Wills Outline
1. Attorney Malpractice Relating to Wills
a. Whenever an attorney messes up the execution or revocation of a will, he can be
sued in negligence (tort liability)
2. Execution of Wills
a. Requirements for a Formal (typed) Will
i. Testator must be at least age 18;
ii. Executed with testamentary intent;
iii. In writing;
iv. Signed by the testator or another person at the testator’s direction and in
his presence
1. Doesn’t have to be signed at the end of the will; Signature can be
spelled wrong; Can be an “X,” fingerprint, or some other mark
2. Cannot be a typed signature
v. Signed or acknowledged in the joint presence of two witnesses;
1. Two Views on What Constitutes “Presence”
a. Scope of Vision Test (minority rule):
i. The witnesses are in the testator’s presence only if
they can each see him sign or acknowledge the will
were they to look (no obstructions to view the
testator, even hospital screens)
b. Conscious Presence Test (majority and California rule)
i. Witnesses are in the testator’s presence if they are
conscious of where the testator is and what he is
doing (e.g., ability to maintain constant verbal
communication)
vi. “Attested” to (signed) by two disinterested witnesses who know the
instrument is a will
1. The witnesses do not have to sign at the same time or in the
presence of each other
2. Supernumerary Rule
a. The fact that a third witness did not comply with the
execution requirements (e.g., T did not sign or
acknowledge the will in her presence; witness is interested)
is immaterial as long as two other witnesses did comply
3. Order of Signing
a. A witness can sign the will before the testator (order is not
critical) as long as the execution ceremony is all part of one
continuous, contemporaneous transaction
4. Disinterested Witnesses
a. Witnesses must be disinterested at the time the will is
executed (they must not receive a pecuniary benefit under
the will)
i. A will is still valid if it is signed by an interested
witness, but there is a rebuttable presumption that
the gift was made while under undue influence
1. If the interested witness cannot rebut the
presumption, he can only take the lesser of
what is left to him in the will or what he
would have taken if the decedent had died in
testate (or the lessor of what is left to him if
there were two wills)
b. Requirements for Holographic (handwritten) Wills
i. Signature (anywhere on the will) and material provisions (identity of the
property and beneficiaries) must be in the handwriting of the testator
1. The statement of testamentary intent can be set forth in the
testator’s own handwriting or as part of a commercially pre-printed
form (testamentary intent can be proven through extrinsic
evidence)
a. However, if a handwritten note is found with a formal will
that requests a change be made in the will, there must be
clear testamentary intent (e.g., “please make the following
change to my will” is not sufficient; “I hearby change my
will to read…” would be sufficient)
ii. Does not have to be dated or witnessed
1. However, if a holographic will is not dated, it will be presumed to
have been executed before any other wills executed or found at the
testator’s death
c. When Wills Are Executed In Other States, But Devise Property Held in California
i. California will recognize an otherwise invalid will (one that does not meet
California’s requirements) executed in another state if:
1. The will is valid where it was actually executed;
2. The will is valid in the state where the testator was domiciled when
executed; or
3. The will is valid in the state where the testator was domiciled at his
death
d. Admitting a Will to Probate
i. Proof of Wills
1. To admit a will to probate and prove its validity, the oath of any
one attesting witness must be taken before the circuit judge or
court clerk
a. If witnesses cannot be found or are incompetent, the oath of
any personal representative that he believes the writing to
be the decedent’s last will is sufficient
2. Exception: Self-Proving Wills
a. A will is self-proving if at the time the will was signed by
the testator and attesting witnesses (or sometime thereafter
within the testator’s lifetime), the testator and witnesses
sign self-proving affidavits under oath before a notary
public
i. If a will is self-proving, formalities of execution are
conclusively presumed and cannot be challenged on
them (although mental capacity, lack of fraud,
undue influence, etc. can still be challenged)
3. Revocation and Modification of Wills
a. In the absence of contrary intent, revocation of a will revokes all codicils thereto,
but revocation of a codicil to a will does not revoke the will (the original
provisions of the will are presumptively revived)
b. Three Methods of Revocation:
i. Express Revocation (when a subsequent will revokes a prior will, or part
of a prior will, expressly; Will #2 states “I hearby expressly revoke all
prior wills”)
1. Example: Writing and signing the statement “I cancel this will” in
the margin is a sufficient express revocation
2. Once an express revocation of a prior will has been made in a
subsequent valid will, the first will is immediately revoked and
cannot be reinstated later unless:
a. It still exists;
b. The testator intended Will #1 to be reinstated; and
c. Will #2 is revoked by physical act
ii. When a subsequent will revokes a prior will, or part of a prior will, by
inconsistency
1. Two Wills Both Containing Remainder/Residue Clauses
a. Example: If Will #1 leaves ½ to A, ¼ to B, and remainder
to C and Will #2 leaves ¼ to A, ¼ to B, and remainder to
D, Will #2 will revoke Will #1 because the term
“remainder” means everything not given to someone else
and this makes Will #2 completely inconsistent with Will
#1.
2. Two Wills Where The Second Will Contains a Remainder/Residue
Clause
a. The second will’s residuary clause revokes the first will in
its entirety by inconsistency and the second will controls
3. Two Wills Not Containing Remainder/Residue Clauses or Two
Wills Where Only the First Will Contains a Residue Clause
a. The wills will be read together and both will be given effect
i. Example: Will #1 leaves Blackacre to A and
remainder to B. Will #2 leaves Whiteacre to C.
Blackacre will go to A, Whiteacre will go to C, and
the remainder will go to B.
b. The second will is presumed to be a codicil to the first will,
and if there are any inconsistent terms that cannot be read
together, the second (last) will/codicil controls on that term
and revokes the prior will’s term by inconsistency
iii. Revocation by Physical Act:
1. Requirements:
a. Will is burned, torn, canceled, obliterated, or destroyed;
b. By the testator or some other person in the testator’s
presence and by his direction;
c. With the intent or purpose of revoking it
i. NOTE: If the facts do not say the testator was the
one to physically revoke, discuss this (extrinsic
evidence can be introduced to prove she was the
one to revoke)
2. The act of revocation must affect (touch) the words of the will
itself (not a Xerox copy of the will)
a. Examples: If you burn only the side of a will and not the
words, this will not revoke it. However, if you write the
word “cancelled” across the words of the will, this would
be sufficient to revoke.
3. If there are duplicate copies of a will (each copy is formally
executed), and the testator (or someone in his presence and by his
direction) burns, tears, cancels, obliterates, or destroys one of the
copies, all of the duplicates are deemed revoked.
4. If a competent testator in possession of a will dies and his will
cannot be located, there is a rebuttable presumption that the
testator destroyed it with the intent to revoke.
5. “Lost Wills” Rule
a. If a will is destroyed, but is not destroyed in such a way as
to constitute a valid revocation by physical act (e.g.,
testator instructs his attorney to destroy his will, but
attorney destroys it outside of the testator’s presence), the
proponents of the will have the burden of proving the
contents of the lost will by:
i. Introducing a copy of the will and at least one
witness who can say it is a valid copy; or
ii. Introducing other “clear and convincing proof”
iv. “Dependent Relative Revocation” Doctrine
1. Applies when a testator revokes his will upon a mistaken belief
that another disposition of her property would be effective; and but
for this mistake, she would not have revoked the will
a. Court will look to the consistency of the documents and the
consequence of not applying the doctrine
b. Court will not apply the doctrine if it would defeat the
testator’s intent
2. Examples:
a. If the testator defectively executes a subsequent will
revoking a prior will and then destroys Will #1 in the
mistaken belief that Will #2 is effective, Will #1 can be
reinstated
b. If the testator defectively executes a subsequent will
revoking a prior will and then, in the mistaken belief that
Will #2 is valid, write and signs “Will #1 is hereby
revoked. I have made a new will” on the back of Will #1,
the majority of courts will set aside the express revocation
of Will #1 because the mistake appeared in the terms of the
revocation itself
i. If the mistake does not appear in the terms of the
revocation itself (e.g., testator writes and signs “I
hereby revoke this will” and orally states that he has
executed a new will), the revocation will not be set
aside (and Will #1 will remain revoked)
c. Modification (used to amend, change, or add to a will)
i. Codicils
1. A codicil is a testamentary instrument executed subsequent to the
execution of a will intended to modify, alter or expand the will.
2. To be valid, a codicil must be executed with the same testamentary
formalities required for the execution of a will
ii. Handwritten Changes to Holographic Wills
1. If a testator crosses out a gift amount and writes in a new amount
(“1K to A” is changed to “2K to A”), the original bequest is
revoked (through cancellation), and the new gift can be given
effect (holographic changes to holographic wills are given effect)
iii. Handwritten Changes to Formal Wills
1. If a testator crosses out a gift amount and writes in a new amount
(“1K to A” is changed to “2K to A”), the original bequest is
revoked (through cancellation) and the new gift is void (because it
has not been formally executed), unless:
a. The will is re-executed (on the same will);
b. Republished by codicil (formally executed on a separate
writing);
c. The change is signed and constitutes a complete disposition
(e.g., an original gift of $10,000 to X is crossed out and “I
leave $15,000 to X” is written in and signed); or
4. What Speaks as Part of the Will
a. The following doctrines permit documents other than the will itself to be admitted
to probate as part of the will:
i. Integration
1. Papers actually present in their current form at the time the will is
executed that the testator intended to constitute a part of her will
are admissible
a. Intent can be shown by physical or logical connections of
the pages (e.g., proof of internal consistency; each page is
dated or initialed; pages are numbered “1 of 5”, paragraphs
carry over to the next page, etc.) or by the fact that the
pages are all found together in a safe place
ii. Incorporation by Reference
1. A non-testamentary document (one not formally executed) may be
incorporated into the will if:
a. The non-testamentary instrument was in existence in its
current form at the time the will was executed (cannot be
amended or altered after execution of the will);
b. The will manifests an intent to incorporate the document;
and
c. The non-testamentary instrument is referred to in a way
that allows the court to identify and locate the document
2. Holographic wills can incorporate non-handwritten material by
reference
iii. Acts of Independent Significance
1. This doctrine permits the court to fill in certain blanks in the
testator’s will by referring to documents or acts effectuated during
the testator’s lifetime for primarily non-testamentary motives
(motives not solely involving the will)
a. Example: If a will devises “my car” to X and then a few
years later the testator sells original car and purchases a
luxury expensive car, X can receive the new car because
most people do not buy and sell things for the purpose of
changing their will
b. Devising Your “Home and Its Contents”
i. The devisee will take household furnishings and works of art found within
the home
ii. The devisee will not take:
1. Stock, deeds to property, and/or savings accounts (even where the
deeds, certificates, and passbooks are found in the home);
2. Cars located in the garage attached to the house (only those things
that “make a house a home” will pass)
5. Rules of Construction (Lapse, Abatement, Ademption, and Exoneration of Liens)
a. Lapse
i. “When a beneficiary named in a will dies before the testator, the gift
lapses” and the property will pass to the recipient(s) of the
remainder/residue or, if there is no remainder clause, to the testator’s heirs.
1. Exception: Anti-Lapse Statute (applies to predeceasing
beneficiaries under a will, predeceasing beneficiaries under an
insurance policy, and exercises of power of appointments in favor
of the predeceasing beneficiary in a will)
a. If the predeceasing beneficiary is related by blood to the
testator or the testator’s surviving, deceased, or former
spouse, then the gift will pass to the beneficiary’s surviving
issue (lineal descendants; kids/grandchildren)
i. This is true regardless of how the predeceased
beneficiary disposed of her property in her will
b. The anti-lapse statute will not apply (and the gift will lapse)
if the testator’s will specifically states, “To my relative, if
she survives me” (evidences that the testator had an intent
contrary to the anti-lapse statutes)
2. If a will makes a gift to a class (a group where no one is named
individually; “nephews”; “children”), and one of the members of
the class predeceases the testator, all of the remaining members of
the class share equally to the exclusion of the testator’s heirs
a. Exception: Anti-Lapse Statute:
i. If the predeceased member of the class is related by
blood to the testator or the testator’s surviving,
predeceased, or former spouse, the member’s share
will pass to the member’s surviving issue, unless
the class member died prior to the execution of the
will and the testator was aware of that fact when he
executed the will
3. If a will’s residuary estate is devised to two or more persons and
the gift to one of them fails for any reason (e.g., one of them dies
before the testator), the surviving residuary devisees take the entire
residuary estate in proportion to their interests in the residue
a. Exception: Anti-Lapse Statute:
i. If the predeceased devisee is related by blood to the
testator or the testator’s surviving, predeceased, or
former spouse, the devisee’s share will pass to the
devisee’s surviving issue
b. Ademption (applies to specifically identifiable gifts as opposed to general or
demonstrative legacies)
i. Unless the testator has clearly intended otherwise, if specifically
identifiable gifts of real or personal property that are distinct from all
other objects in the testator’s estate (“$10K to A” is not specifically
identifiable because we don’t know which dollars are intended; “100
shares” is not specifically identifiable, but “my 100 shares” is) are not in
the testator’s estate at his death, the gift is adeemed and the transferee
takes only:
1. Nothing; or
2. The remaining property specifically given (even if in a lesser
amount or lesser value than originally bequest); or
3. All related proceeds that are unpaid at the testator’s death
(casualty/fire insurance, eminent domain awards, etc.);
a. Example: If a will leaves a home to X, but the home burns
down before the testator dies, X gets the lot the house was
on and any related insurance proceeds that had not yet been
handed over to the testator at the time of his death
4. Property acquired as a result of a foreclosure of a security interest
on a specifically devised note; or
5. Securities of the same organization acquired as a result of action
initiated by the entity (excluding any acquired by the exercise of
purchase options or consideration paid by the testator);
a. Example: A will bequeaths “100 shares of my ABC stock to
X.” At his death, the testator owned 200 shares (consisting
of the original 100 and an additional 100 distributed by the
corporation through a stock split or stock dividend). X
takes all 200 shares
b. Same rules apply to gifts of securities under a revocable
trust or securities passing as a result of a payable on death
(POD) or transfer on death (TOD) beneficiary designation;
6. Securities of the same organization acquired as a result of a plan of
reinvestment by the testator (i.e., mutual fund shares); or
7. Securities of another entity owned by the testator as a result of
merger, consolidation, or reorganization with the entity whose
shares were originally devised to the devisee
a. Example: Will devises X 100 shares of “my ABC stock.”
ABC is later acquired by XYZ, and as part of the merger,
each shareholder was given one share of XYZ stock for
every two shares of ABC stock they owned. At testator’s
death he owned 50 shares of XYZ stock. X gets the
testator’s XYZ stock
b. Same rule applies for gifts of securities under a revocable
trust or securities passing as a result of a payable on death
(POD) or transfer on death (TOD) beneficiary designation;
and/or
8. Example: A will is executed and subsequently the testator becomes
incompetent. If specifically identifiable devised property is sold
by the conservator, or if condemnation awards or insurance
proceeds relating to the property are paid to the conservator, the
specific devisee has a right to a general legacy equal to the net sale
price, the condemnation award, or the insurance proceeds, unless
the testator’s disability has been adjudicated to have ceased and the
testator survives the adjudication by at least one year
9. Examples: If a will leaves a home to X, but the testator
subsequently sells the home for cash, X does not receive the cash.
However, if after the testator dies there is an outstanding
promissory note and trust deed/lien held by the testator, X would
receive this; If a testator leaves a home to X, but is in the process
of selling the home to A when he dies (there is a contract, but title
has not passed or A has not paid in full yet), the home passes to X
subject to the rights of A to perform the contract. If A then
performs, X will receive any payments/promissory notes/liens, and
if A never performs, X continues to own the home.
ii. Exceptions/Limitations:
1. Demonstrative legacies (gifts of money with instructions as to
where the money is to come from; “$5,000 to X, to be paid out of
the proceeds of the sale of my ABC stock”) are not considered
adeemed if the property instructed to be used is no longer in the
testator’s estate at his death. Other property will be used to fund
the gift.
2. If a gift of stock made under a will is not specifically identifiable
(e.g., “I leave 200 shares of ABC stock to X”), but is no longer in
the testator’s estate at his death, the gift will be considered
adeemed if the corporation involved is a closely held corporation
(shares and not publicly traded and it may be impossible for the
testator’s estate to locate and purchase the 200 shares)
c. Exoneration of Liens (whether a person takes property subject to the testator’s
debt)
i. Whether encumbrances/mortgages are placed on specific property by the
testator before the execution of the will or afterwards, the beneficiary
takes the property subject to those debts, unless the will clearly evinces a
different intent
1. A general instruction in the will to pay debts is not sufficient to
show such an intent
d. Abatement
i. When there isn’t enough money/property in the estate to pay off funeral
expenses, expenses of administration, and/or creditors’ claims, property is
taken in this order (unless testator states otherwise in the will):
1. Intestate Property (e.g., when there is partial intestacy because all
of the residuary beneficiaries predeceased the testator and the antilapse statutes don’t apply);
2. Residuary/Remainder Bequests;
3. General Legacies to Persons Other Than the Testator’s Relatives
(e.g., “I leave the sum of $10,000 to my friend Sam”);
4. General Legacies to Testator’s Relatives (e.g., “I leave the sum of
$10,000 to my brother”);
5. Demonstrative Legacies to Persons Other Than the Testator’s
Relatives (e.g., gift of money left to someone with instructions as
to where the money is to come from; “I leave $500 to my friend, to
be paid out of the proceeds of sale of my ABC stock”)
6. Demonstrative Legacies to Testator’s Relatives;
7. Specific Devises or Bequests to Persons Other Than the Testator’s
Relatives (e.g., “I leave Blackacre to my friend Sam”) (e.g., “I
leave my car to Sam”; “I leave the money on deposit in my Credit
Union savings account to Sam”; these are specific gifts because the
will speaks at the time of the testator’s death and we can
specifically identify the property at that time)
8. Specific Devises or Bequests to Testator’s Relatives
ii. If one or more of these categories are going to be used to pay off the
estate’s debt, a rateable abatement is performed so that each person in
each category affected contributes a part of their gift that is proportionate
to how their gift relates to the total gift to that category.
6. Ambiguities & Mistakes
a. Latent Ambiguities
i. Extrinsic evidence is admissible to clear up a latent ambiguity
1. In the absence of extrinsic evidence, the gift will fail and pass to
the residue
2. Example: If a will gives $5,000 to “my nephew, John Paul Jones,”
but the testator’s nephews are named James Peter Jones and Paul
Frederick Jones (but there is no John Paul Jones), extrinsic
evidence can be introduced to show which nephew the testator
meant
b. Other Ambiguities & Mistake
i. Majority Rule (Plain Meaning Rule)
1. Where words are susceptible to a plain meaning, they are given
that meaning, and extrinsic evidence is not admissible to prove a
mistake in the will (e.g., that the typist accidentally typed in the
wrong devisee’s name for a certain gift)
ii. Modern Trend (California Rule)
1. The court will admit extrinsic evidence to show an intent that is
consistent with any reasonable interpretation of the words used in
the will
a. Example: A gift to the testator’s “uncle” could be
reasonably construed to include his aunt’s husband. Even
though technically “uncle” means “parent’s brothers,”
many people believe that it includes aunts’ husbands too.
iii. Courts will not fill in blanks in a will and the intended beneficiary will
take nothing (e.g., if testator’s will states “I leave $3,000 to ______” and
the secretary testifies that she mistakenly left out X’s name, X takes
nothing)
7. Satisfaction
a. A lifetime gift is not a prepayment of any interest under a will, unless:
i. The will provides for this treatment;
ii. The testator declares in a contemporaneous writing that the gift is to be
deducted from the devise or is in satisfaction of the devise; or
iii. The devisee acknowledges in writing that the gift is in satisfaction
8. Changes in Circumstances (in the marriage/children context)
a. Pretermitted Spouses
i. If a testator marries after the execution of a will, and the testator dies
without having amended or modified the will to include the new spouse,
the omitted spouse (called the “pretermitted spouse”) will receive a share
of the testator’s estate consisting of the decedent’s ½ share of community
property, his ½ half share of quasi-community property, and the share of
his separate property that she would have received if he had died in testate
(capped at ½, even if the decedent has no issue, parents, or etc.).
1. Exceptions:
b.
c.
d.
e.
f.
a. If the failure to provide for the spouse is intentional (if the
will states there is no intention to provide for subsequent
spouses); or
b. If the decedent provided for the spouse outside of the will
(through inter vivos gift or trust) in lieu of a testamentary
gift
ii. The spouse’s pretermitted share is satisfied first from property not
disposed of by the will (intestacy property) and then by prorata
contribution from all other beneficiaries)
Surviving Spouse’s Forced Share in Quasi-Community Property
i. The surviving spouse of a testate California domiciliary is entitled to claim
a forced share of one-half of the decedent’s quasi-community property
1. Electing this forced share requires the spouse to renounce any
other interests in the decedent’s will
Spouse’s Right to Set Aside Inter Vivos Transfers
i. At the election of a surviving spouse, certain transfers of quasicommunity property by a decedent may be set aside (meaning the
transferee must return them to the decedent’s estate for distribution to the
spouse as part of the spouse’s intestate, pretermitted, or forced shares)
ii. The election applies to transfers during marriage:
1. By a California domiciliary;
2. Without the consent or joinder of the spouse; or
3. In right of survivorship form or outright where the decedent
retained either the income or possession of the property or the right
to consume, invade, or appoint the property to himself
Waiver of Rights
i. The rights of a surviving spouse may be waived if:
1. Waived in a writing that is signed by the surviving spouse;
2. There was full disclosure of the rights to be waived; and
3. The surviving spouse had independent counsel
ii. However, even in the absence of these requirements, the agreement is
enforceable if the court determines that it is fair, reasonable, and not
unconscionable
Divorce
i. Unless a will (or revocable inter vivos trust) expressly provides otherwise,
after a will (or revocable inter vivos trust) is executed, if a testator’s
marriage is dissolved through a valid divorce decree or separation with a
complete property settlement agreement (considered a waiver), any will
(or revocable inter vivos trust) provision in favor of the former spouse (but
not including insurance policies) is considered revoked and the property
passes as if the former spouse predeceased the testator.
1. If the parties subsequently remarry or reconcile, however, the
provisions are reinstated.
Pretermitted Children
i. If the testator has or adopts a child after the execution of a will, and does
not change the will to provide for them, the omitted child (“pretermitted
child”) will take an in testate share unless:
1. The omission was intentional and clearly stated in the will as such;
2. The decedent provided for the child outside of the will in lieu of a
testamentary gift, and such intention is shown by statements of the
testator or other evidence; or
3. The decedent already had one or more children when he executed
the will and devised all or substantially all of his estate to the
surviving spouse.
ii. A child’s pretermitted share is satisfied first from property not disposed of
by the will (intestacy property) and then by prorata contribution from all
other beneficiaries
iii. Doctrine of Republication by Codicil
1. A codicil re-dates the will as of the date of the codicil, so if a
codicil to a will is executed after the testator has or adopts a child,
and that codicil does not provide for the child, the will is viewed as
being executed after the birth/adoption of the child and we don’t
have a pretermitted child situation (child takes nothing)
g. Children Thought to Be Dead (Or Children Testator Is Unaware Of)
i. If a testator executes a will and fails to provide for a child on the mistaken
belief that the child is dead or on the mistaken belief that the child does
not exist, the child will receive an intestate share
ii. If a testator executes a will and fails to provide for a child on the mistaken
belief that the child won the lottery and is already wealthy, however,
common law controls and the child will take nothing, unless both the
mistake and what would have been done but for the mistake appear in the
terms of the will itself
1. Exception: If the testator’s mistake is brought about through fraud
(e.g., someone falsely tells the testator that the child won the
lottery in the hopes of receiving a larger gift under the will to the
exclusion of the child), the omitted child’s remedy is a constructive
trust
9. Intestacy
a. If someone has a will that states “all of my estate goes to my descendants” or “all
of my estate is to be divided in the manner provided in Section 240 of the Probate
Code,” the intestacy rules apply
b. If someone has a will that states “all of my estate should be distributed per capita
at each generation” or “all of my estate is to be divided in the manner provided in
Section 247 of the Probate Code,” the estate is divided into one share for each line
of descendants
i. Example: Decedent has four children (A, B, C, and D) and A and B
survive the decedent while C and D predecease (each having one child).
A and B (on the same line of descendants) would split ½ of decedent’s
estate (A gets ¼ and B gets ¼). C’s and D’s issue (on the same line of
descendants) would split the other ½ of decedent’s estate (C1 gets ¼ and
D1 gets ¼).
c. If someone has a will that states “all of my estate should be distributed to my
descendants per stirpes”, “all of my estate should be distributed to my
descendants by right of representation,” or “all of my estate should be distributed
to my descendants in the manner provided in Section 246 of the Probate Code,”
the estate is divided equally among all predeceased children who have issue
(predeceased children with no issue are excluded)
i. Example: Decedent has four children (A, B, C, and D) and A, B, and C,
each have one child (D has no children). A, B, C, and D all predecease the
decedent. There are three predeceased children who have issue (A, B, and
C) and each will get a 1/3 share that will pass to their issue by
representation
d. What Property Passes Through Intestacy
i. The intestacy statute applies only to the decedent’s “probate estate” (the
estate that could have been controlled by a will had the decedent executed
one)
1. “Probate estate” does not include life insurance, property held in
trust, separate or community property held in right of survivorship
form, securities or bank accounts with transfer-on-death (TOD) or
payable-on-death (POD) designations, or property the decedent
doesn’t own at death
e. Order of Inheritance Under the Intestacy Statute
i. Surviving Spouse
1. Surviving Spouse Receives:
a. Decedent’s ½ share of community and quasi-community
property
b. Decedent’s Separate Property
i. If decedent is survived by more than one child (or
their issue), surviving spouse receives 1/3.
ii. If decedent is survived by only one child, only one
child’s issue, parents, or a parent’s issue (aunts,
uncles, etc.), surviving spouse receives ½.
iii. If decedent is survived by no children (or their
issue), no parents, and no issue of parents,
surviving spouse receives the entire separate
property.
ii. Decedent’s Issue (children and grandchildren) (if no surviving spouse or if
property remains after surviving spouse inherits)
1. Principle of Representation
a. Living issue exclude their own issue.
i. If the decedent is survived by a child, that child’s
children (the decedent’s grandchildren) are
excluded from inheriting.
b. Predeceased issue are represented by their own issue.
i. If one of the decedent’s children dies before the
decedent, that child’s children (the decedent’s
grandchildren) will take the predeceased child’s
share and split it equally among them.
c. If the issue are all of equal degree of kinship to the
decedent, they take equally
i. Example: If the decedent has four children, and all
of them predecease the decedent, all of the
children’s children (decedent’s grandchildren) will
take equal shares. Decedent has four children (A, B,
C, and D). A, B, and C have children, but D does
not. If all four children predecease the decedent,
A’s, B’s, and C’s children all take equal shares
(because all takers are equally related to the
decedent)
2. Natural Children
a. Illegitimate Children/Children Born Out of Wedlock
i. If a child is born out of wedlock and the parents
subsequently split and remarry:
1. The child can inherit from the natural
mother (no problem)
2. The child can inherit from the natural father
only if he can show that the man is indeed
his father. The man is conclusively
presumed to be the natural father if:
a. The man and the mother married or
attempted to marry before the child’s
birth;
b. The man and the mother married
(even if marriage is voidable) after
the child’s birth and:
i. The man is named on the
birth certificate; or
ii. The man promised or was
ordered to pay child support
c. The man receives the child into his
home and holds him out as his
natural child; or
d. There is an adjudication of the man’s
paternity (before or after the man’s
death)
3. Adopted Children
a. Adopted children are considered the issue of their adoptive
parents and can inherit from them (and the adoptive parents
can inherit from the adopted child)
b. Adopted children cannot inherit from their birth parents or
take by representation, unless:
i. The natural parent and the adopted person lived
together as parent and child at some point; OR the
natural parent was married to, or cohabiting with,
the other natural parent at the time the child was
conceived, but died before the child’s birth; AND
ii. The adoption was done by the spouse of one of the
natural parents or after the death of one of the
natural parents
4. Step-Children (where one natural parent marries someone else and
that new spouse does not adopt the child)/Foster Children
a. In California, foster children and step children can inherit
from their step or foster parent(s) only if:
i. The relationship began during the child’s minority
and continued through the parties’ joint lives; AND
ii. The child can show by clear and convincing
evidence that the step or foster parent would have
adopted him but for some legal barrier (i.e., natural
parents wouldn’t consent)
1. If the child has reached the age of majority
before the step/foster parent dies, there is no
legal barrier because the step/foster parent
could have adopted the child without the
consent of the natural parents at this point.
5. Advancement
a. At common law, any lifetime gift to a child (or descendant)
is presumed to be an advancement (an advance payment)
on his intestate share (and would be taken into account at
the distribution of the decedent’s estate)
b. California Rule
i. If children will equally share in their decedent
parent’s estate, but one child received gifts from the
parent during his or her lifetime, thereby reducing
the estate that will be shared at death, the gifts will
be deducted as advancement only if:
1. At the time the gift was made, decedent
parent declared in a contemporaneous and
signed writing that the gift was meant to be
an advancement; OR
2. The heir acknowledges in writing that the
gift was intended to be an advancement at
any time
ii. If a gift is deemed an advancement, it only affects
that child’s share, not his issue’s share if he
predeceases the parent
iii. If a gift is deemed an advancement, the value of the
lifetime gift at the time the gift was made will be
added to the estate. The total estate will then be
divided equally among the children, and the child
who received the advancement’s share will be
reduced by the value of the lifetime gift at the time
it was made
1. Example: D had three children and made a
lifetime gift to his daughter A of land worth
$12,000 as an advancement. When D died,
his estate was worth $78,000. $78,000 +
$12,000 = $90,000 estate. Divided by the
three children, each child’s share is $30,000.
A gets $30,000 – $12,000 = $18,000
iii. Parents of the Decedent (as tenants in common) or Their Issue
1. If there is anything remaining in the decedent’s estate, it passes
first to the decedent’s parents as tenants in common. If both
parents are living, they take equally and if one is deceased, the
surviving parent takes the whole.
iv. Grandparents or Their Issue (as tenants in common)
v. Issue of a Predeceased Spouse
f. Simultaneous Death Act
i. When passage of title to property depends on priority of death and it
appears that the persons involved have died simultaneously (there is no
clear and convincing evidence the they did not die simultaneously), absent
a will provision to the contrary, the property of each passes as though he
survived
1. Wills: Treated as though the testator survived and the beneficiary
predeceased (and lapse/anti-lapse applies)
2. Intestacy: Treated as though the intestate decedent survived and
the heir predeceased (heir will not share in inheritance)
3. Insurance: Treated as though the insured survived and the
beneficiary predeceased
4. Joint Tenancy with Right of Survivorship: One-half is treated as
though tenant A survived and one-half is treated as though tenant
B survived (regardless of who furnished the consideration for the
property’s acquisition). Simultaneous death prevents the operation
of the right of survivorship, so one half passes through each
tenant’s estate
ii. Simultaneous Death of Spouses
1. In intestacy situations, a spouse is deemed to have died before the
decedent (and will not inherit from the decedent) if he or she fails
to survive the decedent by 120 hours (5 days).
a. If there is a will, the 120 hour rule does not apply and the
surviving spouse’s estate can take any gifts under the will
as long as she survived the testator – even if for just one
second (or if she survives as long as the will requires)
g. Conduct Barring a Party From Sharing in the Estate (Homicide)
i. A person who feloniously and intentionally (does not include involuntary
manslaughter or negligent homicide) kills the decedent is not entitled to
any benefit from the decedent’s estate by will (lapse and anti-lapse will
not apply either), intestacy, or under life insurance contracts. The property
passes as if the killer predeceased the decedent.
1. Property held with the killer in joint form with the right of
survivorship passes half to the killer and half as if the killer
predeceased the decedent (½ goes to the killer and ½ goes to the
decedent’s estate)
2. An acquittal at criminal law is not controlling (and accused killer
may still not inherit) because only a civil standard (preponderance
of the evidence) is applied to determine guilt for purposes of
inheritance
10. Agreements Affecting Disposition of Property (Renunciation, Will Contracts)
a. Renunciation (or Disclaimer)
i. Before acceptance, an heir, devisee, or appointee of a power of
appointment may renounce his interest in writing in whole or in part
within 9 months after the death of the decedent
1. Renunciation results in property passing as if the renouncing party
predeceased the decedent, unless the will provides otherwise
b. Will Contracts
i. A contract to make a will, not to revoke a will, or to die without a will can
only be enforced if:
1. The will, or a portion thereof, states the material provisions of the
contract (“this will is being executed in accordance with a contract,
the terms of which are…”);
2. The will contains an express reference to the contract (“this will is
being executed in accordance with a contract”) and there is outside
extrinsic evidence proving the terms of the contract; or
3. There is a separate writing signed by the decedent evidencing the
contract
ii. The mere existence of joint or mutual wills does not imply a contract not
to revoke (and these can be changed later)
iii. The remedy for a breach of a will contract is a constructive trust
11. Will Contests
a. Standing to Contest
i. Only persons whose share of the estate would be increased if the contest
were successful can bring a will contest
ii. Will contests must be brought within 120 days of when the will was
admitted to probate
b. Lack of Capacity (burden of proof is on the will contestants)
i. Mental Capacity (ability to form the intent required) to Execute a Will
1. Person must understand:
a. The nature of the testamentary act;
b. That he is making a decision about the disposition of his
property at death (and must know what property he owns
and its form);
c. His relation to his living descendants, spouse, and parents
and those whose interests are affected by the will (who has
a moral claim).
ii. A determination that a person lacks capacity to execute a will or trust must
be supported by evidence of a deficit in one of the following that
significantly impairs the person’s ability to have mental capacity:
1. Alertness and attention;
2. Information processing (e.g., short term and long term memory,
ability to communicate with others, ability to recognize familiar
objects and persons, ability to understand quantities and to think
logically)
3. Thought processing (e.g., deficits in organizing thoughts,
hallucinations, or delusions
4. Mood and affect (e.g., presence of a pervasive and persistent or
recurrent state of euphoria, anger, anxiety, fear, panic, depression,
indifference, or despair)
iii. Evidence of a testator’s capacity or lack of it must relate to the
circumstances surrounding the will’s execution, or a time period shortly
before or shortly after execution
iv. If a testator has been adjudicated incompetent and a guardian has been
appointed, this is evidence of lack of capacity, but it is not conclusive
(because the test for whether a guardian should be appointed is different)
v. Undated Holographic Wills
1. If the testator lacked capacity during any portion of the period
during which an undated holographic instrument could have been
executed, the presumption is that the instrument was executed
during the period of incapacity
c. Undue Influence (mental or physical coercion of the testator) (can be proven to
defeat the entire will or one gift)
i. Elements (will contestants must prove):
1. Testator was susceptible to undue influence;
2. The person alleged to have committed the undue influence had the
opportunity to exercise it;
3. The person alleged to have committed the undue influence had a
disposition to influence for the purpose of personal benefit; AND
4. That the provisions of the will appear to be unnatural and the
result of such influence
ii. A rebuttable presumption of undue influence will arise when it is shown:
1. That a confidential relationship existed between the testator and
the beneficiary who is alleged to have exercised undue influence
(e.g., priest-parishioner; doctor-patient; guardian-ward; financial
advisor, etc.);
2. That the beneficiary participated in some way in procuring or
drafting the will or in some other significant activity relating to the
execution of the will (e.g., gave advice regarding the will); and
3. That the provisions of the will appear unnatural and favor the
person who allegedly exercised undue influence
d. Drafters of the Will
i. A gift made to the person who drafted the will (or to a relative, cohabitant,
or employee of the person who drafted the will) is void, unless:
1. The testator is related to or lives with the drafter; or
2. The will is reviewed by a disinterested attorney
e. No Contest Clauses
i. No contest (or “in terrorem”) clauses (clauses stating that any person who
contests the will shall forfeit his legacy) are valid and enforceable, unless
the contestant claims (with probable cause) that:
1. The will has been revoked;
2. The will was a forgery; or
3. The scrivener, an interested witness, or someone who secured the
inclusion of the no contest clause exerted undue influence