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Wills and Trusts
University of California, Hastings School of Law
Schwartz, Lois W.


I. Basic Inheritance Vocabulary

A. Terminology
1. devise- a gift of real pp under a will
2. devisee- a beneficiary receiving real property under a will
3. bequest – a gift of personal property under the will
4. Legacy- a gift of personal property under the will.
B. The natural objects of One’s Bounty- Ancestors and Descendants
1. the closest surviving members of one’s family
a) Ancestors and Descendants
b) Other Lineal Relatives
C. The natural objects of one’s bounty – Collateral Relatives
1. Categories of collateral relatives
a) nephew, niece
b) uncle, aunt
c) cousin, second cousin etc.
2. Consanguinity and Affinity
a) Cosanguinity- related by blood; kin and kinship; next of kin
b) Affinity- describes persons related to one’s spouse.

II. The Power to Transmit Property at Death

A. Power to Transfer
1. A decedent has the right to dispose of his or her property at death; however the state has the power to regulate.
2. Public Policy Arguments
a) Pro: A person should have the power to transfer his or her property at death because such a policy is consistent with a system of private property; encourages and rewards a life of hard work; is consistent with and promotes family ties; encourages individuals to accumulate wealth for old age and to give to family; and encourages family members to love, serve, and protect their elders.
b) Con: A person should not have the power to transfer his or her property at death because such a policy perpetuates economic disparity and discrimination and constitutes an unearned windfall to those who happen to have wealthy relatives—and such unearned wealth creates powers and privileges that are undeserved and denies equal opportunity to all children.
3. Hodel- ?

B. Dead Hand Control- Decedent’s Condition on a Beneficiary’s Gift
1. Decedent’s conditions cannot violate public policy. The test is reasonableness.
a) Invalid Conditions
(1) Absolute restraints on marriage.
(a) Exception: partial restrain. Shapira (son would only inherit if he married a jewish girl. Court found that a partial restraint on marriage which imposes only reasonable restrictions is allowed.) A will is normally invalid if it encourages disruption of a family.
(2) Religion requirement
(3) Encourage separation or divorce. Fineman (will wanted child to divorce)
(4) Property destruction directive
2. Restatement (Third) of Property – favors freedom of disposition. Protective of donor’s intent, providing that a “donor’s intention is given effect to the maximum extent allowed by law”.

C. The Probate Process – an overview
1. Probate is the legal process during which the court oversees the distribution of the assets of the decedent. If there is a valid will, the court will attempt to distribute the assets according to the terms of that will. If there is no will, the assets are distributed according to the law of intestate succession where relatives take, if at all, according to the relation to the decedent.
a) not all pp is subject to probate. Assets held in JT, in trust, or with a beneficiary designation (such an insurance policy) are not subject to probate administration.
b) in CA estates with a value under $100 000 ordinarily are not subject to formal probate administration.
2. Default: Probate is the default. The decedent must take affirmative steps (valid will or create a valid non-probate instrument) to avoid probate.
3. Probate administration: The probate court appoints a personal representative. He has the job of collecting the decedent’s probate assets, paying off creditors’ claims, and distributing the property to those who are entitled.
4. Who takes D’s property- it depends
a) Non-probate
(1) Joint Tenancy
(2) Life insurance- Modern trend: POD Contracts
(3) Legal life estate and remainders
(4) Inter vivos trusts
b) Probate
(1) Testate (valid will)
(2) Intestate (no will)

D. Estate Planning
1. Key objectives: 1. honoring intent, 2. avoiding estate taxes, 3. avoiding probate
2. Professional Responsibility
a) Common law: No duty of care and no privity with intended beneficiaries
b) Modern Trend: Attorney owes a fiduciary duty to reasonably foreseeable intended beneficiaries, and they have standing to sue for malpractice, even though they are a third party. Simpson v. Calvas (son sues lawyer for faulty drafting, providing a life estate in the homestead instead of the home to his step-mother.)
c) Conflicts of Interest (Alternative grounds for finding duty): The testator’s attorney may owe a duty of care to third parties if the attorney has an ongoing attorney-client relationship with the third party and the third party has “special confidence” in the attorney. Hotz v. Minyard (Atty represented father and daughter. Atty showed her the first will but not the amended one.)

III. Intestate Succession – basic intestacy schemes

A. Descent and Distribution of Intestate Estate – succession by heirs occurs in two ways
1. Per capita
a) heirs take equally as individuals and not by right of representation
b) the estate is distributed in equal shares among persons related to the intestate in equal degree
2. Per stirpes (by right of representation)
a) a heir who takes per stirpes takes the share of an immediate ancestor who, in turn, takes the share of his or her next immediate ancestor and so on until a common ancestor is reached.
b) the descendants of a DC together take and divide the same share that the deceased person would h

ommunity pp (acquired during marriage either in or out of CA) or separate property (owned before marriage or acquired during marriage by gift and inheritance)
(b) CPC ss 100 and 101: upon death of a married person, one half of community property and quasi-community property belongs to the surviving spouse and the other half to the decedent. This can be altered by a proper writing signed by both spouses.
(c) CPC ss 100 and 101: the intestate share of the surviving spouse includes the one-half of the CP or QCP that belonged to the DC.
(d) CPC 6401: separate pp of DC is distributed to the surviving spouse or domestic partner and other relatives, depending on the relatives who survive as follows:
i) the entire estate of DC goes to the surviving spouse or domestic partner if the DC did not leave any surviving issue (C or GCs) parents, brothers, sisters, or issue of a deceased brother or sister (nieces or nephews)
ii) one half of the intestate estate goes to the surviving spouse or domestic partner:
(1) when the decedent leaves only one child or the issue of one deceased child
(2) when the decedent leaves no issue but leaves a parent or parents or their issue (full or half Bs and Ss of the DC) or the issue of either of them (nieces or nephews). If there are any deceased brothers or sisters, the Cs of the deceased B or S take that parent’s share, equally.
iii) One third of the intestate estate goes to the surviving spouse or domestic partner:
(1) when DC leaves more than one child
(2) when DC leaves one child and the issue of one or more deceased children
(3) when DC leaves issue of two or more deceased children.
(3) Domestic Partner
(a) to qualify as DP must file Declaration of Domestic Partnership and not revoked this prior to death
(b) DP inherits the same as the surviving spouse
(c) however, statutory CP rights are limited to married couples.
(4) Heirs of predeceased spouse
(a) CPC 6402.5: if a single person without issue had previously inherited from a predeceased spouse, what was previously inherited from that spouse goes back to the predeceased spouse’s nearest relatives.
(b) right of inheritance of nearest relatives of a predeceased spouse only occurs when