal
1. Witnessed, ordinary,
attested will
2. Recognized in every
jurisdiction
2. Holographic
1. Handwritten and unwitnessed
will
1. Material provisions
must be in handwriting of testator
2. Must be signed
2. Valid in many jurisdictions
including CA
3. Nuncupative
1. Oral will
2. Recognized in some
jurisdictions but severely limited
3. Not recognized by CA - §6110
(necessity of writing)
7. Doctrine of Substantial Compliance
1. Allowed a formally defective will into
probate because
1. The testator’s intent was clear
2. There was substantial compliance
with the formalities of the wills act
2. What Constitutes the Will?
1. Physical integration
1. What papers are to be probated as
physical parts of the testator’s will
2. Were the papers present with the page
signed by the testators and witnesses and were they intended to
be a part of the testator’s will?
2. Incorporation by reference
1. A doctrine which allows an instrument
outside the will, and likely outside the room, to control the
disposition of property at death, without that document meeting
the requirement of the statute of wills
2. Requirements:
1. Reference to the outside document
in will
2. Outside document has to be in
existence at the time the will or codicil is signed
3. Doctrine of facts of independent significance
1. A will may dispose of property by
reference to acts and events that have significance apart from
their effect upon the disposition made by the will, regardless
of whether they occur before or after the execution or the
testator’s death.
2. Relevant in two kinds of cases
1. When testator’s will makes
reference to facts or events of independent significance to
determine the beneficiaries of the will
1. O  my oldest
surviving sister
2. When testator’s will makes
reference to facts or events of independent significance to
determine the property that an ascertained beneficiary will
receive
1. I leave any car I may own to
my brother, Bob
3. Construction Problems Created by the Time Gap
Between Will Execution and Death
1. Abatement
1. Talking about the testator who died with
less then he thought he was going to have
1. The will makes devises that the
estate can’t afford
2. Sort these problems out by classifying
the devises and then going down a hierarchy
1. Hierarchy
1. Intestate property
1. Whatever isn’t taken
care of by the will
2. Residuary
1. What’s left over after
general and specific devises are fulfilled
3. General devises
1. Devises of money from
general estate
4. Specific/demonstrative
devises
1. Specific devises –
devises of property (real and personal), money from a specific
source)
2. Demonstrative devise
1. Considered a
specific devise up to the value of the specified property or
fund and then a general devise for the balance
2. Exoneration – to free from liens
1. The basic rule is that mortgaged realty
passes subject to the mortgage
1. It is not exonerated
2. If the testator wanted the cabin to go
to the devisee free and clear, she has to say so very clearly
3. Apportionment of taxes
1. Who pays the death taxes?
1. Testator can direct who pays the
tax among her devisees and should
2. If a testator fails to direct who
pays, then each state will have its own default rule
1. Most say the each devisee
pays her own way (pays her own share of the estate tax)
3. Many wills set aside default rule
and direct payment out of the residuary
4. Ademption
1. Doctrine which applies when testator has
devised a particular piece of property which he disposes of
after executing the will
2. Ademption by extinction
1. For a specific devise, the
testator got rid of the devise item (painting for example)
before dying
1. There’s nothing to get from
the estate so the devise is adeemed by extinction
3. Ademption by satisfaction
1. If the devise is the oak desk, and
the testator has given the desk to the devisee, the devise is
deemed to be satisfied
2. What if the residue is given in
equal thirds to grandchildren and a year before death, testator
gives $30K to a grandchild? Ademption by satisfaction?
1. No, no adjustment unless the
will or a contemporaneous writing makes it clear
2. The doctrine is about equal
to advancements
5. Lapse
1. Common law presumed that a devise to a
predeceased devisee lapsed – you have to survive to take
2. Consequence of lapse
1. If a specific or general devise to
an individual beneficiary lapses, the devised property generally
passes into the residue of the testator’s estate
2. If the testator devises the
residue of her estate to a single devisee, and if the devise
lapses, the residue passes by intestate successions
3. If a devise to one residuary
devisee fails, that devisee’s share passes to the other
residuary devisees
4. No intestacy results unless all of
the residuary devisees die before the testator
3. Antilapse statutes
1. When a testator leaves property to
a sufficiently close relative, testator would want the issue of
that devisee to take the property if the devisee predeceases the
testator
2. Preserves the devise only for the
issue of the deceased devisee, not for the deceased devisee’s
will beneficiaries
3. In Ca, the close relatives
protected by the anti-lapse statute are
1. Kindred of the testator or
his or her surviving, deceased, or former spouse
1. Kin: blood or adopted
4. In order to set aside the
antilapse statute, you must include both survivorship language
(to my children who survive me) and an alternative gift (if
none, to Red Cross)
4. Void devises
1. If the devise is to a person who
had died before the time of will execution
2. Modern antilapse statutes
generally apply to save both lapsed and void devises
3. In CA, the void gift to a class
member is void (the common law result) if testator knew about
the death
4. Construction Problems More Generally
1. Reading the Will as a Whole
1. When a will provision creates an
ambiguity obvious on the face of the provision, courts will, as
a matter of course, look to the rest of the will to resolve the
ambiguity
2. Extrinsic Evidence
1. Extrinsic evidence is admissible to shed
light on testator’s intent only when the will itself is
ambiguous
1. When there is an ambiguity, the
court is merely discovering the meaning of testator’s own,
ambiguous, attested words
2. Three kinds of ambiguity situations
1. Patent ambiguity
1. Obvious
1. Will: $100 to UCD Law.
$100 UCLA Law. Residue to the law school
2. Which law school is
meant? It is obvious that there is an ambiguity
3. When there is a patent
ambiguity that should be an occasion to let in extrinsic
evidence but it may not be
2. Latent ambiguity
1. Hidden
2. Will: Residue to N.H. Law of
Wentworth N.H.
3. No such place – but you
wouldn’t know that from the face of the will
4. Latent is always an occasion
to let in extrinsic evidence
3. Plain meaning (no apparent
ambiguity)
1. The words have a plain clear
meaning
2. Will: “Residue to UCLA Law.”
What I meant was UCD Law.
3. For every question, there is
an answer that is plain, simple, and wrong
4. Plain should be occasion to
let in extrinsic evidence in, but sometimes it isn’t
3. What kind of extrinsic evidence should
be admitted?
1. Indirect declarations of the
testator (“He’s gonna be mad.” With regards to someone the
testator is trying to disinherit)
1. Doesn’t compete with the
word of the will
2. Testator’s circumstances (In
trying to determine which law school the residuary goes to,
outside evidence that I was a UCD fundraiser is helpful)
3. Direct declarations if the
description in the will applies equally to 2
devisees…“equivocations”
1. “$1000 to Cousin George.” I
have two cousins named George. Then lawyer could testify as to
testator’s direct declarations
2. Rationale – written word has
totally failed so testimony doesn’t compete with it
3. Correcting Mistakes
1. If there’s a mistake in description of a
person or thing involving only the details and if it can be
corrected without adding language, courts will make the
correction
2. Mistake in the inducement
1. The allegation made by the
excluded beneficiaries is, in effect, if testator only knew the
true facts, testator would have left us money
2. Courts have been reluctant to
honor mistake in the inducement claims because every testator is
under some misimpressions at the time the testator executes his
will
3. The mistake must appear on the face of
the will and also what would have been the will but for the
mistake
1. The mistake and what T would do
must appear on the face of the will or there is no remedy
2. Courts don’t want to guess what T
would have done
4. Courts unlikely to make changes due to
scrivner’s error
1. Courts will use the eraser end of
the pencil but not the lead
5. Revocation of Wills
1. Revocation by Physical Act
1. Physical act:
1. To the paper
2. To the writing
3. By the testator, or proxy or
presumption
2. Burning the edge of the paper is
sufficient for physical revocation as long as there is intent
3. If the will is missing, court will
presume it is revoked by physical act
4. An act of revocation done to a copy is a
non-event
5. Revocation by physical act through a
proxy can only be done in the presence of the testator
2. Revocation by Subsequent Instrument
1. Express revocation
1. “I hereby revoke all wills and
codicils at any time heretofore made by me.”
2. Implied revocation by total
inconsistency
1. Will 1 – all my property to Red
Cross; Will 2 – all my property to Salvation Army
1. Second will revokes will 1
by inconsistency
3. Revocation by Operation of Law
1. Due to a change in the circumstances of
the testator
2. Revoked by law – society has decided you
really didn’t want that will
1. Think divorce where ex-spouse
forgets to change her will
1. Unlikely wife wanted ex to
get property
3. Safe to say – divorce revokes a will PC
§ 6122
1. Every divorce petition and decree
has to contain a notice to that effect
4. Revival and Dependent Relative Revocation
1. Revocation of testator’s last will does
not reinstate a prior will
2. Dependant relative revocation
1. The revocation was conditional
(mistaken revocation)
2. Conditioned on testator’s belief
that the new will was going to work
6. Limits on the Power to Revoke: Joint Wills and Will
Contracts
1. Contracts to make a will
1. We recognize contracts to make a will or
we recognize contracts to not revoke a will
2. A contract to make or not revoke a will
is a limit on the ambulatory nature of a will
1. We recognize them but we don’t
like them
3. Ideally, it will be clear if there is a
contract to make a will
1. In a perfect world, there will be
a contract with standard contract terms and a standard will
which refers to the contract and there’s no question about
intent
4. Sometimes there is a question about
whether a contract has been made
2. Joint will
1. A single document for two or more people
(usually husband and wife)
2. Probate the document when the first
person dies and then reprobate it when the next person dies
3. Doesn’t create a contract in and of
itself
5. Contesting the Will
1. CA actually bans juries from will contest cases
2. Testamentary Capacity
1. Testator must
1. Understand the nature of the
testamentary act
2. The nature of his/her property
3. The natural objects of his/her bounty
4. The disposition s/he wishes to make of
his/her property
2. Insane delusions
1. If a person persistently believes
supposed facts, which have no real existence except in his
perverted imagination, and against all evidence and probability
2. In order to successfully contest the
will on the grounds of insane delusion, the insane delusions
must affect the devise
1. Ex. Marshall devises $10K to White
House butler for services rendered during his presidency. Insane
delusion that he was President affected the devise
1. If it is contested, the
devise is gone
3. An insane delusion is a belief in
nonexistent facts against all evidence, followed by testamentary
action based on that belief.
4. We only void devises when they are based
on the insane delusion.
5. If there is a fact at the core of the
testator’s belief, then there is no insane delusion
1. Rather, there is a sane delusion
2. If T makes a devise under a sane
delusion, we don’t void the devise
3. Lucid interval
1. We believe that most mentally infirm
testators can have a lucid interval
2. The clouds can lift
3. Hard for someone not at the will signing
to deny the possibility of a lucid interval
4. Can a lawyer do a will for an incompetent
testator?
1. Duty to decide for yourself if the
testator is competent
1. If yes, you can decide whether to
do it
2. If no, you must decline the
representation
3. Undue Influence
1. Written will does not reflect testator’s true
intent but instead reflects the successful effort of a will
beneficiary to substitute his own wishes for those of a testator
susceptible to the beneficiary’s influence
2. The destruction of free will (or free agency)
and procurement of a will that did not represent the testator’s
desires but rather those of the influencer
1. Think of it as an offer the testator
can’t refuse (“I’ll stop taking care of you and throw you out on
the street if you don’t leave me everything”)
3. Have to show
1. Confidential relationship
2. Undue benefit
3. Suspicious circumstances
4. To rebut allegation of undue influence:
1. Needs to show that testator had a
meaningful consultation with an independent lawyer outside the
presence of the alleged influencer
4. Fraud
1. Fraud which causes testator to execute a will
consists of statements which are:
1. False
2. Known to be false by the party who makes
them
3. Material
4. Made with the intention of deceiving
testator
5. Deceive testator
6. Cause testator to act in reliance upon
such statements
2. Courts won’t reform fraudulently induced wills
1. They void them and either stop there or
impose a constructive trust on the recipient
1. Constructive trust: “Since you
were unjustly enriched, we’re going to pretend you’re a trustee
and order you to transfer that money where it belongs – to your
‘beneficiary’.”
5. Preparing for the Contest: the Lawyer’s Role
1. No contest clause
1. Clause in wills that says that if anyone
contests the will, they lose their devise
2. Looking to hit the sweet spot where you
leave devisees enough that they’re not willing to risk losing it
by contesting
2. If you contest and lose in CA, you’re going to
lose your devise, even if you had cause to contest
1. Exceptions
&n
#Post#: 138--------------------------------------------------
Re: Wills Trusts and Estates outline [UC Davis]
By: Genjitowe Date: November 23, 2018, 2:20 am
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The entrance of the difficulties we still want you to tune in to
the more perfect.
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