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Wills and Trusts
University of California, Hastings School of Law
Zamperini, Michael A.

Zamperini Wills and Trusts Fall 2012
I.       Probate Code
A.    Goals
1.      Keep money in circulation ASAP
2.      Ease of administration
3.      Eliminate ambiguity in the wishes of the deceased
4.      Keep it in the family
B.     Case Law
1.      Estate of Feinberg
i.        Testator’s will has a “Beneficiary Restriction Clause” that limits the inheritance if any grandchild marries outside of the Jewish faith (unless the spouse converts to Judaism within one year of marriage)
ii.      There is no constitutional right to inherit money. The will is not a restriction on marriage.  The will is a restriction on receiving money.
iii.    This restriction is not against public policy because it’s not conditioned on the divorce. 
iv.    This is not an affirmative state action.
II.    Intestate Succession
A.    General
1.      Purpose:
i.        Statutory: Give effect to the probably intent of the decedent
ii.      Social Policy: Neutral policy as a basis for redistributing assets
a.       The law assumes the people nearest to you are the ones you would most want to have your stuff
2.      Importance
i.        Intestate succession is for
a.        People who fail to write a will
b.      People who execute wholly invalid wills
c.       Testator who may have executed a valid will that fails to completely dispose of all of testator’s property
d.      When wills vaguely refer to the ‘heirs’ of a particular person
ii.      Intestate succession determines who has standing to contest a will
3.      In re Wendel’s Will
i.        F: W, unmarried, childless, eccentric died leaving a will.  More than 1600 claimants challenged the will
ii.      C: Ct required claimants contending to be in the nearest degree of kinship to W to prove their claims first since once the claim of closest relative was est. none of the more distant claimants had standing to contest.
B.     Terms
1.      Escheat: where the state becomes your relative if no others are found i.e. your property goes to the state
2.      Ascendant: people related to you in a direct line going up
i.        Ex. Mother, father, grandparents
3.      Descendants: people related to you in a straight line going down
i.        Ex. Children, grand children
4.      Collateral relatives: individuals directly related to you through lineal relations
i.        Ex. Sister, aunt, cousin
5.      Collaterals of the half blood: Collaterals who only share one parent with you
6.      Curtesy: lifetime interests
7.      Per Capita by the head: distribution to everyone who exists
i.        For example, A has three children (B, C, D), all deceased.  B had 3 children (E, F, G); C had 1 child (H); D had 2 children (I, J).  A is the testator. 
ii.      Every grand child has the same proportion of A’s blood (25%).  Each grandchild gets 1/6 of A’s estate
8.      Per Stirpes: distribution by branch
i.        For example, For example, A has three children (B, C, D), all deceased.  B had 3 children (E, F, G); C had 1 child (H); D had 2 children (I, J).  A is the testator.
ii.      Each branch receives 1/3 of the estate.  B’s 3 children share 1/3; each receiving 1/9.  C’s child receives 1/3 of the estate. D’s 2 children share 1/3; each receiving 1/6.
C.     Fundamentals
1.      Share of the surviving spouse
i.        CL: the right of dower or curtesy rights in the decedent’s real property and a share in distribution of the personal property
ii.      Statutory: Generally, surviving spouse receives entire estate unless the decedent or surviving spouse has children from outside the marriage
iii.    Purpose: when testators write wills, they generally leave all or most of their estates to their spouses, unless there are children from outside the marriage
a.       The surviving spouse is likely to provide for his/her children upon the spouse’s death – won’t disadvantage decedent’s children
b.      If the surviving children are minor, significant disadvantages to distributing money to children
2.      Descendants Take to the Exclusion of Collaterals
i.        Decedent’s direct lineal descendants take to the exclusion of collateral relatives
a.       As long as a decedent has descendants, all intestate succession statutes preclude a descendant’s siblings or any more distant relatives from inheriting
3.      Distribution among collaterals
i.        Generally, descendants of decedent’s parents inherit to the exclusion of relatives who descend from the decedent’s grandparents, except for the decedent’s parents
a.       i.e. brothers and sisters inherit before cousins
ii.      Degrees of kinship
4.      California
i.        § 6401(c) Surviving spouse or DP intestate share
a.       CP
1.      SS receive ½ of the decedent’s CP in intestacy
2.      SS receives ½ of the decedent’s quasi-CP in intestacy
b.      SP
1.      SS receives all SP if X has NO issue, NO parents, NO siblings, NO issue of siblings,
2.      S receives ½ of X’s SP if:
I)       X has 1 child or issue of 1 deceased child, SS receives ½ OR
II)    X has no issue, but X’s parents, issue of parents, or issue of parents issue are alive
3.      SS receives 1/3 of X’s SP if
I)       X has >1 child OR
II)    X >1 child and the issue of  1 deceased children
III) X has issue of  2 deceased children
ii.      § 6402 Intestate estate not passing to surviving spouse of surviving domestic partner
a.       Issue of the decedent: all children are 1 degree of separation to X. They share equally (per capita)
1.      If issue of unequal degree ex. Kids and grandkids, then those of the more remote degree take in the manner provided in § 240
b.      If no surviving issue, to decedent’s parent(s) equally
c.       If no surviving issue or parent, to the issue of parents (half or full), the issue take equally if they are all of the same degree of kinship;
1.      If of unequal degree, those of the more remote degree take in the manner provided in § 240
iii.    § 240 Per Stirpes Division
a.       Look to the first generation w/ living members
b.      Each living child gets 1 share
c.       Each deceased child w/ living issue gets a share
d.      Combine the shares of the deceased children with living issue and then divide and distribute to every living individual at the next generation
D.    Modern Family
1.      Halfbloods
i.        §6406 Relatives of halfblood
a.       Halfblood relations are equal to whole blood relations EXCEPT §6451
2.      Adoption
i.        Types of adoption
a.       Spousal adoption: i.e. stepdad adopts child of natural parent so 1 adoptive parent, 1 natural parent
b.      Interfamily adoption

it a homicide
a.      §250 Person feloniously and intentionally killing decedent
1.      Person who feloniously and intentionally kills the decedent is not entitled to any property of decedent by intestate succession
2.      F+I = murder bad
3.      F + (I) = involuntary manslaughter ok
4.      (F)+(I) = ex. Vehicular manslaughter ok
b.      § 251 Joint tenants
1.      A joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes and the killer has no right to survivorship
c.       § 254 Judgment of Conviction as conclusive
1.      A final judgment of conviction of felonious and intentionally killing is conclusive
2.      In the absence of a final judgment of conviction, the ct may det. by a preponderance of the E whether the killing was felonious and intentional for purposes of this part. The burden of proof is on the party seeking to est. the killing was felonious and intentional for the purposes of this part
ii.      Predecease or fail to survive
a.      § 6403 Failure to survive
1.      a person who fails to survive the decedent by 120 hours has predeceased the decedent
iii.    Disclaimer
a.       §275 Filing disclaimer
1.      A beneficiary may disclaim any interest, in whole or in part by filing a disclaimer
b.      § 278 Disclaimer
1.      Writing
2.      Signed by disclaimant
3.      ID creator of interest
4.      Describe interest to be disclaimed
5.      State disclaimer and extent of disclaimer
c.       § 279 Effectiveness of disclaimer
1.      To be effective must be filed w/in a reasonable time after disclaimant acquires K of interest
2.      Presumption of filing w/in reasonable time if filed w/in 9 mo. Of decedent’s death or w/in 9 mo. of interest becoming indefeasibly vested, whichever occurs later
3.      Disclaimer is not effective until the decedent dies
d.      § 281 Binding effect
1.      A disclaimer when effective is irrevocable
e.       § 282 Effect of disclaimed interest
1.      Unless disposition in the event of disclaimer exists,
I)       Treat as if disclaimer had predeceased decedent
II)     A disclaimer relates back for all purposes to the date of the death of the creator of the disclaimed interest or the determinative event
f.       § 283 Disclaimer not a fraudulent transfer
1.      A disclaimer is not a fraudulent transfer
iv.    Advancements
a.       Occur when a testator advances sthg to a lineal descendent from her share of the probate state. 
1.      Generally money received during testator’s lifetime is a gift, not an advancement