Wills and Trusts Outline

WILLS and TRUSTS COURSE OUTLINE

Thomas Jefferson School of Law

Spring 2012, Monday and Wednesday 8 – 9:15 p.m.

Section 171.2

Professor Martindill

Professor Michael Martindill, Esq.

Certified Specialist in Estate Planning,

Trust and Probate Law by the State Bar

of California, Board of Legal Specialization.

Office: (619) 473-0457 Fax: (619) 473-0467

E-Mail: Attycowboy@att.net

Definitions

· Will or testament – lawful document providing voluntary disposition of assets upon death

· Codicil – written supplement to a will / amendment to will and codicil supersedes will to the extent there is inconsistency between them

· Testator/testatrix (Transferor) – one who makes a will / codicil

· Devise – gift of real property

· Bequest – gift of personal property

· Legacy – gift of money

· Intestate – dying without a will

· Heir/Heir-at-law – those persons designated by statute as being next in line to inherit

· Beneficiary (Transferee) – those persons named in will to inherit

· Issue – lineal descendants of decedent

· Probate, Surrogate, Orphan’s Court (CA = Probate Court) – Courts having jurisdiction to hear matters arising from decedent’s estates or trusts

· Testate – Decedent dies leaving a valid Will which directs disposition of estate

· Intestate – Decedent dies without a Will and estate is distributed according to state law

CLASS 1 – INTESTACY – What you left behind. Who you left behind.

A. In General – PC 6400. (All PC references are to California Probate Code.)

Analysis steps? Was decedent married? Lawfully? Was there a will?

B. Community and Quasi-Community Property (CA = CP state)

All to Surviving Spouse. [unless he left it to someone else in his will]

Did he have separate property? Property had prior to marriage, inheritance, gift during marriage..stays separate property. Those would then be distributed according to Intestacy rules.

[In re: Gardiner Estate all note cases will be discussed by Professor]

CA AB 433-Petition for Recognition of Change of Gender

[McDaniel note case]

C. Separate Property – Surviving Spouse or Registered Domestic Partner (RDP)

PC 6401 (C)(1)(2)(3)

1. 1/2 to spouse or Domestic Partner, 1/2 to:

a. One child or issue, if none to,

b. Parents or issue of parents (aka. Siblings) – only if no kids; Example: husband dies, his parents have died, and his sister, but sister had kids…1/2 goes to them.

2. 1/3 to spouse of Domestic Partner; 2/3 to:

a. Two or more children or their issue.

Example: 2 kids, 1 deceased child but he had 3 kids = full share to surviving children and the full share to the deceased child is split between his children = “to issue by right of representation”…means they get their parent’s share, equally divided amongst them.

3. All to surviving spouse or Domestic Partner if:

a. No children or issue.

b. No parents.

c. No issue of parents.

D. Separate Property – No Surviving Spouse or RDP

1. All to children or issue, by right of representation.

E. Separate Property – No Surviving Spouse , No RDP, No Children or Issue; all to:

1. Surviving parent(s).

2. Issue of parents (siblings).

3. Surviving grandparents.

4. Issue of grandparents (aunts/uncles/cousins).

5. Issue of predeceased spouse.

6. Other surviving relatives of decedent (great grandparents, etc.).

7. Surviving parents of predeceased spouse.

8. Issue of parents of predeceased spouse.

9. Escheat.

[Shellenbarger-note case] – 2008 CA – decedent dies, no spouse, no children, parents still alive. Surviving father had left mother when she was pregnant with the guy who died. He had never met his father. Father also paid $0 child support. Surviving Mother brings action to disinherit Father on principles of equity. Why should he get anything? Case of first impression. Court said NO. There is no concept of disinheritance in equity. You are either a surviving parent or not.

F. Table of Consanguinity P.93 of Text

CLASS 2 Intestacy-Continued.

A. Exception – (Look-Back Rule – CA only) – if no Spouse or Issue & no will. Was married but the spouse died 5 years earlier. He had inherited her property when she died.

1. Real Property inherited from predeceased spouse within 15 years that was predeceased’s Separate Property.

2. Personal Property titled (stocks, bank accounts) and 10K or more within five years. [That asset gets pulled out of his intestate distribution & goes to wife’s intestate distributions. Asset must still be part of his estate…if he spent it, etc. it doesn’t exist anymore & this does not apply.]

B. Failure to Survive – PC 6403 (a) – To be an “heir at law,” you must survive the decedent.

Janas v. Tarasewicz, p. 80 (All Ap.@ references are to the textbook cases to be briefed by the students.) Husband and wife unknowingly took Tylenol laced with cyanide. Husband had no vital signs, pronounced on September 29th. Wife’s heart was restarted, but she died on October 1st. Husband’s life insurance was paid out to wife’s parents. Husband’s parents brought the action. Issue: did she survive her husband? She had vital signs longer. So, she gets the 100k even though she never got to spend it. [irreversible cessation of circulatory and respiratory systems or brain] CA – Default survivorship = 120 hours. {levels of proof = prima facie, preponderance, clear & convincing, beyond a reasonable doubt} CA standard for survivorship = clear & convincing evidence. [Testator or Trustor can set a longer/shorter period for survivorship.]

C. Parent/Child Relationship – PC 6450

1. Natural Born – Mom/Biological Dad. [historically, illegitimate children had no inheritance rights. CA says legitimacy has no relationship to inheritance.] Sperm donor does not count as parent. Chambers Note Case – decedent dies intestate. Alleged child claimed to be child of decedent. Birth certificate listed the Mother’s husband (presumption). Trial court held for child. Appeals sent it back – so the court would require “clear and convincing evidence” rather than “preponderance of the evidence” for intestacy.

2. Presumptive Parentage – when a child is born under particular circumstances where it is presumed they are the child of a certain parent…Probate Code adopts the Family Code for this issue. Conclusive presumption = if a child is born to a married woman, it is presumed that is a child of the marriage. The other presumptions are rebuttable. Scott Note Case – decedent died in car accident. Half-sister filed a wrongful death suit. Usually only closest heir (in intestacy) has standing to bring wrongful death action. And someone else steps in & says he is the father & has the right to bring the action. Sister demanded a blood test – and he was not the biological father. He sued for status as a presumed father under the Family Code since he held the child out to be his own and the child lived with him at times. Does Presumed Parentage give greater rights than sibling?? Yes.

3. Legally Adopted – PC 6451(c)

a. Inheritance rights to and from natural parents – after adoption.

Hall v. Vallandingham, p. 97 – Birth uncle dies after kids’ biological father dies & they had been adopted by their stepdad. Once a child is adopted, the rights of both the natural parents and relatives are terminated.

b. Stepparent Exception – CA has adopted this exception = if after the death of one parent, the kids can inherit from family of dead parent. (So can inherit from both natural parents and step parent.)

c. Adult adoptions

Duke p. 107-108 – Old rich lady, Duke, adopts, Chandi. (hare Krishna from dance class) Rule = adoption, unlike marriage, is not revocable.

4. Equitably Adopted – PC 6454. – Required factors:

(a) Relationship begins at Minority.

(b) Relationship continues throughout lifetime of first to die

(b) Legal barrier prevented legal adoption from occurring (ex. Biological parent refused to consent)

O’Neal v. Wilkes, p 109. – Child’s Mother died when she was 8. O’Neal was passed around, and lived with Roswell Cook. Court found the Aunt who passed her to others did not have legal authority to enter contract for adoption. Lame. Dissenting opinion cites the concept of Equitable Adoption.

Equitable child is not heir of equitable grandparent or equitable sibs

[Furia-note case] = Table of consanguinity does not apply in equitable adoption cases. Only parent-child.

Clear and