Wills & Trusts – Outline
Probate
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Probate Procedure (Overview)
o Death: Once there is a deceased person, they check to see if they have a will.
 The court takes in rem jurisdiction over the decedent’s estate.
o Administration of Estate: opens up the estate legally so someone can deal with
decedent’s assents which were frozen when decedent passed away.
 If there is a will, an executor is assigned to follow the instructions of the will.
 If there is no will, an administrator is selected by the probate hierarchy to
ensure that the probate code is followed.
 Files petition for probate.
o Notices: Notices are sent through legal newspapers with information about the
decedent and the upcoming proceedings. Notices are also sent to beneficiaries (people
mentioned in a will) or heirs in law (where there is no will).
o Publication Proof: Proof of publication is filed with the court.
o Window for Will Contest: People have 30 days to file a “will contest” if they have any
objections to any will.
 Examples: will is due to fraud, duress, or lacks certain formalities
o Possible Trial: If there is a will contest, probate will not officially open and a trial is
instead set to determine the validity of the will.
o Probate Opens: If the will is not contested, is determined valid, or there is no will, then
probate will open.
 Here, the administrator or executor will hire an attorney to assist in probate.
o Letters of Administration: produced so executor/administrator can take control of
decedent’s accounts at financial institutions and to notify them of pending probate.
 Steps into the shoes of the decedent
o Inventory/Appraisal: take inventory of all assets owned at death by the decedent.
 An appraiser determines the value of each asset.
o Filing of Creditor Claims: creditors submit the value of the decedent’s debt with them.
 Any disputes about the validity of these claims is also determined at this stage.
o Payments: Using the determined assets, the first payments go to repaying outstanding
claims, debs, expenses, and taxes.
o Distribution: any remaining assets are distributed to beneficiaries or heirs at law.
Guardians of a Minor: A parent is the natural guardian of the child responsible for the support,
maintenance, and education of the minor.
Manager of a Minor’s Estate: If a child is receiving an inheritance, a manager of the estate
(Guardianship) must be established during the probate. Although usually also the parent, it can
be any person, and must be established by the court.
o Accountings are filed with the court every year.
o Guardians are able to spend for the health, maintenance, and education of the child.
o When the child turns 18, the remainder of the inheritance is given to the child outright.
Custodianship: during the lifetime of a grantor wishing to make a gift to a child, they may
establish a custodianship for any financial assets (stocks, bonds, etc.) where the custodian
manages the account for a minor until they are 21.
o Can set up with any financial institution direct (no court, attorney, or accountings)
Intestacy
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1
Intestate Succession (with Spouse) [CPC § 6401]:
o Community Property1: surviving spouse gets the decedent’s ½ intestate share of the
community property.
o Quasi-Community Property2 surviving spouse gets the decedent’s ½ intestate share of
the quasi-community property.
o Separate Property3: the surviving spouse gets:
 The entire decedent’s intestate share if: there are no children, parents, siblings,
or issue of siblings.
 1/2 of the decedent’s intestate share if:
 (1) there is one child or issue of deceased child; OR
 (2) there is a parent or issue of parents
 1/3 of the decedent’s intestate share if:
 (1) there is more than one child
 (2) there is one child and one or more issue of deceased child; OR
 (3) there are two or more issue of deceased child
Intestate Succession (without Spouse) [CPC § 6402]:
o If all issue are of the same degree, they take equally. If heirs of law are of different
degrees, they may take in different percentages.4
 Right of Representation [Classic]: You would go to the first line of children, split
evenly (even with only deceased children) and then go down the line to see who
would take those shares. 5
 Per Capita With Representation [PCWR] [CPC § 240]: You would go to the first
generational line where a person is living. Split shares evenly amongst those
existing whether alive or not. Then you would go down the line to see who
would take those shares.6 (this is what we use modernly and on the bar)
o If there is no surviving issue, to parent(s).
o If there is no surviving issue, no parents, to issue of parents.
 Similar issue with degree of relationships (brothers/sisters & nephews/nieces)
o If there is no surviving issue, no parents, no issue of parents, then to grandparents or
issue of grandparents.
 Similar issue with degree of relationships (aunts/uncles, cousins, etc.)
o If there is no surviving issue, no parent, no issue of parents, no grandparents, no issue of
grandparents, then to issue of predeceased spouse (i.e., stepchildren).
 Similar issue with degree of relationships.
Community property is all real and personal property wherever situated which was acquired during a valid
marriage while domiciled in California.
2
Quasi Community property is all property and all California real property acquired by either spouse during a valid
marriage while they were domiciled outside of California, that would have been characterized as community
property if they had been domiciled in California at the time of acquisition.
3
Separate property is all property, real and personal, acquired before marriage, after separation or dissolution,
and all property acquired at any time by gift, or inheritance.
4
Ex: 1 child, and 2 grandchildren (child of 2nd child) – unequal degree between surviving child and grandchildren
5
Ex: 2 children, each gets 50% of estate even if one of them is dead. Their child(ren) would take their share.
6
Ex: two children dead. One has two children and other has one. Each grandchild would get 33.3%.
o
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7
If there is no surviving issue, no parent, no issue of parents, no grandparents, no issue of
grandparents, no issue of predeceased spouse, then to next of kin.7
 Similar issue with degree of relationships.
o If there is no next of kin, no issue of predeceased spouse, then to parents of
predeceased spouse or their issue.
 Similar issue with degree of relationships.
Requirement of Heirs At Law [CPC § 6403]: Must survive the decedent by at least five days to
be considered an heir at law in intestate succession. If they fail to survive the decedent by five
days, they are determined to have predeceased the decedent.
o But this rule will not apply if the result is the escheat of the estate.
This refers to the fourth and fifth columns in the table of consanguinity.
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8
Special Relationships:
o Relatives of Half-Blood [CPC § 6406]: considered full blood – no difference.
o Unborn Relatives of Decedent [CPC § 6407]: if conceived before the decedent’s death,
but born after death, they would count in intestate succession.
o Children Born Out of Wedlock [CPC § 6450(a)] Used to be that they were excluded from
the will, but now all natural born children count regardless of the parent’s marital
status.
o Paternity Issues: [CPC § 6453] When disputed, paternity can be established by:
 Mother: Under UPA § 7610(a), look at birth certificate
 Living Father: Presumed under UPA § 7611 (though now DNA tests are usually
used) where either:
 Child born during marriage or within 300 days of divorce
 Parents attempted to marry each other (marriage void or voidable)
before the child is born
 Parents attempted to marry each other (marriage void or voidable) after
the child is born AND (1) he is named father on the birth certificate with
his consent OR (2) he is obligated to support the child under voluntary
promise or court order.
 He receives the child into his home and holds him out to be his child.
 Deceased Father: Established where:
 There is a court order entered during the father’s lifetime
 There is clear and convincing evidence that the father openly held out
the child as his own8
 It is impossible for the father to hold out the children as his own and
paternity is established by clear and convincing evidence.9
 Additionally, the legislature added CPC § 249.5 to allow children
conceived and born after the death of the father be considered heirs at
law only where (must satisfy all three):
o The decedent specifies in writing that their genetic material
may be used for posthumous conception:
 The specification shall be signed and dated by decedent
 The specification may be revoked or amended only by a
signed and dated writing by the decedent
 A person is designated by the decedent to control the
genetic materials;
o The person designated to control the genetic material has given
notice of their control to the executor or administrator of the
estate
o The child was in utero within two year of death of the decedent.
o Adoption [CPC §§ 6450(b), 6451]: An adopted child is treated like a natural born child.
 Default Effect of Adoption: Severs relationship between child and natural born
parent and establishes relationship with adoptive parent. Child will inherit from
See Hecht v. Superior Court (holding that destroying sperm samples after the death of the father was not
necessary because these after-born children would not pose a threat to the then existing children for purposes of
intestate succession).
9
If this section would have existed during Hecht v. Superior Court, then the result would have been different.
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10
adoptive parent, but not natural parent. Adoptive Parent will inherit from child.
Natural parent will not inherit from child anymore.
The Child Can Nonetheless Inherit from a Natural Parent, (avoid severance)
Despite the Adoption if: 10
 Pick One:
 Natural Parent and child live together as parent-child
 Natural parent died before the child was born and cohabitated with the
other parent.
 AND Pick One:
 Stepparent (Spouse of Natural Parent) Adopted Child
 Adoption Was After Death of A Natural Parent11
The Natural Parent Will Inherit from Adopted Child, Despite the adoption if:
 The adoption was by a stepparent.
o Foster Parents or Stepparents [CPC § 6454]: Parent-child relationship exists if:
 Relationship existed when child was a minor and continues throughout joint
lifetime; AND
 Must be established by clear and convincing evidence that the
stepparent/foster parent would have adopted the child but for a legal barrier.12
Escheat (no successor) [CPC § 6404]: if there is no one on the table of consanguinity to take the
estate, the state will take it. (not common)
Advancements [CPC § 6409]: for any gift to an heir at law to be considered an advancement
against their share of the inheritance, when either:
o decedent declares in writing that it is an advancement against the estate; OR
o heir acknowledges in writing that it is an advancement against the estate
Killing the Decedent:
o Homicides [CPC § 250]: A person who feloniously and intentionally kills the decedent
cannot inherit by (1) will or trust13, (2) intestate succession (including community
property)14, or (3) quasi-community property. The property passes as if the killer
predeceases the decedent.
o Joint Tenancy [CPC § 251]: When a joint tenant kills another, there is a severance of the
interest. (no right of survivorship).
o Life Insurance [CPC § 252]: If a beneficiary kills the policy holder, then they will not
benefit from the policy. They will be treated to have predeceased the insured and they
will look at secondary/contingent beneficiaries.
However other jurisdictions have different rules on this. See e.g., Hall v. Vallandingham (holding under Maryland
law, there is no exceptions to severance and children were not permitted to take from their natural father’s estate
by right of representation when adopted by a stepparent).
11
Ex: Mother and father married and lived together with child. Father Dies. Mother relinquishes child for adoption.
The child will be able to inherit from both the Mother and the Father. (more examples on page 6)
12
This is likely a policy consideration because foster parents or stepparents could have taken other measures to
have adopted the child to show that they had the intent that they meant the child to inherit as would a natural
child. Ex: Natural parent fails to consent to adoption. But this is only true while the child is a minor. There is no
legal barrier to adoption once the child turns eighteen. (more examples on page 7)
13
It also bars you from serving as executor/administer of the estate, but this is not really tested.
14
But this does not block the issue of the killer from taking the killer’s share by right of representation.
o
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Intentional or Felonious Killings [CPC § 254]: To determine if an above murder is
intentional or felonious so as to disqualify a killer, the court can look at (a) a record of
conviction or (b) a preponderance of the evidence.
Simultaneous Deaths
o Community & Quasi Community Property [CPC § 103]: Between spouses with respect
to community property, you split it among the parties and have it go down the spouse’s
heirs of law.
 Exceptions [CPC § 221]: this does not apply where there is a trust, deed, or
other contract arrangement, where there is a set period of time parties must
survive.
o Joint Tenancy [CPC § 223]: if two joint tenants die simultaneously (lack of clear and
convincing evidence that one survived the other), then the property will be split in half
going down each joint tenant’s beneficiaries or heirs at law (treated as tenants in
common).
o Life Insurance [CPC § 224] : if the beneficiary dies simultaneously (lack of clear and
convincing evidence that one survived the owner/creator), then the beneficiary will be
deemed to have predeceased the account owner.
Disclaimers [CPC § 278]: For someone to disclaim (reject) an inheritance, they must do so in a
signed writing explicitly identifying the interest and creator and intent and extent to disclaim.
o Time Limit [CPC § 279]: inheritance must be disclaimed within a reasonable time.
(presumed reasonable when within nine months after the death of the creator or when
interest becomes indefeasibly vested, whichever is later)
Wills
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15
Benefits of a Will: (1) make gifts to whoever you want; (2) can pick guardians for minor children;
and (3) pick executors who handle your affairs when you pass away.
Typical Structure of a Will:
o Identification of Family Members
o Naming Executors
o Guardians for Minor Children
o Distribution
o Disinheritance Clause (if desired)
o Testator’s Signature
o Witness’s Signature
Types of Gifts [CPC § 21117]:
o Specific Gifts: gift of a particular item of property distinct from all other objects in an
estate (ex: my coin collection)
o General Gifts: gift of general economic benefit payable under the general assets of the
estate (ex: $5000 to Nancy)
o Residual Gifts: whatever is left in the estate that is not designated as a specific gift or a
general gift.15
Bond: Can choose to have the executor serve in stead with (or without) bond. If with bond, then
the estate pays for a bond company to ensure the will and make sure the executor follows the
provisions of the will and does not embezzle.
If there is no residue clause and there is a residue, then the residue will go by intestate succession.
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16
Validity of Wills & Codicils: wills are presumed to be valid, but during a will contest, one can
argue that the will is not valid for the foregoing reasons (lack of):
o Testamentary Capacity
 Legal Capacity [CPC § 6100]: A person must be 18 or older.
 A conservator may make a will for a conservatee if permitted by a court
order under [CPC § 2580]
 Mental Capacity [CPC § 6100.5]: A person must be mentally competent for
them to make a valid will.
 Minimal Competency Test16: A person is not competent when:
o They cannot understand the nature of the testamentary act
o They cannot understand the nature and situation of individual’s
property OR
o They cannot remember and understand the relationships to
people being affected by the will.
 Diagnosis of mental conditions/disorders where there are symptoms of
delusions or hallucinations which result in the devise of property that
but for the conditions, the testator what not have done.17
o Usually requires medical testimony.18
o Present Testamentary Meaning & Intent
 Do testator’s words exhibit testamentary meaning?19
 Anything that indicates a testamentary gift or changing the beneficiaries
of a testamentary gift (or words of revocation).
 Ex: “last will and testament” or “testamentary codicil” or “executor”
 Did testator intend for documents to be effective upon signing?
 Conditional Wills: requirements for the will to take effect. If there is a
true condition, and not a motive to creating a will, then without the
happening of the condition, the will will not be effective.
 Conditioning Gifts: requirements for the gift to pass through a valid will.
the court finds that you are permitted to place conditions on the receipt
of gifts – just as you are permitted to disinherit family members.
o As probating a will, is not considered a state action, you are
even allowed to place discriminatory conditions on the receipt
of a gift in a will.20
 Sham Will: no intent for it actually be a will  just a joke.
 Challenging Testamentary Intent
This is both the standard used by the court and one that should be applied by practitioners. It is unethical for a
lawyer to draft a will for someone they should have found to be incompetent. In re Wrights Estate (holding that
despite strange testimony discussing testator’s odd and erratic general demeanor, he satisfied the requisite mental
capacity test at the time of signing the will and therefore the will must be held to be valid); Wilson v. Lane (same).
17
In Re Strittmater’s Estate (holding that a woman’s will could be not be probated because she suffered from
schizophrenia which led to an intense hatred of men).
18
Order of preferred testimony on capacity: medical experts, then drafting attorneys, then subscribing witnesses
19
Kimmel’s Estate (holding that the language leading up to the issuance of gifts, made it clear that it was being
done because of the possibility of death and therefore the court could construe the letter to be testamentary).
20
See Shapira v. Union National Bank (holding that it was permissible for a will to require a beneficiary to marry a
Jewish woman as a condition to receiving a gift).
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21
Fraud: if you establish that there was fraud in the creation of a will, it
does not mean that the whole will be invalidated. It would only affect
the parts of the will affected by fraud.
o Fraud in the Execution: someone is physically tampering with
the will itself.21
o Fraud in the Inducement: someone is making an intentional
misrepresentation to the testator and the testator makes a
change to their will in reliance of the misrepresentation.
o Fraudulent Prevention in the Making or Revoking of a Will:
where a testator is prevented in making a will or making a
change in a will based on fraudulent action of a third party.22
 Constructive Trust: equitable remedy by the court that
will prevent unjust enrichment.
Undue Influence: conduct on the part of a third party that overpowers
the mind of the testator so that the product are the wishes of the
influencer as opposed to the testator
o Parole Evidence/Extrinsic Circumstantial Factors:
 motive (financial)
 unnatural distribution of property (distant relatives)
 opportunity and access (physical distance)
 degree of relationship (trust)
 susceptibility to undue influence (age, health,
intelligence and business experience)
 active participation (driving to atty/transcribing will)23
o Mere influence is not enough though.
Mistake: there are no third party actors, but the testator himself made
an error in judgement.
o Mistake in Execution: small technical/clerical errors tend not to
shed doubt on testamentary intent. Usually does not lead to a
will failing. 24
o Mistake in Inducement: error in judgment
o Ambiguities: issue with the manner in which the testator
described a person or piece of property in the will.
Ex: adding provisions to the will, adding zero’s to numbers, signing a will for someone else, etc.
Latham v. Father Devine (holding that when the father did not allow the testator to modify the will that gave
everything to him, the lower court must hear the action raised by the potential beneficiaries)
23
Lipper v. Weslow (holding that a will prepared by an attorney who was also a beneficiary was not de facto invalid
without a showing of evidence of undue influence given that the testator was of sound mind in signing).
24
Compare Ex: signing wrong line of the will, with In Re Pavlinko’s Estate (holding that neither the husband nor
wife’s wills were valid when they signed each other’s wills as it could not be said that they had testamentary intent
for the documents they respectively signed).
22
o
o
25
Extrinsic Evidence: Used to be that the court would only look at
the plain meaning of the will,25 but now courts look at all
extrinsic evidence to determine the testator’s intent.26
o Surprise Children [CPC § 21622]: if the decedent27 mistakenly
believed that a child predeceased them or never knew they
existed, and for that reason excluded them from the will, then
the child will take as if the descendent died intestate
Compliance with Formalities
 Witnessed Will [CPC § 6110]: a will must be in writing signed28 by either: (1) the
testator, (2) in the testator’s name and presence by some other person at their
direction, or (3) by a conservator pursuant to a court order.
 Witnesses: at least two people must be present when the testator signs
the will during their lifetime, acknowledges their signature on the will,
or acknowledges that they have a will.29 Witnesses must sign and
understand that it is the testator’s will (though not the content).
o Interested Witnesses: [CPC § 6112]: Any person competent
may be a witness. If they are interested, they are not barred
from being a witness, but it creates a rebuttable presumption of
duress, menace, fraud, or undue influence if there are not two
other disinterested witnesses30
 If presumption is not overcome, then the witness will
take anything they would have taken without the
provision of the will.
 Harmless Error Rule (effective 2009) if these witnessing formalities are
not met, the will can be saved if the proponent of the will can show by
clear and convincing evidence that the testator intended it to be their
will when signing.31
Plain Meaning Rule: Where words of the will are clear on their face, extrinsic evidence is not admissible to show
that the plaintiff meant to describe a different person or property. Mahoney v. Gainger (holding that although the
evidence clearly shows that the testator meant for the residue of the estate to go to the 25 first cousins, it went to
a maternal aunt when the will bequeathed the residue to the testator’s heirs at law)
26
In Re Estate of Russell (holding that the extrinsic evidence was permissible to determine whether the testator
meant to give the entire estate to the man and not to split it between the man and his dog - the latter being an
invalid gift) ; Estate of Duke (holding that a will could be reformed to include an otherwise excluded beneficiary
with clear and convincing evidence that it was the intent of the will)
27
This also applies to a revocable inter vivos trust which is considered a testamentary instrument
28
Any signature intended to be a signature by the testator (initials, fingerprint, etc.). At the moment, no electronic
signatures. No requirement that there be a date.
29
Two tests for joint presence:
Line of Vision Test: both witnesses must be in the testator’s sight at the time of the signing.
Conscious Presence Test: witnesses must be in the range of any of the testator’s senses at the time of signing.
30
In other words, the will itself is valid, but the gift to the interested witness is put into question and will be taken
if they cannot rebut the presumption.
31
In Re Estate of Stoker (holding that the handwritten will dictated and transcribed by a third party was valid even
without the requisite witnesses because it clearly captured the testator’s intent).
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32
Holographic Will [CPC § 6111]: a will that is in the handwriting32 of the testator,
includes the material terms to the will (testamentary language, designative gifts
beneficiaries, fiduciaries, revocations), and signed. No witnesses are required.
 Inconsistent Provisions: If it is unclear whether the holographic was
created before or after a duly executed dated will33, then the
inconsistent provisions in the holographic will will be cancelled.
o If both instruments are undated, and you cannot determine
which was dated first, then both gifts fail and become part of
the residue.
 Arguing Testamentary Capacity (litigation tool): If the will is undated,
then the challenger can invalidate the will by showing that the testator
lacked capacity at any point in which the will could have been executed.
 Preprinted Will Forms: Permitted to use as holographic wills if they fill
in the blanks and the boilerplate intro paragraph is preprinted.
Revocation of Instruments (Wills & Codicils):
o Subsequent Instrument [CPC § 6120(a)]: an instrument is revoked when a subsequent
instrument expressly revokes the former or impliedly when it is inconsistent in its terms.
 Reminder: the subsequent instrument has to be valid under 6110 or 6111.34
o Physical Act [CPC § 6120(b)]: burning, tearing, cancelling, obliterating, or destroying a
will with the intent to revoke by the testator or another person in the testator’s
presence and at their direction. 35
 Court must determine whether a partial revocation or complete revocation.36
 Crossing off the signature also counts as a revocation of the whole will.
 Duplicate Originals [CPC § 6121]: Destroying one under 6120(b), has the effect
of destroying the other originals.
 Lost Will [CPC § 6124]: Cannot find the original that was in the possession of a
competent decedent? This creates a presumption that it was destroyed with the
intent to revoke. Burden on the proponent of the will to show a good reason for
a lack of production of the original.
 If presumption is overcome, can use copy or testimony to understand
the terms.
o Operation by Law
 Divorce [CPC § 6122]: A divorce after a will was made, disinherits the former
spouse from the following: (1) disposition of property; (3) nominations as
executor, trustee, conservator, or guardian. Spouse deemed to have
predeceased the testator.
You must provide the court with a typed version though.
You are permitted to introduce extrinsic evidence to show whether the undated item was created before or
after the dated instrument.
34
According to Estate of Phifer, the modifications on the face of the will are treated as codicils and must show
testamentary intent in the abstract. Ex: In Will of R.O.C. crossing out and writing $20,000 instead of $10,000 does
not show testamentary intent so it is just a valid revocation. But in Estate in Dumas, they held that if the underlying
will is handwritten, erasing, rewriting, and signing, is considered a valid re-execution of the original will.
35
See Thompson v. Royall (holding that there was no revocation by physical act when the testator did not “touch
the words of the will” by writing that this will is revoked on the back of the will and could not be a subsequent
physical instrument because it was written by the attorney and not the testator herself).
36
The more the lines cover the face of the will, the more likely they intended to revoke the whole will. If they tried
to draw a line through a single paragraph, then it is more likely that they intended to only cancel part.
33
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37
Remarried: [CPC § 6122(b)]: then the spouse will be reinherited as if the
statute never took effect.
 Separation: Not a divorce for purposes of this statute. Still married.
 Domestic Partners [CPC § 6122.1]: Follow the same rules as spouses
under 6122.
 Joint Tenancy [CPC § 5601]: Interest is severed if there was a divorce.
The decedent and former spouse are considered tenants in common.
o Exception: if there is clear and convincing evidence that they
intended to keep the joint tenancy despite the divorce.
 Non-Probate Transfer [CPC § 5601]: Beneficiary designation of the
former spouse on the decedent’s accounts (banking institutions, 37 etc.),
is removed following a divorce.
o Exception: if there is clear and convincing evidence that they
intended to keep the beneficiary designation despite the
divorce.
Dependent Relevant Revocation: If testator revokes a will, under the mistaken assumption that
a subsequent will was valid (where it is not), the court will hold the former will valid if it will
more closely follow the testator’s probable intent.
 This also works for a gift within a will as opposed to the entire instrument.
Revival [CPC § 6123]: If a second will is created to revoke a first, and then the second will is
revoked under 6120(b) or by a third will, the first will may be revived if there is extrinsic
evidence (or language in the third will) that it was the intent of the testator.
Integration: tying together all testamentary items to understand whole plan of distribution.
o Codicils: Adds to the will or change/modify terms of the will.
 Must be valid under 6110 or 6111.
o Republication by Codicil: Treats a prior will as having been re-executed as of the date of
the last codicil.38
 Also has the effect of changing the status of interested witnesses
o Incorporation by Reference [CPC § 6130]: allows sufficiently described outside writings
to have testamentary effectiveness even if it was created without testamentary intent
or formalities if they are in existence at the time the will was last executed.39
 Properly executed codicils may incorporate the terms of an otherwise invalid
will.40
o Incorporating Writings After Will Execution [CPC § 6132]: Writings that provide for the
disposition of tangible property41, that are dated, and in the handwriting of the testator
or typed with the signature of the testator are valid if they describe the items and the
beneficiaries with reasonable certainty. These writings must be referenced in the will.42
Does not include life insurance. Must actually notify them of intent to CPC § 5601(e)
See Clark v. Greenhalge (finding that the codicils caused the will to be re-executed at a later time allowing
notebooks entries made after the original will to become incorporated by reference); Simon v. Grayson (similarly
made a letter created after the will incorporable by reference when a codicil is made causing a re-execution of the
will to a later date).
39
On an exam: Establish (1) in existence before testamentary item and (2) sufficiently described writing.
40
In re Plumel’s Estate (holding that a properly executed codicil written on the back of a formerly invalid will made
the terms of the will enforceable as incorporated by reference by the now valid codicil will).
41
Not real property, intangible property, or financial accounts and funds.
42
Ex: “I might made a distribution of my personal property by subsequent memorandum.”
38
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
43
Tangible personal property cannot exceed $5000 per item or $25,000 in
aggregate.
o Acts of Independent Significance [CPC § 6131]: Allows the court to fill in the blanks in a
testator’s will by referring to acts or events during the testator’s lifetime for primarily
non-testamentary reasons.
 Helpful for identifying beneficiaries43 or for identifying gifts44
o Contract to Make Will [CPC § 2700]: agreement between the decendent and a
promissee to dispose of property after death will be valid if:
 There is a provision of the will stating material terms of the contract;
 There is an express reference in the will to other contractual instrument;
 There is a writing signed by the decedent evidencing a contract;
 There is an oral contractual agreement shown through clear and convincing
evidence between the decedent and the claimant promise; or
 There is an oral contract between the decedent and a third party for the benefit
of the claimant.
 Mutual Wills: Execution of a mutual will does not create a presumption of a
contract not to revoke the will.
Vesting of Title: a gift will be void if the beneficiary predeceases a testator or will lapse if they
fail to survive a survival clause period.45
o Death of Beneficiaries [CPC § 21109]: If beneficiary is entitled to take under a will, they
will do so if there is clear and convincing evidence that the beneficiary survived the
testator – even if not by five days. If it is unclear whether the testator or the beneficiary
died first, then the beneficiary will be deemed to have predeceased the testator.
o Failed Transfers (Common Law Lapse) [CPC § 21111]: Any general or special gifts that
fail because the primary beneficiary predeceases the testator will go to any designated
contingent beneficiaries. If there is no contingent beneficiary, it will go to the residual. If
the residual gift fails, then it becomes part of the estate (to follow intestate succession).
 If there are multiple beneficiaries of the residual and one of them predeceases
the testator, then their share is distributed amongst the other beneficiaries.
o Anti-Lapse Statute [CPC § 21110]:46 If a deceased beneficiary is blood related to the
testator or current/former/deceased spouse to the testator, and the deceased
beneficiary has an issue, then the issue is substituted for the deceased beneficiary.47
 The issue will not take if there are words to a contrary intent (including survival
clauses)
 Class Gifts: Any class members that predecease the testator, will have their
issue included in the class if the anti-lapse statute applies.
Special Rules About Beneficiaries:
o Minors: Cannot accept a gift in a will until they are 18.
Ex: “I give $1000 to each person employed at my store at my death.” The court will then look at the testator’s
hiring and firing prior to his death. Not a specific beneficiary.
44
Ex: “I give my residence at death to my son John.” The court will look at the house that the testator owned at the
time of death. Not at a specific address.
45
Typically the longest period is the close of probate.
46
Note that these statutes vary from state to state. See e.g., Dawson v. Yucas (holding that their anti-lapse statute
does not include blood relatives of current, former, or deceased spouses to Testator)
47
On an exam: Q1: was the deceased beneficiary blood related to the Testator; or to a current, former, or
deceased spouse of the Testator? Q2: does deceased beneficiary have an issue? If both are yes, then anti-lapse
statute applies and the issue is substituted for the predeceased beneficiary.
o

48
Related Lawyers [CPC § 21380]: any bequest to a lawyer (or his family) who drafted a
will is invalidated unless they are blood related, married, cohabitating, or is a registered
domestic partner of the testator.
 Certificate of Independent Review: A way around this is to send the client to a
different lawyer with the prepared will to review and check for any undue
influence.
o Omitted Spouse [CPC § 21610]: If the testator fails to provide for a spouse acquired
after all of the testamentary instruments,48 the omitted spouse will receive: the
decedent’s half of the community property, their half of the quasi-community property,
and the amount the spouse would have received of the separate property that would
have received by the spouse if the decedent would have died intestate (but no more
than ½ of the overall estate).
 Exceptions [CPC § 21610]: Will not receive if it was the clear intent of the
testator, if there is a clear intent that the spouse was provided for outside of the
estate,49 or there was a valid agreement waiving the right to share in the
estate.50
o Omitted Children [CPC § 21620]: If the testator fails to provide for a child born to or
adopted by the decedent after all of the testamentary instruments were executed, the
child will receive a share equal to what they would have received if the decedent would
have died intestate.
 Exceptions [CPC § 21621]: Will not receive if it was the clear intent of the
testator, if the estate is substantially devised to the other parent of the omitted
child, or if there is a clear intent that the child was provided for outside of the
estate.
Changes in Assets/Property After Execution of the Will:
o Ademption by Extinction [CPC § 21133]: When the specific gift is no longer available at
the time of death of the testator, the beneficiary will receive any balance of the
purchase price plus any security agreements from the purchaser to the transferor.51
(Minority/Intent View)52
 Paid purchase price will go to the estate not the beneficiary. Just the balance.
 This applies when government takes property by eminent domain.
 This applies when insurance companies haven’t paid proceeds of fire or casualty
insurances.
 This applies to property obtained in security in lieu of foreclosure if the gift to
the beneficiary was the promissory note.
o Satisfaction [CPC § 21135]: an intervivos transfer of a gift that would otherwise go to
the transferee at death, will be considered against their taking under the will if:
 The instrument (usually codicil) provides for deduction of lifetime gift from atdeath transfer;
Remember: republication by codicil.
Ex: Inter Vivos Transfer, Life Insurance Policy, etc. But the court will consider whether the spouse was actually
provided for and not omitted.
50
Ex: Prenuptial agreement
51
Ex: Specific gift of home. Testator sells home. $200,000 paid down and $250,000 with promissory note.
Beneficiary can collect $250,000 promissory note.
52
Majority/Identity View: When a specific gift is no longer on hand at the time of the death of the testator, the
beneficiary is entitled to nothing. (Not what California Follows)
49

 Transferer declares in a writing that it is a satisfaction; OR
 Transferee declares in writing that it is a satisfaction.
o Increased Securities [CPC § 21132]: additional securities obtained between the time of
creating the will and death, will be part of the gift if:
 They are securities of the same organization (stock split);
 They are securities of another organization obtained through merger,
reorganization, etc; OR
 They are securities obtained through dividend reinvestment.
 Dividends are not considered part of this security transfer.
Changes in Assets/ Property After Death But Before Estate Closes:
o Abatement [CPC § 21401]: Reducing the gifts to pay the expenses of the estate.
 Order of Abatement [CPC § 21402]: First abate property not disposed of by the
instrument, then residuary gifts, then general gifts to people other than
relatives, then general gifts to relatives, then specific gifts to people other than
relatives, and finally specific gifts to relatives. (Stay in the same level until you
wipe it out).
 Pro Rata In Class [CPC § 21403]: The court will try to reduce all gifts to members
in the same tier proportionally.53
 Partial Abatement: satisfying part of the gift (not all) when there is not enough
money to go around.
 Liens [CPC § 21131]: Specific gifts will not receive exoneration from the estate
before the gift is distributed.54
o Income Generated By Assets While In Probate: A specific gift carries with it any income
obtained since the testators death minus any expenses attributed to that asset.
Trusts


53
Trust: Creation of fiduciary relationship orally or in writing. Separates legal and equitable title.
o Trustor/Settlor: Creator of the Trust. Sets up the parties and the purpose of the trust.
o Trustee: Manager of the Trust. Has legal title. Has fiduciary duties to the Beneficiary.
 Can be an individual or an institution/entity (bank).
 Can have Co-Trustee.
 Can hire professionals to assist in making trust decisions.
 Have to accept the role of Trustee.
 Collect fees under the Trust.
o Beneficiary: Recipients of the Trust Benefit. Has equitable title. Has enforceable rights
against the Trustee.
 Can have contingent Beneficiaries.
Creating Trusts:
o Inter Vivos Trust: created during the lifetime of the Trustor. Will bypass Probate as legal
title is no longer vested in the Trustor.
 This is irrevocable.
 Failed Trusts go back into the estate.
Ex: All general gifts to relatives will be reduced proportionally to satisfy the debts.
Usually with real property. Ex: a gift of a house with a mortgage. The bank may let the beneficiary step into the
shoes of the testator; allow them to refinance the loan; OR the property can be sold and the bank is paid off and
the balance goes to the beneficiary.
54
o

55
Testamentary Trust: created at death of the Trustor under their will, and unlike an inter
vivos trust, goes through Probate.
 Can be modified until the death of the Trustor.
o Revocable Living Trust: created in the lifetime of the Trustor where they also hold legal
and equitable title and someone else is the contingent beneficiary.
 Must be in writing.
 Way of circumventing probate because when the Trustor dies, this trust does
not fall into the purview of the court.
 Additionally, when there is a successor Trustee added which will operate the
trust for the Trustor if they lose capacity and for the contingent beneficiaries
when the Trustor dies.
 Pour Over Will: transfer assets into the Trust after death, not previously
included in the Trust.
Types of Trusts:
o Private Trust:
 Present Intent to Create a Trust55
 Definite words that show the testator intended to create a trust
 Not precatory language: “To my son and I hope he uses it for my niece”
 Specific or Identifiable Property as the Corpus of the Trust Designated
 Trustor must own the property at the time they intended to create the
trust
 Property they have ownership and control over
 Must be delivered to Trustee
 Ascertainable Beneficiary56
 Title must vest and is subject to the Rule Against Perpetuities57
 Valid Trust Purpose (Not Prohibited by Public Policy or Law)
 Creation Mechanics
 Writing or Oral?
 Sufficient Split of Title?
 Notice is not required. [Restatement 2nd § 35]
o Trustee Rejection [Restatement 2nd § 35]: Validity of the act of
creation is not affected by acceptance or rejection by any
particular trustee. Acceptance is a condition precedent to
imposing liability onto a trustee but does not bear onto the
creation.
o Charitable Trust:58
Hebrew University Assn. v. Nye (holding that where a gift failed for lack of delivery, the court could not imply a
trust where the Trustor is the Trustee to make delivery unless the Trustor/Trustee made explicit his intent to
impose Trustee responsibilities on himself).
56
Clark v. Campbell (holding that a Trust fails when the trustor is charged with disposing of the property to the
Trustor’s “friends, as they shall select,” because it is impermissibly vague).
57
Uniform Statutory Rule Against Perpetuities: “Wait and See Doctrine” a private trust will not violate the rule
against perpetuities at its inception. All private trusts are valid for 90 years. At the end of the 90 th year, they will
look to see if any interests are waiting to vest. If yes, those interests are going to be reformed and distributed as
close as possible to the goal of the Trustor.
58
Split Title Trust are trusts that have a private term and a charitable term. Ex: For the care of X, and upon her
death, to the ACLU to be used for ____ (charitable purpose).

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
o
59
Present Intent to Create a Trust
Specific or Identifiable Property as the Corpus of the Trust Designated
Indefinite Beneficiary: significant group of the population (public at large)59 who
will benefit from the Trust OR the beneficiary continually changes (do not hold
equitable title)
 State Attorney General holds equitable title
 This does not violate the Rule Against Perpetuities and has the
possibility of lasting forever
 Charitable Purpose: will the purpose substantially benefit society.60 Five easily
recognized categories:
 Advancement of Education: establishment and support of a school or
museum
 Relief of Poverty: providing support for food, clothing, or shelter for
people in need
 Promotion of Health: advancement of health ideas or treatment of the
sick
 Governmental-Purpose Trust: helps government provided services to
the public at large
 Advancement or Promotion of Religion: supporting religious
organizations
 If not here, then under the discretion of the judge
Operation of Law:
 Resulting Trust: Beneficiary dies (trust fails)
 Constructive Trust: Remedy (not actual trust) to prevent unjust enrichment.
 Oral Trust over real property: [Restatement 3rd § 24] when an owner
of land transfers for the purpose of creating a trust but no writing is
created in violation of the Statute of Frauds, the transferee will be
deemed to hold in a constructive trust for the benefit of the transferor if
they were in a confidential relationship. 61
o But must have clean hands.
 Secret Trust: permitting extrinsic evidence to establish the intent of
testator where the will does not acknowledge the existence of a trust.
 Semi-Secret Trust: under the plain meaning rule, unenforceable trust
created in a will where a trust is referenced but the terms are not
established in the will. 62
o However, extrinsic evidence would be permissible in California
under Russell and Duke
 Purchase Money Resulting Trust: In a real estate purchase agreement, instead
of having the seller transfer title to the buyer, they transfer to a third party for
Examples of this on page 7 of Trusts Supplement.
Shenandoah Valley National Bank v. Taylor (holding that a private benevolent trust is distinguishable from a
charitable trust because in the former the distribution was a gift with the hope that the funds are used for
education whereas the latter requires a trustee to ensure it is).
61
Hieble v. Hieble (finding that the transfer of property for the purposes of protecting it from potential probate
during the cancer treatment of a mother established a valid constructive trust).
62
Olliffe v. Wells (holding that a testamentary trust was not created when the residue is given to the executor in
the will and only an outside agreement purports to introduce evidence of the existence of a trust).
60

the benefit of the buyer. (Used to protect the property from liability/creditors of
the buyer).
o Honorary Trust: [trust for pet] non-enforceable by the court because equitable title
cannot be given to an animal. A trustee is on their honor to carry out the wishes of the
trustor but will not be held liable for breaches.
 California does allow pet trusts to be established under Probate Code § 15212
Administration:
o Trustee Powers: Under the Uniform Trustee Powers Act, the Trustee can perform,
without the court authorization, any act that a prudent person would perform for the
purposes of the Trust. Some enumerated powers include:
 Power to Collect and Hold Property
 Power to Accept Additions to Trust
 Power to Continue Business
 Power to Invest in obligations in the United States government
 Power to deposit trust funds in specific financial institutions
 Power to acquire or dispose of property
 Power to manage Trust Property
 Power to encumber, mortgage or pledge trust property
 Power to make repairs or improvements
 Power to develop land
 Power to enter into leases
 Power to enter into mineral leases
 Power to grant options
 Power to exercise voting rights regarding corporate shares
 Power to pay calls and assessments
 Power to sell or exercise stock subscriptions and conversions
 Power to consent to a change in form of business
 Power to hold securities in certain forms
 Power to develop securities in securities depository
 Power to insure trust property and trustee
 Power to borrow money
 Power to pay and settle claims
 Power to pay trust expenses
 Power to make loans to beneficiary
 Power to make distributions
 Power to effect nature and value of distributions
 Power to hire
 Power to execute and deliver instruments
 Power to prosecute or defend actions
o Trustee Duties:
 Duty to Follow Trust Instructions
 Make Mandatory or Discretionary Distributions of Principal or Income
(important)


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


63
Duty of Inquiry: When a Trust authorizes distributions for a purpose under the
discretion of the Trustee, the Trustee has an affirmative duty to inquire what
the needs of the Beneficiary are.63
Duty of Loyalty
 Duty to Avoid Self Dealing: The Trustee may not derive personal gain in
any way from the administration of the trust unless authorized by the
trust.64 (except for fees)
o The Trustee cannot sell his own property to the Trust and
cannot purchase Trust property with his own funds.65
o The Trustee cannot loan personal funds to the Trust and cannot
borrow Trust funds for personal use.
 Duty to Avoid Conflicts of Interest: The Trustee must avoid placing
themselves in any position where a conflict of interest with beneficiaries
is possible.66
o It can be a conflict between beneficiaries or between a
beneficiary and the Trustee.
o The no further inquiry rule does NOT apply.
Duty to Care, Protect, and Preserve Trust Property: A Trustee has a duty to
perform such acts as a reasonably prudent business person would find
necessary for the protection and preservation of trust property.67
Duty to Properly Title Trust Assets and Not To Comingle With Personal Assets:
prevents creditors from attaching to the wrong assets (Trustee v. Trust)
Duty to Not Delegate Trust Functions: A Trustee may not permit others to
exercise discretionary powers inherent to the position of manager of trust. This
includes a co-Trustee not delegating discretionary powers to a co-Trustee unless
the Trust document permits such action.
 A Trustee can delegate ministerial functions – such as secretarial duties,
record keeping and collecting income.68
 A Trustee can hire an agent which they supervise and charge with
limited trust functions.69 A Trustee can also hire a financial planner or
other expert to assist the Trustee in making certain trust decisions.
Duty to Properly Invest Trust Assets: Courts judge the appropriateness of an
investment based on the facts and circumstances existent at the time the
investment was made.
Marsman v. Nasca (holding that a Trustee breached her duty when she held a trust in the benefit of Cappy with
discretionary distributions for his need yet Cappy had to sell his home as the Trustee did not inquire into Cappy’s
financial instability).
64
No Further Inquiry Rule (NFIR): The court will not look into whether the self-dealing was intentional. Violation
alone is sufficient to be liable.
65
In order to do this, they must obtain court approval prior to the transaction or will be held liable.
66
In re Rothko (holding that knowing that property was going to appreciate was a sufficient mental state to create
a conflict when the property was sold and taken out of the inheritance of the contingent remaindermen).
67
Ex: recording property interests; filing government documents; take inventory of property; deposit into federally
FDIC insured bank; secure and insure property; make repairs (but not necessarily improvements)
68
This is not a streamline rule but in the analysis we will want to compare the responsibilities they were given to
the amount of supervision they were given. Will want to argue that it was closer to an administrative supervised
function rather than free discretionary reign and vice versa.
69
Ex: “make repairs for less than $500”

o
70
Prudent Investor Standard: [Restatement 3rd] Three main points of
analysis:
o Due Diligence in Selecting Investments: Can invest any kind of
asset (unless restricted by the Trustor) as long as done with due
diligence.70 Factors to consider in selecting/changing
investments:
 General economic conditions
 Any expected income to be generated
 Potential for appreciation in value
 Beneficiary’s other financial resources
 Is there a need for liquidity or preservation of principal
o Duty to Diversify: spread the risk of loss over different entities
and different industries. (Trustees have a duty to diversify
unless altered by the Trustor or not prudent to do so).
 Consider investments in securities: stocks71 & bonds72
 Including among types of stocks
 Consider also diversifying in real estate
o Total Asset Management Approach: the appropriateness of an
investment can be based upon the performance of the entire
portfolio of investments, instead of examining each investment
individually.
 Can balance risk v. safety in choosing investments
 Can offset gains vs. losses
 More difficult of claim a Trustee made an improper
investment
 Duty of Impartiality: Trustee must be fair to all beneficiaries - current and
contingent future ones.
 Consider circumstances in which one beneficiary is favored over the
other
 Duty to Account to Beneficiaries: Trustee has to account to beneficiaries at
least once annually (trust can say more)
 List the assets on hand at the beginning of the trust period and their
valuation
 All income collected during the past year (or other period) – rent,
dividends, interests, sales of assets, etc.
 Any disbursements of income and principal to the beneficiaries,
expenditures (payments of agents or bills), or losses
 Conclusion of what is left on hand for the next year
Remedies: Trustee is personally liable for any loss they cause for a violations of a
fiduciary duty.73
Estate of Collins (holding that a trustee violated their duty of properly invest trust assets when they mostly
invested in junior mortgages which were wiped out in a foreclosure sale especially because they never got the land
appraised).
71
Evidence of ownership interest in a corporation.
72
Evidence of debt (loan to the corporation where they give you a fixed interest).
73
Exception: duty to avoid self dealing where they have to turn over any profits irrespective of any losses.



74
The beneficiary can also ask the court to remove (surcharge) the trustee for
having violated a fiduciary duty.
 They can also ask to remove (without a breach of a duty) if:
 If trustee if physically or mentally incapacitated
 The existent of a serious continuing conflict of interest on the part of
the trustee and the trust estates. (usually competing business interest)
 Bankruptcy of the Trustee’s assets
 Extreme hostility or friction between the Trustee and Beneficiary
Transferability of Trust Beneficiary’s Interest: before the Trustee distributes, the Beneficiary’s
interest is not assignable and cannot be reached by creditors.74
o Voluntary Transfer (Assignment): once a distribution is made, a Beneficiary can assign
his property interest
o Involuntary Transfer (Creditor Claim): once a distribution is made, a Creditor can attach
an interest and have the Trustee make payments to the Creditor directly.
 Attachment is limited by the purpose of the trust.75
 Spendthrift Provisions: prevents any assignment and attachment of a claim.
 Exceptions: U.S. Government or State, Spousal or Child Support, or a
Creditor that provides the necessities of life (healthcare)
Modification and/or Termination of Trust:
o Trustor:
 Inter Vivos Trust: once created, it is irrevocable (not amendable, terminable)
 Testamentary Trust: terms set up in will, and are modifiable until execution of
the will (Trustor’s death and probate)
 Revocable Living Trust: modifiable and terminable during the lifetime of the
Trustor, but becomes irrevocable at their death
o Trustee:
 Termination: (rarely happens) most trusts terminate on their own, but can be
terminated for:
 Lack of a Beneficiary
 Uneconomical Circumstances (distributions/expenses of managing
trusts are “eating up” the corpus)
 Modification:
 Doctrine of Changed Circumstances: (older test) a trustee is given the
ability by court to modify the administrative terms of the trust if:
o Trustee can show changed circumstances occurred that were
not anticipated by the Trustor;76 AND
o The modification will further the purposes of the trust.
 Doctrine of Equitable Deviation: (Restatement 3rd) a trustee is given
the ability by the court to modify the administrative OR distributive
terms77 of the trust if:
Discretionary power in distributions allows the Trustee to better safeguard against Creditor attachment by not
making distributions.
75
Ex: a trust for health can only be attached by healthcare creditors.
76
Ex: changing zoning laws
77
In re Riddell (holding that when a child was diagnosed with schizophrenia after the trust creation, the trustee
was able to petition to change the distribution term from an outright distribution to a special need trust).
o
o
Trustee can show changed circumstances occurred that were
not anticipated by the Trustor; AND
o The modification will further the purposes of the trust.
 Cy Pres: Where property is given in trust for a particular purpose, and
such as purpose is accomplished, or it is impossible or impractical to
carry out that purpose; 78 if the court determines that the Trustor had a
general charitable intent as opposed to a specific charitable intent,79 the
doctrine of Cy Pres permits the court to alter the purpose or charitable
object while striving to remain as true to the Trustor’s original goal as
possible.
Beneficiary: [Claflin Doctrine] For a trust to be modified, all beneficiaries must consent
to the modification or termination, and the modification or termination must not
interfere with the material purpose of the trust (yet to be performed).80
 Exception: If the Trustor is alive and joins the Beneficiary in the request to
terminate.
Non-Probate Transfers




78
Contracts Payable At Death: Beneficiary designations attached to financial accounts. On death,
they will go to the beneficiary outside of probate.
o Beneficiaries cannot touch the assets during the lifetime of the creator.
o Includes life insurance policies
o Anti-Lapse rules do not apply.
o If there is no beneficiary to take, this comes back into the estate and passed through the
residue or through intestate succession.
Joint Tenancy: Also bypasses a will and passes through a right of survivorship.
Inter Vivos Trust: created during the lifetime of the Trustor. Will bypass Probate as legal title is
no longer vested in the Trustor.
Gifts: outright transfers during life
o Present intent to make a gratuitous transfer
o Property must be Delivery to Donee
 Actual Delivery: physical transfer of property from donor to donee
 Constructive Delivery: when the donor transfers to the donee a means of
obtaining possession or control rather than the property itself
 Symbolic Delivery: when the donor gives to the donee something that
represents the property but not the property itself
o Property must be Accepted by Donee
In re Neher’s Will (holding that a Trust to be used for a hospital was impractical because another hospital was
just built nearby defeating the need and there were not enough funds in the Trust to establish this one).
79
Ex: If the Trust was set up to fight AIDS, and a cure was found, the court will have to determine if the Trustor
wanted the Trust to continue to be used to fight other diseases or if it was specific to AIDS and will now end.
80
In re Estate of Brown (holding that a trust designated to pay for the education and then the care of the
beneficiary could not be terminated upon the completion of the education because the latter purpose still was
ongoing).