WILLS AND TRUSTS OUTLINE (FULL)
1. Determine Timing of Death
A. Determine who Heirs are
2. Characterize all heirs as valid or invalid
C. Other ‘Issue’
3. Divide all property into probate and non-probate.
A. Probate = all property that goes by will or intestacy.
i. Community and Separate Property goes through probate unless a specific type
that is non-probate.
B. Non-Probate =
i. Life Insurance
ii. Payable on Death benefits (IRA / 401k etc)
iii. Interests in Trusts
iv. Joint Tenancy / Comm. Prop w/ Survivorship
4. Divide Property:
A. Will – follow instructions
B. Non-Will Property – Go through Intestacy
i. Intestacy – Tree of Consanguinity
a. Determine Surviving Spouses Share first.
i. UPC: Spouse Takes All**
ii. CA: See Rules
b. If no surviving spouse OR there are additional takers, go to tree of
c. Choose a Per Stirpes Method and Apply.
ADMINISTRATION OF PROBATE
5. Appointment of Executor (named in will) or Administrator (named by court).
A. Executor’s duties:
i. Inventory and collect decedent’s assets
ii. manage the assets dueing administration
iii. Receive and pay creditors claims
iv. clear chain of title to assets
v. Distribute remaining assets to those entitled.
a. Real Property is Devised to Devisees
b. Personal property is bequeathed to legatees.
B. Executors are required to post a bond (insurance usually) unless it is waived in the
6. Obtain Letters of Administration for domiciliary jurisdiction and ancillary administration letters
in other jurisdictions with real or titled property.
A. Authorizes the executor to act on behalf of the estate.
i. Probate will be opened in each state in which there is real property, so should
make sure the will is valid in each of the 50 states.
a. Three witnesses + a notary, in a closed room all witnessing the signing.
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B. Two Forms of Letters
i. In Solemn Form (Formal) – Notice given to all stakeholders under the will and
ii. In Common Form (Informal) – Ex Parte proceeding of the court with no notice.
But caveat challenges could be filed by stakeholders later.
iii. UPC: Any stakeholder can demand formal probate.
a. All creditors have to file claims within a specified period. Usually one
A. If you die intestate the court decides who will be the guardian. Court uses criteria
that may preclude the wishes of the natural parent.
B. Guardians are appointed by the court and are often times a lawyer the judge is
familiar with. All costs of the guardian are taken out of the estate. All actions of guardian
must be approved by the court.
C. CONSERVATORSHIP: UPC and Uniform Conservatorship Act of 1977 enact a
i. It is more flexible than guardianship.
9. When Property is not properly disposed of in a will or non-probate fashion, the state’s intestate
succession statutes govern the disposition of the property.
10.Reasons for Intestacy
A. Will not Valid
B. Will doesn’t dispose of al the property
C. Will omits certain people.
11.Determining timing of death
A. Non-Probate Property in CA and all property at CL
B. A person succeeds to the property of a decedent only if the person survives the
decedent for an instant of time.
C. If there is no sufficient evidence (clear & convincing standard in CA) of the order
of deaths (i.e. Common Disaster), the beneficiary is deemed to have predeceased the
i. Death = circulatory & respiratory functions stop, or brain stops functioning.
D. Thus neither inherits from the other and CP and SP goes to individual
i. EXCEPTION: Where there is a life insurance policy, the proceeds are distributed
as if the insured survived the beneficiary.
E. Timing of Death in CA
i. Time Required to inherit Intestate Property: must survive decedent by 120
hours (clear & convincing evidence) PC § 6403.
a. Exception: if this rule would make property escheat to the state.
12.Identifying a Surviving Spouse
A. A Spouse is Someone Who Was:
i. Formally married
ii. Putative Spouse (CA)
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a. Requirements to be Putative Spouse
i. A putative marriage occurs when one or both spouses relies on a
good faith belief he/she is validly married but such marriage is in
fact void or voidable. FC § 2251.
iii. Domestic Partners (CA)
a. Requirements to be Domestic Partners
i. Men and Women who live together under an agreement of
marriage and cohabitate will in a court of equity be treated as
married on the basis of contract law (Vallera). However not for
purposes of Family Law, such as consanguinity.
13.Pre-Deceased Spouse’s Reversionary Rights
A. In California: