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					Wills and Trusts Outline

      Preliminary Issues
           o Choice of law
                  Real property – state of location
                  Personal property – state of domicile at death
           o Simultaneous death
                  5 day rule; other must survive 5 days before they can take
                     property and survivorship must be proven by clear and
                     convincing evidence
                  Janus v. Tarasewicz
      Intestacy
           o UPC
                  Surviving Souse §2-102
                         Entire estate if 1) no children or parent survives the
                            decedent or 2) all of the surviving children are also
                            children of the spouse
                         ¾ if no children but a parent survives; plus first
                            $300,000 for the surviving spouse
                         ½ if all of the decedent’s issue are also of the surviving
                            spouse, but surviving spouse has one or more issue not
                            of decedent; plus first $225,000 for the surviving spouse
                         ½ if decedent has children not of surviving spouse; plus
                            first $150,000 to surviving spouse
                  Heirs other than Surviving Spouse §2-103 – any part of the
                     estate not passing to surviving spouse, passes in the following
                         Children
                         Surviving parents
                         Brothers/sisters
                         Grandparents ... if there are maternal and paternal
                            grandparents, estate is split in half, and their
                            descendants takes by representation. §2-103(4)
                         The state
                  Principles of Representation –
                         Per capita at each generation
                  Adoption – if adopted by a stepparent, the adopted stepchild is
                     not only a child of the adoptive stepparent and the genetic
                     spouse, and the child can inherit from the other genetic parent
                     (but other genetic parent cannot inherit from adopted child)
                         Equitable adoption?
                  Posthumous children - §2-120
                         Decedent consented during life to posthumous
                            conception or by other clear and convincing evidence
                            (intent to support children after death)
                Child must be in utero within 36 years of death and is
                 not a clone
       Surrogacy §1-121
              Surrogate is not the mother of the child, unless the child
                 is genetic of the mother and no one else has a
                 parent/child relationship.
       Advancement §2-109
              Presumption that decedent did not intend to create an
                 advancement; can be overcome by a contemporaneous
       Disqualification by misconduct
              Treated as if slayer had disclaimed the property
                     o § 2-803 a final criminal conviction is conclusive,
                         acquittal however is not dispositive of the
                         acquitted individual’s status as a slayer; use
                         preponderance standard. If there is a pending
                         appeal, burden shifts to convicted to overcome
                         preponderance standard.
              Parent barred from inheriting from or through child if
                 child died before 18 years and there is clear and
                 convincing evidence that immediately before child’s
                 death, parental rights could have been terminated
       Disclaimer §2-1105,6
              Refusal to accept an inheritance
              Disclaimant treated as having died before the decedent
                 or before the time of the distribution
o California - §6401 intestate division
       Surviving spouse
              Surviving spouse gets all of CP/QCP
              Surviving spouse gets the following SP:
                     o All, if no issue, parent, sibling, or child of sibling
                     o 1/2 if:
                             Decedent leaves only one child or issue of
                                 one deceased child
                             Decedent leaves no issue, but leaves a
                                 parent or their issue
                     o 1/3 if:
                             more than one child
                             one child and issue of one or more
                                 deceased children
                             issue of two or more deceased children
       If no surviving spouse - §6402 ???review
              Children
              Surviving parents
              Brothers/sisters
                       Grandparents/ their issue
                       Step-children
                       Next-of-kin, but where there are two or more collateral
                        kindred in equal degree who claim through different
                        ancestors, those with nearest ancestor preferred
                     Parents of pre-deceased spouse or their issue
                     State
                Principles of representation §240
                     Modern per stirpes – estate divided equally at the first
                        generation in which there are living takers
                Adoption –
                     severs the relationship between adopted person and
                        natural parent unless
                            o Natural parent and adopted lived together at any
                                time as parent and child (or parent died after
                                conception, before birth), and
                            o Adoption was by the spouse of either of the
                                natural parents or after the death of either of the
                                natural parents
                            o Child takes from natural parents, but parents
                                don’t take from natural child after adoption.
                     Equitable adoption - §6454
                            o Relationship began during the parson’s minority
                                and continued throughout joint lifetimes of the
                                person and person’s foster parent
                            o Est. by clear and convincing evidence that foster
                                parent would have adopted child but for legal
                     Posthumous children - §249.5
                            o Can only consent in writing to support children
                                after death.
                            o Child must be in utero within 2 years of death
                                and is not a clone
                     Disqualification by misconduct
                            o Treats slayer as having predeceased the one
                                killed § 259  this extends beyond intestacy
                                into wills and nonprobate property
                            o Also, disqualifies an heir based on pattern of
                                physician abuse or neglect to elder or dependent
                                     Abuse means physical abuse, neglect,
                                        false imprisonment, and fiduciary abuse
   Wills
       o Mental Capacity
            RST req.
                18 years or older
                must understand
                     o the nature and extent of property
                     o natural objects of bounty
                     o disposition he is making of that property
                     o capable of relating these elements to one another
                        and forming an orderly desire regarding
      CA §6100.5 person not mentally competent to make a will if
         the individual does not have sufficient mental capacity to be
         able to
              Understand the nature of the testamentary act
              Understand and recollect the nature and situation of
                 his/her property
              Remember and understand his/her relations, whose
                 interests are affected by the will
o Insane Delusion
      A belief which testator adheres to despite all evidence and
         reason to the contrary. Has to relate to material aspects of the
         will. Those provisions will be stricken if successful.
              Notice social constructions of what is “normal”?
      CA – individual suffers from a mental disorder with symptoms
         including delusions or hallucinations, which result in the
         person’s property in a which, except for the existence of the
         delusions, he or she would not have done.
o Undue influence
      Elements - RST
              Donor susceptible
              Wrongdoer opportunity
              Disposition to exert
              Result appearing to be effect
      Burden of proof – presumption of undue influence if:
              Confidential relationship – mostly any reliant
              Suspicious circumstances
                     o Donor is weakened condition
                     o Wrongdoer participation in will
                     o Whether donor had independent advice
                     o Whether will prepared in secrecy or haste
                     o Whether donor’s attitude towards others
                        changed as a result of wrongdoer
                     o Discrepancy between new and old wills
                     o Whether disposition of property would be
                        regarded as unfair.
      CA statutory “per se” rules 2-1350, 2-1351
                Prohibits caretakers of a dependent adult who is the
                 transferor, or people with a fiduciary relationship to the
                 decedent, or person who drafted instrument for
                 decedent, from taking w/o certification of independent
                 review or clear and convincing evidence otherwise.
o Formalities
      UPC 2-502; CA 6110
      Attested Wills
             Writing
             Signed by the testator
                  o Full name, mark, cross, abbreviation, or
                      nickname can be sufficient.
                  o Signing the will in the testator’s presence and
                      direction is OK
             Attested by witnesses
                  o Basic requirements
                           UPC – signed by at least 2 individuals,
                             each of whom signed within a reasonable
                             time after the individual witnessed either
                             the signing of the will or the testator’s
                             acknowledgement of the will (no
                             presence req.)
                           CA – testator must sign or acknowledge in
                             the presence of two other people who are
                             present at the same time. Witnesses must
                             sign before the testator’s death, but not at
                             the same time or in each other’s presence.
                  o “presence” definitions
                           common sense
                           line-of-sight
                           conscious awareness
                  o purging of interested witnesses
                           UPC – gets rid of this rule
                           CA – such witness, if he testifies, is a
                             rebuttable presumption that the interest
                             was acquired by undue influence. If this
                             burden not overcome, the witness’ share
                             is reduced to the intestate amount.
                  o Order = “continuous transaction” test.
      Holographic Wills
             UPC 2-502(b) will that doesn’t comply with above is
              valid as a holographic will, whether witnessed or not, if
              the signature and “material portions” of the document
              are in the testator’s handwriting. Extrinsic evidence to
              determine intent?
               CA holographic will provision? “material provisions”
                must be handwritten. But any statement of
                testamentary intent in testator’s handwriting or as part
                of a commercially printed form will. Extrinsic evidence
                admissible to determine if a doc. Is a holographic will
      Curing defects
             Substantial compliance – court may deem a defectively
                executed will as being in accordance with statutory
                formalities if the will nonetheless fulfills the purposes of
                those formalities
                    o Preventing fraud
                    o Channeling function?
                    o Ritual/cautionary function? ~ pg. 260?
                    o evidentiary
             Harmless error – court may excuse noncompliance if
                there is clear and convincing evidence that the decedent
                intended the document to be his will – UPC rule 2-503
o Revocation UPC 2-507; CA 6120
      Subsequent writing
             Subsequent will that doesn’t expressly provide that it’s
                revoking earlier wills, will do so by inconsistency
      Physical act w/ intent of revoking will
             Partial revocation by physical act allowed
      Presumption if will not in possession of testator at death, but
        had it before death, presumed to have destroyed it.
      Dependent relative revocation – DRR provides that the
        revocation of all or part of a will is ineffective if the revocation
        is based upon a mistake. Courts will pretend the revocation
        was upon a condition that wasn’t met.
             Traditionally DRR applies when testator revokes a will
                under a mistaken belief they have a valid will
                somewhere else
      Revival
             UPC - Old will revived if it is evident from the
                circumstances that testator intended previous will to
                take effect as executed. If there are terms in later will,
                they must show that testator intended previous will to
                take effect.
             What is CA law?
o Revocation by law
      UPC 2-804 – divorce revokes any provision in the decedent’s
        will or nonprobate transfer for the divorced spouse
o Components of a Will
        Doctrine of integration of wills – all papers present at the time
         of execution, intended to be part of the will, are integrated into
         the will
      Republication by codicil – will treated as re-executed as of date
         of codicil unless inconsistent with testator’s intent. Does NOT
         cure defects of an invalidly executed will.
      Incorporation by reference – UPC 2-510 – a writing in
         existence when a will is executed may be incorporated by
         reference IF: the language of the will manifests this intent and
         describes the writing sufficiently to permit its identification.
      Items of tangible property – UPC 2-512 a will may refer to a
         written list to dispose of items of personal property not
         otherwise specifically disposed of by the will, other than
         money. Writing must be signed and describe items and
         devisees with reasonable certainty.
      Acts of independent significance – UPC 2-512 a will may
         dispose of property by reference to acts and events that have
         significance apart from their effect upon dispositions made by
         the will, whenever they might occur. (this is counter to
         general rule for specific devises).
o Construction/correction of a will
      Traditional approach: extrinsic evidence may be admitted to
         resolve some ambiguities, but the plain meaning of the words
         cannot be disturbed by evidence that another meaning was
         intended. Patent v. latent ambiguities?
      UPC 2-805 – court may reform the terms of a governing
         instrument, even if unambiguous, to conform to terms of
         transferor’s intention if it is proved by clear and convincing
         evidence that testator’s intent and terms of instrument were
         affected by a mistake of fact or law.
      CA 6111.5 – extrinsic evidence admissible to determine
         whether a document constitutes a will or to determine the
         meaning of a will or unclear portion of a will if the meaning is
o Antilapse statutes (death of beneficiary before testator)
      These rules substitute another beneficiary for the stated
      UPC 2-605 – if the devisee who is a grandparent or a lineal
         descendent of a grandparent of the testator is dead at the time
         of execution, issue of the deceased devisee who survives the
         testator by 5 days takes in their place. If they are all the same
         degree of kinship they take equally, otherwise more remote
         take by representation.
      CA 2-1110 – if a transferee predeceases the transferor, issue of
         predeceased take in the his/her place per representation.
               The transferee must be a person who is kindred of the
                transferor or kindred of a surviving, deceased, or
                former spouse of the transferor.
      Class gifts
             UPC 2-603(A)(4) save the gift for the issue of the
                predeceased class member in cases where the class
                member died before or after execution.
             CA 21110(a) – issue of the predeceased transferee in
                cases of class gifts takes unless transferee died before
                the execution of the will and that fact was known to the
                transferor when will was executed.
o Ademption
      Traditional rule
             Ademption by extinction (identity theory) – only
                applies to specific devises; if the property is no longer in
                the testator’s possession, the devise fails
             Ademption by satisfaction – same as advancement in
                intestacy; applies when testator makes a property
                transfer to a devisee after executing the will.
                    o UPC - If testator is parent of beneficiary and
                       property is of a similar nature to that devised by
                       the will, there is a rebuttable presumption that
                       the gift satisfies the devise made by the will.
                    o CA 21135 – req. a testamentary declaration of
                       intent or transferor’s contemporaneous written
                       statement or transferees written acknowledge
                       that gift is in satisfaction of testamentary gift.
      UPC 2-606(a) – modifies traditional rule to exclude property
        owned by testator at death acquired as a replacement for
        specifically devised property.
             If that’s not possible, then transferee gets a pecuniary
                devise equal in value of other specifically devised
                property disposed of during the testator’s lifetime, to
                the extent that ademption would be inconsistent with
                testator’s intent.
      CA 21332,3 – entitled to changes in form of securities. Entitled
        to unpaid balance of the purchase price or eminent domain
        award, unpaid proceeds from life insurance, or any property
        acquired as a result of foreclosure.
o Abatement (default order)
      Intestate property
      Residuary devises
      General devises (in CA first to nonrelatives, then to relatives)
      Specific and demonstrative devises are last to abate and
        reduced pro rata. (in CA first to nonrelatives, then to relatives)
                 UPC – if testamentary plan would be defeated by the order of
                  abatement, it abates as necessary to give effect to intention of
   Will Substitutes
       o Revocable trusts – UTC 603
                (a) while a trust is revocable, the rights of the beneficiaries are
                  subject to the control of, and duty of the trustee are owed
                  exclusively to the settlor.
       o Other – UPC 6-101 validates will substitutes, says that they are not
           “testamentary” and therefore do not need to comply with the wills act.
                Life insurance – whole v. term
                Pension accounts – note ERISA plans mandate that half of the
                  death benefits go to the spouse. Pre-empts state law.
                Joint accounts – note (common law rule) when joint bank
                  account is est. with funds of one person, a gift is presumed; can
                  be rebut by intention of an agency or convenience account
                  (only gave some power over account)
       o Application of wills doctrine – RST? §7.2 – will substitute is ... to the
           extent “appropriate” subject to rules applicable to testamentary
                “superwills” are not allowed.
   Protecting Spouses and Children
       o Note CA community property system - no review here
       o SS, homestead, personal property set-aside, family allowance
       o Forced share/elective share.
                UPC 2-202,3
                       1) determine the size of the augmented estate. It
                             o decedent’s net probate estate
                             o decedent’s nonprobate transfers to others
                                      inc. gifts over 13,000 2 years before death
                                      inc. irrevocable transfer in which
                                         decedent retained right of enjoyment or
                                         income from
                                      inc. any transfer where decedent created
                                         a power over income or property for
                                         decedent’s benefit.
                             o decedent’s nonprobate transfers to surviving
                             o surviving spouse’s property and nonprobate
                                 transfers to others.
                                      inc. gifts over 13,000 2 years before death
                       2) determine what part of the augmented estate is
                         deemed the marital estate pg 499.
               3) split the marital estate in half (that’s the forced
             4) subtract from the marital estate the following:
                    o whatever the surviving spouse is receiving at
                        decedent’s death
                    o spouse’s own property that counts as marital
                        property (this is not divided in half)
                             life estate renounced by surviving spouse
                               not charged against her elective share.
             5) If this is less than $75,000, pay that; if more - forced
                share paid pro rata contribution by other beneficiaries.
      Note if non-acquiring spouse dies first, she cannot devise any
        of the marriage’s earnings.
      Traditional rule separated forced share probate from
        nonprobate elective share.
      Are trusts included??? Illusory transfer test v. intent to defraud
        test. Does a trust corpus become part of the augmented estate?
o Spouse omitted from premarital will
      UPC 2-301 – if testator’s surviving spouse married the testator
        after the testator executed his will, the surviving spouse is
        entitled to receive, as an intestate share, no less than the value
        of the share of the estate he/she would have received if the
        testator had died intestate as to the portion of the testator’s
        estate not devised to a child born of the testator’s current
        spouse, unless
             Will made in contemplation of marriage
             Will expresses the intention that it be effective
                notwithstanding any subsequent marriage
             Testator provided for spouse by transfer outside the
                will and intent that transfer be in lieu of testamentary
      CA 21610 – if decedent fails to provide in testamentary
        instrument for the surviving spouse and marriage after
        execution of testamentary instruments, shall receive:
             ½ of the CP and QCP that belongs to decedent
             share of SP of decedent that spouse would have
                received in intestacy
             EXCEPT if any of the following est.:
                    o Failure to provide for spouse in testamentary
                        instruments were intentional and that intent
                        appears from testamentary instruments
                    o Decedent provided for spouse by nonprobate
                        transfer with intent that transfer be in lieu of a
                        provision in testamentary instruments
                            o Spouse made a valid agreement waiving right to
                                share in decedent’s estate
       o children omitted from will
              UPC 2-302
                    (a)(1) no child living when will created, and will doesn’t
                        provide for after-born or after-adopted child, and will
                        does not devise all or substantially all of the estate to
                        the other parent of the omitted child who survives and
                        is entitled to take, then the child gets an intestate share
                            o it appears from will that omission was
                            o the testator provided for the omitted child
                                outside of the will and intent for that transfer to
                                be in lieu of testamentary provision
                    (a)(2) if testator had one or more children living when
                        he executed the will and will devised property to one or
                        more then-living children, the omitted after-born or
                        after-adopted child is entitled to a share in the testator’s
                        estate rough equal to that given to other children
                            o unless either exception above
              CA 21620
                    If a decedent fails to provide in a testamentary
                        instrument for the child of decedent born after the
                        execution of will, omitted child shall receive their
                        intestate share, unless omission was intentional and
                        intention appears from the testamentary instruments
                            o Order of satisfaction: intestate estate first,
                                ratably from all other beneficiaries.
   Trusts
       o Creation of trust
              UTC 402(a)(2) – whether the grantor manifested an intent to
                create a trust relationship..
              Jimenez – “it is enough if the transfer of the property is made
                with the intent to vest the beneficial ownership in a third
              Be wary of precatory language
       o Necessity of trust property
              Generally required, except pour-over will.
              What future interest is sufficient? What’s a “mere expectancy”?
                    Seems to include future profits that may be realized, if
                        likely to be realized.
              There must be sufficient certainity – unthank v. rippstein
       o Necessity of trust beneficiaries
        UTC 402(a)(3) a trust must have one or more ascertainable
         beneficiary. Clark v. Campell – “friends” is not sufficient
      CA 15205 – trust requires beneficiary, satisfied if:
              Ascertainable with reasonable certainty, or
              A grant of power to the trustee or some other person
                 select the beneficiary based on a standard or in the
                 discretion of the trustee or other person.
      Honorary trust – transferee is not under a legal obligation to
         carry out the settlor’s stated purpose, but if the transferee
         declines, the property reverts to the settlor or settlor’s
              CA pet trust 15212
              UTC allows court to reduce the amount of money in the
                 trust if too much for its stated purpose.
o Right to Distribution from the Trust Fund
      Mandated trusts
      Discretionary trusts
              Support trusts – support standard limits discretion;
                 may include duty to inquire into financial resources -
              Spray trust – total discretion to spray money at the
o Rights of Beneficiary’s Creditors
      Support & discretionary trusts - UTC §504 – except for claims
         of child support or alimony by child or spouse, a creditor of a
         beneficiary cannot compel a discretionary distribution even if
         the beneficiary could compel such a distribution
              How does this relate to attachment?
      Spendthrift Trusts –
              UTC §502
                     o A) spendthrift provision is valid only if it
                          restrains both voluntary and involuntary
                          transfer of the beneficiary’s interest.
                     o B) creditor of the beneficiary may not reach the
                          interest before its receipt by the beneficiary
                     o EXCEPTIONS §503
                               B) not enforceable against
                                      1) beneficiary’s child, spouse, or
                                          former spouse who has a judgment
                                          or court order against the
                                          beneficiary for support or
              CA 15300 et seq. subject to certain qualifications:
                     o Creditors may reach only a portion of the
                          interest that is payable to the beneficiary
                     o Such trusts may not be created to insulate settlor
                          from creditors.
                     o But beneficiary interest can be reached in
                          satisfaction of money judgment for child support
                          or spousal support 15305
     Self-settled asset protection trusts? UTC 505 – settlor cannot
         shield assets from creditors by placing them in a trust for the
         settlor’s own benefit.
o Modification/Termination of Trust
     Equitable deviation – court will permit trustee to deviate from
         the administrative terms of a trust when compliance would
         substantially impair the accomplishment of the trust on
         account of unanticipated circumstances.
     CA 15409 – authorizes a court to modify the administrative or
         dispositive provisions of the trust or terminate it if
         continuation of the trust under its terms would defeat or
         substantially impair the accomplishment of the purposes of the
     UTC 412
              A) may modify the admin or dispositive terms if,
                 because of circumstances not anticipated by the settlor,
                 it will further the purposes of the trust
              B) may modify the admin terms if continuation would
                 be impractical or wasteful or impair the trust’s
     Claflin doctrine – if continuance of the trust without
         modification is necessary to carry out a material purpose of the
         settlor, then beneficiaries cannot compel modification or
              UTC 411
                     o B) trust may be terminated or modified upon
                          consent of all the beneficiaries if the court
                          concludes that the continuance of the trust is not
                          necessary to achieve any material purpose of the
                     o C) a spendthrift provision is not presumed to
                          constitute a material purpose
                     o E) if not everyone consents, modification or
                          termination may be approved if:
                               2) interests of nonconsenting beneficiary
                                  will be adequately protected.
              CA 15403- permits modification or termination on
                 petition of beneficiaries if the reason for
                 modification/termination outweighs any conflicting
                 material purpose of the settlor.

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