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

Estates & Trusts — Zamperini 2015

Exam Approach

Checklist for gift

Extinction (specific v. general gift)
Lapse (kin…)
Gift into trust

If trust already exists at execution, incorp by ref.(§ 6130)
If not, fact of indep signif.(§ 6131)

Checklist for will

Valid revocation
Prove will even if not valid (copy + testimony okay)
Republished by valid codicil — rescues will invalid when first executed
Revoked by codicil or will disposing of entire estate

Checklist for trust

Inter vivos or testamentary

If IV, no anti-lapse protection

Intestate Succession

Intestate succession statutes (ISS)

ISS also comes into play when decedent didn’t specify beneficiaries

If decedent left property merely to his “heirs,” heirs are determined by ISS

ISS determines who has standing to contest a will

If contestant would be entitled to partake of estate by intestate succession, he has standing to contest will
Otherwise, contestant would have standing only if he had been the beneficiary of a prior will

If decedent dies intestate, admin is determined by statute.(Statute establishes a priority of appointment)

Only those in line of preference may contest appointment of another.(Goick)

Who may contest other matters?

Person has no standing to contest matters of estate w/o personal stake in outcome.(Goick)
If decedent died intestate, only heirs per ISS have standing

Share of surviving spouse

Community prop: spouse simply gets the one-half that belonged to X.(§ 6401(a))
Separate prop:

Gets everything if X had no surviving issue, parent, brother, sister, or issue of brother or sister.(§ 6401(1))
Gets half if:(§ 6401(b))

X leaves one kid or issue of one kid
OR X leaves no issue but leaves a parent or parents or issue of either parent

Gets one-third if:(§ 6401(c))

X leaves > 1 kid
OR X leaves 1 kid and issue of 1 or more deceased kids
OR X leaves issue of two or more deceased kids

Effects of divorce

Divorce revokes gift to ex.(§ 6122)
UPC: divorce or annulment —> no longer qualify as surviving spouse
Some states: failure to support a spouse terminates right to take by intestate succession

Share of lineal descendants

Any living descendant of decedent cuts off right of descendant’s own children to inherit
Approaches when heir is dead but leaves issue:

Per capita (simply count up issue and divide by that number)
Per stirpes (“share”) distribution: share passes on to dead kid’s kids, to be split evenly

Issue of dead heir take by “right of representation” — kids stand in for dead heir

Modern per stirpes distribution (majority, Cal): same as pure per stirpes, but you start at the nearest generation where there are living issue, rather than right at the first gen below X

Normal mechanism for intestate succession is MODERN PER STIRPES (aka per capita w/ representation).(§ 240)

Start at nearest gen where issue are alive.Issue of dead issue take by right of rep.Process repeats

Alternate mechanisms may be invoked by will:

Pure per stirpes.(§ 246)

As for § 240, but start at , not nearest gen where issue are living.Issue of dead issue take by right of rep.Process repeats

Hybrid per capita (aka per capita at each generation).(§ 247)

As for § 246, but instead of issue of dead issue taking by right of rep, they take per capita: shares of dead issue are combined at this generation, then split up evenly among issue of dead issue.Process repeats

NOTE that modern per stirpes and pure per stirpes are only different in whether they skip generations where no one survives.Pure per stirpes doesn’t skip; modern per stirpes does
TODO SEE HANDOUT from 2/3/04

Share of ancestors and collateral heirs

Collaterals = blood relatives neither descendant nor ascendant
We ignore rel’ps by affinity (except suriving spouse)
Use the table of consanguinity

Look at each column closest to decedent in turn

Closer column BLOCKS distant column

Lowest degree of rel’p takes, w/ equal relations sharing.But if rels have same degree, rel in closer column takes to exclusion of other
Cal: don’t divide into maternal and paternal; no limit on right of rep

Halfbloods, adoptees, non-marital children

You’re a halfblood w/ someone if you share one common ancestor, but not both

Halfblood is a BLOOD rel’p

Halfbloods as wholebloods, but w/ adoption exceptions outlines in § 6451 (below).(§ 6406)

Modern trend is to treat halfbloods equally w/ wholebloods, regardless of actual rel’p betw decedent and halfblood

For purposes of ISS, where does parent-child rel’p exist?(§ 6450)

Rel’p betw nat kid and parent exists regardless of marital status (but adoption may sever; see below)
Rel’p betw ADOPTED kid and parent is SAME AS natural parent and child

BUT adoption severs kid’s rel’p w/ natural parent UNLESS:(§ 6451)

Natural parent and kid lived together at any time as parent and child, OR natural parent was living w/ or was married to other nat parent when kid was conceived and dies before kid’s birth
AND adoption was by spouse of natural parent OR was after the death of the natural parent
(this is mostly about death of a bio parent, and maybe other bio parent remarries)

Adopted kid may be given a “clean slate” — kid is cut off from old family, and is treated as natural issue of new family

This is so to promote stability of new family — no baggage, and no benefit, from old family

Non-marital children

Stepchild is NOT ADOPTED

Deadbeat dads: if kid is illegitimate, nat par doesn’t inherit unless par or rel recognizes kid AND par contributes to supporting kid.Same goes for those rels of parent who would inherit from kid through nat par.(§ 6452)

This is also an incentive for rels of natural parents to step in to help take care of the kid (esp for possibility that parents are dead)

Who are your natural parents? (§ 6453)

Presumption under certain circums (if kid is child of married parents, or something like that)
OR ct order establishes paternity
OR C&C evidence establishes that father has openly held out the kid as his own
OR it was impossible for dad to hold out kid as his own (he was dead or didn’t know), and paternity established by C&C evidence

For purposes of intestate succ through FOSTER OR STEPPARENT, rel’p of parent and child exists if: (§ 6454)

Rel’p began during kid’s minority and continued through join lifetimes
AND it is est’d by C&C evidence that foster parent or stepparent would have adopted

nt declared in contemporaneous writing or the heir acknowledged in writing that gift is an advancement.(§ 6409(a)(1))
OR decedent’s contemporaneous writing or heir’s written ack otherwise indicates gift is to be taken into account when distributing intestate estate.(§ 6409(a)(2))

Prop is valued at time heir came into possession or enjoyment, OR at decedent’s death, whichever is earlier.(§ 6409(b))

Unless prop is valued in a writing.(§ 6409(c))

If recip predeceases decedent, prop is not an advancement unless decedent’s contemp writing provides otherwise.(§ 6409(d))

If prop is counted as advancement, how is distribution calculated?

Total advancements are added to decedent’s net estate.Then shares are calculated.Then advancements paid to each are taken out of his share
Recip of advancement does not have to give back $ if advancement exceeds his share

Instead, we just skip recip when calculating actual share
Ex: X dies, leaving sons A, B, and C.X has $90 k estate.A had rec’d $60k advancement.Proper share for each son = $50k.So A already has rec’d more than his share.He’s left out when dividing the $90k — so B and C each get $45k
Another way to look at this is to say A got his $50k share as an advancement, plus a $10k gift

Homicide, abuse, other crimes

Person who feloniously AND intentionally kills decedent is barred from inheritance.(§ 250)

Killer is treated as having predeceased the decedent for the purposes of passing property on, appointment as executor or trustee, etc.(§ 250)
That means that issue of killer aren’t blocked by his crime
Life insurance treated same way.(§ 252)
(Note felonious AND intentional: so invol manslaughter wouldn’t count)

Killer in JT w/ decedent: by killing decedent, killer effected a severance of the JT.Killer therefore does not take through survivorship.(§ 251)
Final GUILTY crim judgment conclusive.But if no final guilty crim judgment, may show crim w/ preponderance of evidence for probate purposes.(§ 254)

Ex: you may get off in crim ct b/c of insanity.But probate ct may still prevent you from taking.(Ford)

This stuff has no effect on rights of those who purchased prop from killer w/o notice.Killer is liable to them.(§ 255).
Other crimes:

Person is treated as having predeceased decedent if:(§ 259)

(this is for heir who abuses dependent elder)
He is liable for physical abuse, neglect, or fiduc abuse of decedent who was elder or dependent adult
AND He acted in bad faith
AND he was reckless, oppressive, fraudulent, or malicious in committing these acts
AND decedent, at time acts occurred and then continuing till his death, was unable to manage his financial resources or to resist fraud