Chapter 4
The Law of Succession
Testate vs. Intestate
o Testacy
o Death with a valid will
o Intestacy
o Death without a valid will
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Holographic Wills
o A will written in the testator’s own handwriting
o Valid in California
Probate Code §6111.
(a) A will that does not comply with Section 6110 is valid as a
holographic will, whether or not witnessed, if the signature and
the material provisions are in the handwriting of the testator.
(b) (b) If a holographic will does not contain a statement as to the
date of its execution and: (1) If the omission results in doubt as to
whether its provisions or the inconsistent provisions of another will
are controlling, the holographic will is invalid to the extent of the
inconsistency unless the time of its execution is established to be
after the date of execution of the other will. (2) If it is established
that the testator lacked testamentary capacity at any time
during which the will might have been executed, the will is
invalid unless it is established that it was executed at a time
when the testator had testamentary capacity.
(c) (c) Any statement of testamentary intent contained in a
holographic will may be set forth either in the testator's own
handwriting or as part of a commercially printed form will.
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Nuncupative
o An oral will
o Spoken in the presence of witnesses
o Not valid in California
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Statutory Will
o A fill-in-the-blank will created and
authorized by state statute
o CA Statutory Will
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Joint or reciprocal will
o Usually between husband and wife
o Made at same time and name each
other as mutual beneficiary.
o Check validity of joint will for each
state
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Living Will
o A document separate from a will that
expresses a person’s wish to be
allowed to stay alive or to die by
natural consequences
o Not really a will disposing of assets
but more of directive
o Advance Health Care Directive
o CA Probate Code §§4670-4678
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Types of Gifts in a Will
o Specific bequest or legacy
o Gift of a particular item or class of
personal property
o Specific Devise
o A gift of real property
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Legacy
o Demonstrative
o A gift of a specific monetary amount from
a particular item or sale of item
o E.g. $10,000 from sale of house
o General
o A gift of a fixed amount of money from
the general assets of the estate
o E.g. I give the sum of $10,000 to …
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Residuary
o A gift, either by legacy or devise, of
all of the testator’s property not
otherwise disposed of specifically
o Residuary clause distributes
remaining assets of the decedenttestator’s estate after all other gifts in
the will have been distributed
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What happens when the gift is not present at time
of death?
o Ademption
o An intentional act by testator, while alive, to cancel or
revoke the gift or to deliver the gift to another or to the
beneficiary (ademption by satisfaction)
o Lapse
o Failure to distribute a gift in the will because the beneficiary
dies before the testator
o Anti-lapse statue – gives the gift to the beneficiary’s children
or heirs who survive the testator
o Abatement
o The process that determines the order in which made by
testator shall be applied to pay the decedent’s taxes,
creditors and expenses
o Cal. Prob. Code §10003. Subject to Part 4 (commencing with
Section 21400) of Division 11 and to Sections 10001 and
10002, if estate property is required or permitted to be sold,
the personal representative may: (a) Use discretion as to
which property to sell first.
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Intestacy
o Death without a valid will
o Distribution is made by state statute
o Kindred-persons related to one another
by blood, a/k/a, next of kin
o Consanguinity-persons related by blood
through a common ancestor
o Affinity – persons related by marriage
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Descendants
o A claimant related to the decedent
through a lineal or collateral blood
line
o See chart on page 106-8
o Exhibits 4.5, 4.6 and 4.7
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Intestate Succession
o Statutes provide rules for descent and
determine distribute of property of the
decedent
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Per Capita Distribution
o Division of intestate estate “by the
heads”
o Distribution without benefit of right of
representation
o Right of a child to receive if the parent or
was still alive
o Distribution by the number of heads alive
o See examples pages 109-10
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Per Capita Distribution
Roadrunner
(Decedent)
Pepe Le Pew
Wiley Coyote
Bugs Bunny
(deceased)
(1/4)
(1/4)
Tom (1/4) –
right of
representation
Jerry (1/4) –
right of
representation
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Per Stirpes
o Distribution based upon the
relationship of those entitled to the
estate
o Distribution by way of a class or group
and not by heads or individuals
o Example page 111
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Per Stirpes Distribution
Charlie Brown
(decedent)
Lucy
(deceased)
Peppermint
Patty (1/6) –
right of
representation
Linus
Schroeder
(1/3)
(1/3)
Marcie (1/6) –
right of
representation
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CA Intestate Succession
Cal. Prob. Code §6402. Except as provided in Section
6402.5, the part of the intestate estate not passing to the
surviving spouse or surviving domestic partner, as
defined in subdivision (b) of Section 37, under Section
6401, or the entire intestate estate if there is no surviving
spouse or domestic partner, passes as follows:
(a) To the issue of the decedent, the issue taking equally
if they are all of the same degree of kinship to the
decedent, but if of unequal degree those of more
remote degree take in the manner provided in Section
240.
(b) If there is no surviving issue, to the decedent's parent
or parents equally.
(c) If there is no surviving issue or parent, to the issue of
the parents or either of them, the issue taking equally if
they are all of the same degree of kinship to the
decedent, but if of unequal degree those of more
remote degree take in the manner provided in Section
240.
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CA Per Stirpes Distribution
o Ca. Prob. Code §240. If a statute calls for
property to be distributed or taken in the
manner provided in this section, the
property shall be divided into as many
equal shares as there are living
members of the nearest generation of
issue then living and deceased
members of that generation who leave
issue then living, each living member of
the nearest generation of issue then
living receiving one share and the share
of each deceased member of that
generation who leaves issue then living
being divided in the same manner
among his or her then living issue.
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Rights of Children and Grandchildren of Intestate
Decedent
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Rights of Parents of Intestate Decedent
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Rights of Siblings of Intestate Decedent
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Escheat
o The passage of an intestate’s property
to the state when there are no
surviving blood relatives or spouses
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Rights of Survivors
o Surviving spouses
o Right of election
o Spouse’s choice of statutory share or gift under
the will
o Cal. Prob. Code §§100-101
o ½ of community or quasi-community property
o Forced share
o Statute that authorizes the spouse to make
the choice
o Same-Sex Couples
o California recognizes inheritance rights for
same-sex couples who have properly
entered into a domestic partnership.
o Receives inheritance rights fully equal to
surviving marital spouse
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Rights of Surviving Spouse
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Divorce
o If granted after execution of the will,
gift determined by state law
o Generally, divorce revokes the gift to
the former spouse and not the will
itself
o Gifts to former spouse usually pass to
residuary beneficiary
o Legal separation does not change
former spouse status
o Cal. Prob. Code §6122(d)
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Marriage
o Subsequent marriage may revoke
entire will-state by state analysis
o Compare joint tenancy created prior
to marriage
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Premarital agreements
o Contracts between man and woman
before their marriage where property
rights are usually predetermined
o Occurs usually in second marriages
to protect children of first marriage
and to protect second spouse
o Compare post-marital agreement
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Children
o Issue: all persons who have descended
from a common ancestor
o Includes children born out of wedlock
o Natural children are treated the same as
adopted children
o Nonmarital children
o May inherit from non married parents but
governed on a state by state basis
o Pretermitted (Omitted) and Posthumous
Children
o Omitted child in a will
o Look to statute to determine affect of whether
intentional or not (see next slide)
o Parents can intentionally disherit children; unlike
disheriting a spouse
o Posthumous child: given intestate share of the
deceased father’s estate
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Omitted Children – Cal. Prob. Code §§2162021621
o 21620. Except as provided in Section 21621, if a decedent
fails to provide in a testamentary instrument for a child of
decedent born or adopted after the execution of all of the
decedent's testamentary instruments, the omitted child shall
receive a share in the decedent' s estate equal in value to
that which the child would have received if the decedent
had died without having executed any testamentary
instrument.
o 21621. A child shall not receive a share of the estate under
Section 21620 if any of the following is established: (a) The
decedent's failure to provide for the child in the decedent's
testamentary instruments was intentional and that intention
appears from the testamentary instruments. (b) The decedent
had one or more children and devised or otherwise directed
the disposition of substantially all the estate to the other
parent of the omitted child. (c) The decedent provided for
the child by transfer outside of the estate passing by the
decedent's testamentary instruments and the intention that
the transfer be in lieu of a provision in said instruments is show
by statements of the decedent or from the amount of the
transfer or by other evidence.
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Slayer Statutes
o Abolish the right of a convicted murderer,
including a spouse or child, to inherit by will or
intestacy the property of the victim.
o Cal. Prob. Code §250
(a) A person who feloniously and intentionally
kills the decedent is not entitled to any of the
following: (1) Any property, interest, or benefit
under a will of the decedent, or a trust created
by or for the benefit of the decedent or in which
the decedent has an interest, including any
general or special power of appointment
conferred by the will or trust on the killer and
any nomination of the killer as executor, trustee,
guardian, or conservator or custodian made by
the will or trust. (2) Any property of the decedent
by intestate succession.
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