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Wills and Trusts
Thomas Jefferson School of Law
Wenger, Kaimipono David

Wills
 
Probate property: property that is transferred through a will or through intestacy.
Intestacy: Definition: the condition of having died without a valid will.
 
CA Probate Code § 6400:
ANY part of decedent’s estate not disposed of by will passes to heirs as prescribed here.
Analysis:
1)      What type of property?
2)      How is that type treated?
Types of property:
Community: Assets acquired during marriage from earnings or salary.
Quasi-community: Property accumulated while married, in a non-community property state
Separate: inheritances, specific gifts, and property and profits clearly traceable to property owned before marriage
CA Probate Code § 100:
How community property is treated: ½ belongs to surviving spouse, other half to decedent.
CA Probate Code § 101: Quasi-Community ppty
How community property is treated: ½ belongs to surviving spouse, other half to decedent
CA Probate Code § 6401: Spousal intestacy
a)      Community property: intestate share of surviving spouse is the half that belongs to decedent.
b)      Quasi-community property: same as above.
NOTE: To community and quasi property, apply § 100 then § 6401 (§ 101 and § 6401 for quasi). Spouse will end up with 100%
c)      Separate property:
a.       Entire estate if no other heirs
b.      1/2 the estate if one child
c.       1/3 of estate if more than one child or issue
 
CA Probate Code § 6402: (seven headed monster)
What doesn’t go to predeceased spouse stuff (§ 6402.5) or to surviving spouse goes as follows:
1)      children
2)      parents
3)      siblings and their issue (brothers, sisters, nieces, nephews)
4)      grandparents and their issue (aunts, uncles, cousins)
5)      former step-children and their issue
6)      next of kin
7)      former in-laws and their issue
8)      escheat (§ 6404)
Note: all or nothing, goes entirely to the first applicable person
 
Ppty Distribution
 
CA Probate Code § 240:
Distribution among members of a class in common law:
1) per capita (equally divided among living claimants) and
2) per stirpes (by the roots- kids will split their deceased parent’s share)
240: CA is modified per stirpes: look for the first generation with living issue, then go per stirpes down.
 
CA Probate Code § 102: return of property
Transfers will be returned to estate if they were gifts. If ppty transferred to non-owner; can be restored back to owner
CA Probate Code § 103: Simultaneous Death/community ppty
If no clear and convincing evidence that one spouse outlived the other, each half of the community property will be distributed as if the other one was still alive
CA Probate Code

rents and from their natural collateral or lineal relatives. Legislature probably wasn’t thinking about this kind of adoption – was thinking of adoption where kids are given up by their natural parents. 
Under the 1990 UPC, the kids would have been able to inherit from the uncle
 
Adult adoption:
Note: Adult adoption allowed in CA, but not your spouse, or someone older than adopter: 2 per yr
 
Minary v. Citizens Bank
Wife left trust to three sons. In her will, she left trust to her “heirs”. Son adopted wife so that the wife would be an “heir”. 
To get around this problem, the drafting lawyer should have named the children or stated that the issue of the children would be the beneficiaries.
Court held that the intent of the decedent was for “heir” to mean generational heir, and not adopted spouse heir. Court chose to disregard the strict meaning of the state statute
 
Adult adoption as a marriage substitute?
controversial b/c of seame –sex couples have used it to create pseudo-marriage; they sue it in states where same-sex amraige is not allowed.