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Wills and Trusts
Thomas Jefferson School of Law
Martindill, Michael John





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

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

· Testator/testatrix – creators of will / codicil

· Gifts – donations of real / personal property or cash

· Intestate – dying without a will

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

· Beneficiary – those persons named in will to inherit

· Issue – lineal descendents of decedent

Intestacy Distribution – 6400

General rule: Any part of the estate of decedent not effectively disposed of by will passes to the decedent’s heirs.

Intestacy Framework

1. Marital status at time of deceit?

a. A divorcee cannot obtain property through the use of intestacy rules

2. Does the decedent have a surviving spouse?

a. If so, intestacy rules apply. If not, person may obtain estate through will or trust

b. Surviving spouse – spouse under lawful heterosexual / same sex / domestic partnership

i. For transgendered individuals, biology is considered and determined from the date of birth

ii. If a state has a cooling-off period (in CA 7 days), an individual is not a surviving spouse for probate purposes. Cooling-off period transpires when:

1. Filed dissolution proceedings

2. Signed agreement to divide property

3. Each spouse waived spousal support (alimony), and

4. Waived right to appeal during settlement agreements

3. What is the characterization of property (community or separate)?

a. Community property – assets acquired during marriage as a result of the earnings of the spouses divided upon death

i. Quasi-community property – property that would have been community had it been acquired in California but it was not

ii. Rule: If community or quasi-community property, surviving spouse maintains their own ½ interest and receives the ½ interest in the decedent’s community property.

iii. Note – if decedent dies without a surviving spouse or RDP then there is no CP, only separate property

b. Separate property – property received prior to marriage and received during marriage by gift or inheritance – 6401(c)(1)(2)(3)

i. Surviving spouse or RDP will get

1. Entire estate to surviving spouse or RDP if:

i. No children or issue

ii. No parents

iii. No issue of parents

2. 1/2 to spouse or domestic partner, 1/2 to:

i. One child or issue, if none to,

ii. Parents or issue of parents

3. 1/3 to spouse of domestic partner, 2/3 to:

i. Two or more children or their issue

ii. Separate property – no surviving spouse or RDP

1. All to children or issue

iii. Separate property (SISIOSIE) – no surviving spouse, no RDP, no children or issue; all to

1. Surviving parent(s)

2. Issue of parent(s)

3. Surviving grandparent(s)

4. Issue of grandparent(s)

5. Issue of predeceased spouse

6. Other surviving relatives of decedent

7. Surviving parents of predeceased spouse

8. Issue of parents or predeceased spouse

9. Escheat – reversion of property to estate, government, or tribe

Exceptions to general intestacy rules

1. Exception (Look [MSOffice1] Back Rule) – if no spouse or issue

i. Real property inherited from predeceased spouse within 15 years

ii. Personal property titled (e.g., bank accounts or stocks) and aggregate value of $10,000 or more within 5 years

2. Failure to Survive – 6403(a)

a. Rule: A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession and the heirs are determined accordingly.

b. The issue of survivorship must be based on clear and convincing evidence. In Janas case, court found that expert testimony claiming wife had brain activity after husband had flat-lined was enough to show she survived husband.

c. If both spouses die simultaneously then each estate gets 1/2 interest

Determining Parent / Child Relationship

1. Natural born – 6450 – A relationship between a parent and child exists for the purpose of determining intestate succession by, through, or from a person when:

a. Rule: A parent child relationship exists between

i. A person and their natural parents, regardless of the martial status of the natural parents; and

ii. Between an adopted person and the person’s adopting parent(s)

b. Legitimacy presumptioin

i. If a child is born to a married couple, then husband is presumed to be father (only applicable to heterosexual couples)

ii. In FL, presumption is conclusive

iii. In CA, clear and convincing evidence must overcome presumption (e.g., DNA test is ordered to determine parental relationship)

c. Establishing intestacy posthumously

i. If a child is born out of wedlock, he/she may establish intestacy after his/her parents’ death.

ii. If circumstances warrant, court could require child to produce evidence that arose to level of clear and convincing to determine paternity

2. Legally adopted [MSOffice2] – 6451(c)

a. Rule: A prior adoptive parent and child relationship is treated as a natural parent and child relationship in the following circumstances:

i. Natural parent or parents give up child for adoption, or

ii. Courts take child away from natural parents, terminate parental rights and put child up for adoption, or

iii. In some cases, father and mother of new husband and wife want to adopt his/her child and the child then becomes the issue of both parents

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

a. After a legal adoption, the child is no longer issue of natural father but the inheritance rights shift from natural parent to adoptive parent. An adoption is a clean severance from the natural bloodline and the rights of the natural relatives terminate.

b. Step-parent adoption exception in California

i. Courts will not sever the inheritance rights of a predeceased minor child and the child may inherit from and through their natural parents if

1. Child is a minor,

2. One of the natural parents die

3. Surviving parent remarries, AND

4. New spouse adopts child

ii. Child cannot double up on inheritance if step-parent is genetically related. Rather, court must choose which parent will provide child with the largest share of estate

c. No step-parent adoption exception when consent

i. If second marriage results in a

state and

1. Who are the child’s parents born through surrogacy, and

2. What was the contract related through surrogacy and the parents’ / surrogate’s intention at the time of contract?

ii. The intentions of parent of the child is the person who entered into an agreement with surrogate stating that the person would be the parent of the child, and that person has a parent-child relationship w/ child if they acted as parent within 2 years of child’s birth

Effect of Homicide / Elder Abuse – 250, 259(a)

1. Personal intentionally and feloniously killing decedent: 250 Rule:

a. A person who feloniously and intentionally kills the decedent is not entitled to any of the following:

i. Any property, interest, or benefit under a will of the decedent, or trust created by or for the benefit of decedent

ii. Any property (community, quasi, separate) by intestate or otherwise

b. In criminal court, conviction must be proved beyond a reasonable doubt

c. In civil court, conviction must be proved by preponderance of the evidence (more than 51%)

d. Note that could get conviction in criminal court under PC 250, then take conviction to probate court where guilty verdict would be conclusive

2. Physical / Financial Abuse or Neglect of Elder: 259(a) Rule:

a. Any person shall be deemed to have predeceased a decedent where all of the following apply:

i. Proven by clear and convincing evidence that the person is liable for physical abuse, neglect or fiduciary abuse of the decedent, who was an elder or dependent adult,

ii. Person is found to have acted in bad faith,

iii. Person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts, AND

iv. Decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence

[MSOffice1]Only applies to intestacy. If someone dies intestate, unmarried, and have no issue. If decedent inherited real property from deceased spouse who died w/in 15 yrs from death, will apply rule. Distribute it then from deceased spouse’s intestacy.

If remarried or adopts child or writes a will, then cancel this rule.

[MSOffice2]GR is you may only inherit through two parents. If a full legal adoption, then step child is adopted child who can inherit from original mom and adopted dad, no longer from adopted out dad. Exception – mom remarried after death of new husband, and child adopted by step dad as a minor, allowing child to inherit from three parents.