WILLS AND TRUSTS OUTLINE
This is an outline from a “Wills and Trusts” course at a top-tier law school. Use this Outline as a tool for learning the laws of Wills and Trusts, or as a study guide for law school or the bar exam.
WILLS AND TRUSTS INTESTACY: AN ESTATE PLAN BY OPERATION OF LAW I. Intestate Successors: Spouse and Descendants A. Issue: Who gets decedent’s property when decedent dies? Depends B. Issue: Was the property (must go thru each asset) Non Probate or Probate? 1. Non Probate: who holds property at death without having to transfer title (whether the asset is non probate or probate—have to qualify for non) a. Joint Tenancy w/ right of survivorship b. Trusts c. Life Estate—possessory estate and future interest (vested remainder in FSA) d. Life Insurance K—form of 3rd party beneficiary K 2. Probate a. Depends: b. Issue: Did the D die Testate or Intestate? 1) Testate: w/ a Will a) Execution Reqs b) Construction, c) Revocation Reqs 2) Intestate: w/o a Will a) Who and How Much—CA Intestacy scheme Issue: WHO gets the D’s property thru intestacy? Issue: Is there a Surviving Spouse? i) Surviving Spouse: 1st taker Issue if YES: HOW MUCH does he/she get? (1) Community Property: 100% of D’s ½ share of their community property (2) Separate Property: any gifts (a) 100%: if NO Issue (no child), Parents, or Issue of Parents *Child definition: child counted as alive if living OR if dead but survived by issue (b) 50%: if 1 *Child (or Issue of Pred. Child is surviving); OR no issue, but P, or Issue of P Issue: All blood descendants of an individual (children— grandchildren—great grandchildren) (c) 33%: if More than 1 *Child If NO Surviving Spouse then:
ii) Issue of the decedent If NO Issue: Was there a Pred. Spouse: If no, continue to P; if yes, we want to protect the heirs of the predeceased spouse. iii) Predeceased Spouse: look to see if have a Pred. Spouse that died Intestate or Partially Intestate, If YES, then apply: (1) Recapture Doctrine: recapture all qualifying prop that the 2nd spouse received by virtue of the 1st spouse’s death (All A’s prop goes to A’s parents and B’s prop goes to B’s parents) (a) Qualifying Property: Property attributable to the pred spouse—only applies of the decedent dies INTESTATE and it only matters if the decedent has re-characterized the property. (i) Real Property: recapture it if the second spouse dies within 15 years of the pred spouse (ii) Personal Property: recapture it if The 2nd spouse dies within 5 years of the pred spouse, AND The personal prop has a written record or title or ownership, AND The aggregate value must be at least 10K (b/c of cost of administration) (b) Recapture and give to: (i) Issue of Pred Spouse (ii) Parent of Pred Spouse (iii) Issue of Parent of Pred Spouse (iv) Then go back to scheme of § 6402 if none of the above are surviving and pretend § 6402.5 never existed (return to D’s next of kin) iv) Parents of decedent If NO Parents: v) Issue of Parents If No Issue of Parents: vi) Grandparents, or Issue of Grandparents 1st look for Grandparents 2nd look for Issue of Grandparents if Grandparents are not alive vii) Issue of Predeceased Spouse viii) Next of Kin ix) Parents or issue of Parents of Pred. Spouse x) Escheats to the state if no one to give the property C. Survival Requirement: An Individual must survive decedent in order to take, absent an express provision otherwise. 1. Default Rule: to get out of it, must override it by: a. Must have a written instrument, AND b. An express provision in it—qualifying it. 2. Issue: by How long do you have to survive? a. CL: Any amount of time—even one breath 1) Problems: (i.e. Policy considerations for having a survival requirement) a) More Costs: costs and distribution from A’s estate go to B’s estate probate b) Want it to go to decedent b/c want her to benefit, but if she dies one second later, how much benefite will she get?
c) Parents disagree: don’t want families litigating d) Risk of Simultaneous Death and Double Probating VS. b. Intestate: CA Survival Requirement and Modern Trend if Probate Intestate, no written instrument: 1) Clear and convincing evidence that the person survived the transferee by 120 hours (5 days) AND 2) Treat it as if the other predeceased the decedent (the party claiming they survived bears the burden, or otherwise treat them as if they predeceased). Does NOT apply to probate property or where: (1) there is a provision dealing with the issue of simultaneous death, (2) There is a provision that the one person must survive the other for a stated period in order to take the prop. (a) If the right of the bene is conditional on survival, and it cannot be determined, then he is deemed as predeceased. (b) If 2 or