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Wills, Trusts, and Estates
San Joaquin College of Law
Farmer, Matthew E.

WILLS AND TRUST- 1ST SEMESTER (FARMER)

Issue 1: Is the property subject to intestacy?

**** The rules of intestacy are default rules, and only apply where the decedent has not effectively provided instruction as to what is to happen to their property after death.

**** At common law, property not properly disposed of through a will went to the state or government. California however has enacted strict statutes that give direction as to what happens to the property of a decedent who dies intestate.

**** Public policy behind California’s strict intestacy statutes is to compel individuals to get their affairs in order before their passing, and not rely upon intestacy.

**** Property can be subject to intestacy laws even when there is a will, if the will is not valid, or if the will fails to dispose of all property. The latter is called partial intestacy.

**** Name someone as beneficiary on retirement accounts. This supersedes the will and does not pass intestate, but in terms of the contract. i.e. 401k or life insurance where there is a named beneficiary.

**** Joint Tenants: At the time of death of first person, the property is transferred to the survivor.

**** If you prepare a will, there is the assumption that you gave thought to survivorship issues.

DETERMINE:

**** Is there a will?

(1) Yes.

(a) Is the will valid (analyze)?

(i) If notà analyze intestate succession.

(ii) If will is valid, determine whether it disposes of all property.

**** Estate of Swallow: an intestacy can be full or partial. A clause disinheriting a person does not prevent him from taking property not disposed of by will through the laws of intestacy.

(A) If it does notà analyze intestate succession.

(B) If yes, likely done.

(2) If no willà analyze intestate succession.

**** §6400 – Property not transferred by will is subject to transfer by intestate succession.

A. INTESTATE SUCCESSION

**** WHO TAKES? California’s probate code controls what heirs take under intestacy laws.

**** FIRST, DECIDE WHAT THE SURIVIVING SPOUSE TAKES, THEN DISTRIBUTE THE REMAINDER; WHAT THE SS TAKES DEPENDS ON WHAT OTHER RELATIVES EXIST

1. Is there a surviving spouse?

**** If yes: §6401 – Division of intestate property

(a) COMMUNITY PROPERTY: SS takes 100% of community property – CA REQUIRES FORMAL MARRIAGE (not domestic partners/common law)

(c) SEPARATE PROPERTY (property spouse inherits, is gifted during marriage, or brings into the marriage): REGISTERED DOMESTIC PARTNERS OK

**** SS is entitled to 100%, ½ or 1/3 of separate property, depending on the number surviving issues/bloodline.

(i) SS takes 100% if NO surviving bloodline: no issue AND no parent, sibling or their issue

(ii) SS takes 1/2 if one bloodline: [child or their issue] or [no issue but parent or their issue]

(iii) SS takes 1/3 if two surviving bloodlines: [>1 child] or [child and issue of deceased child] or [issue of 2 deceased children]

**** If no surviving spouse: All goes to surviving issues to be divided pursuant to §6402 and §240 (below).

2. §6402 – Division of intestate property NOT taken by SS (entire if no SS; 1/2 or 2/3 of the separate property is SS)

(a) D’s issue take equally, or per §240 if unequal degree of kinship (i.e, children and grandchildren);

(b) if no issue, to parent(s);

(c) if no parents, to issue of parents(s)

**** §240 Representation – split evenly at nearest generation w/ issue living; issue of those deceased-at-that-generation divide the ancestor’s share.

3. Who is a “surviving spouse”? (§78)

* If marriage is dissolved by divorce, annulment, or otherwise never valid (unlawful) the formal spouse loses title.

* Requires a final judgment for annulment or divorce to be proper. (Holmes v. Fentress—“to my dear friend” case, divorce dismissed)

* CA- No common law marriage, but other doctrines come into play.

(a) Putative spouse doctrine:

(i) requires cohabitation; and

(ii) good faith belief that they were married (that marriage was valid—on part of claimant)

**** Treated as spouse for intestacy.

**** Can have more than one putative spouse(apportion property).

(b) Marvin Marriage:

**** takes from estate (before split)

(i) stable and significant relationship arising out of cohabitation;

(ii) based on a contract (i.e. that would share effo

limits application of the judicial doctrine of equitable adoption for the benefit of the child or the child’s issue.

(d) ASSISTED REPRODUCTION

* Child of assisted reproduction can take if all of the following are met:

(i) Decedent specifies in writing that genetic material to be used for posthumous conception of his/her child;

(ii) Person in control of genetic material notifies executor in writing (return receipt) of fact that genetic material was available posthumous for conception. Notice must be within 4 months of certificate of death.

(iii) Child in utero within two years of death.

5. §6403 REQUIREMENT OF SURVIVAL [LIMITED TO INTESTATE]

* Each heir must survive D by 120 hours (5 days) to take through intestate succession

6. §6407 RELATIVES IN GESTATION [LIMITED TO INTESTATE]

* The unborn must survive D by 120 hours (5 days)–which includes in utero–to take a share, but must be born alive.

7. §220 SIMULTANEOUS DEATH [NOT LIMITED TO INTESTATE]

* In California, an individual is dead when he or she has sustained either (1) irreversible cessation of circulation and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem

* If survivorship is undeterminable (not proven by clear and convincing evidence), it is presumed, and the property of each will be distributed among that person’s heirs–whether intestate or by wills (as if they had survived the other—i.e, think of case where couple dies, husband leaves insurance policy benefit to wife, or to mother as contingent beneficiary. If statute applied, benefit would go to mother because wife deemed not to have survived husband.)

* Same would occur to wife’s property.

* A couple’s wills may conflict