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1.        Decedent married at time of death- spouse get all community property and quasi-community property- can get all separate property (no descendants and no first line collateral (parents, siblings, nephews, nieces)), ½ separate property (either 1 descendant or first line collateral), or 1/3 separate property (2 or more bloodlines of descendants)- any remaining property go as if were unmarried

2.        Descendants- children and grandchildren- per capita w/ representation

3.        Parents- split equally or get all if only one left

4.        Descendants of parents- siblings and their descendants- per capita w/ representation

5.        Grandparents- split equally

6.        Descendants of grandparents- aunts, uncles, cousins- per capita w/ representation

7.        Former stepchildren and their descendants

8.        Next of kin- descendants of great grandparents or great grandparents if alive- parentellic preference distribution

9.        Deceased spouse’s parents and descendants

10.     Escheat to state



·         What happen to person when die?- historically  1st to pick upàbury with possessionsà rules developed as to who get what (intestate succession or descent and distributionà wills (privilege and not a right that granted by state legislature)

·         Need comply exactly w/ will requirements (most states)

·         Probate avoidance techniques (non-probate property)- pass property but not govern by will or intestate statute- go along with other device, e.g. life insurance policy

·        Trust- non-probate technique


Intestate Succession- §6400

·         Intestate as to person- die w/o will

·         Intestate as to property- die w/ will but not dispose of all property, will should always have residual clause (so that totally testate and not partially intestate)

·         Pass under state law of intestacyà heirs- different methods of doing based on belief at time- closer relationship, more get- not look at any evidence of how would want distributed

·        At CL different system for dealing w/ real and personal property- Middle Ages focus on real property and church handle personal property- some states different distribution for real and personal property- modern law no distinction



·         Descent- succession to real property

·         Distribution- succession to personal property

·         Heir- who property go to when die- §44 take through intestacy- not for wills- old law real propertyà heirs/ personal propertyà next of kin

·         Collateral relatives- not in direct line- brother/sister/ aunt/ uncle/ cousins/ etc.

·         Consanguinity- relationship by blood

·        Affinity- relationship by marriage (in-laws)


Surviving Spouse

·         At CL, spouse not an heir- only blood relatives- CA §44 included w/in definition if heir- protected in other ways and depend on type of property and sex of surviving spouse

·         Real property- dower- rights to widow to get life estate in 1/3 of husband’s property- any real property owned during marriage and not have to own at time of death- curtesy- right to widower to all of real property for life estate- only if had children during marriage

·         Personal property- as soon as marry own all wife’s personal property- wife not own personal property until husband die (own only portion)

·         §6401 shares to surviving spouseàheir- (if not mention in will, situation in which still get portion)- look at all property and categorize before distribute- community property/ quasi-community property/ separate property- 2 jurisdictions (CL majority marital property or community property marital property(CA))- CL each spouse own property/ community property- marriage create partnership- what earn during marriage split equally (8-9 states, but @25% of US property)- CP rules different among states

·         Community Property- §28/ family code §760- property acquired during marriage while domiciled in CA- §100/ §6401(a) surviving spouse inherit deceased spouse’s ½ (own entire CP)

·         Quasi-Community Property- §66- property acquired during marriage that would have been CP if had been living in CA- §101/§6401(b) surviving spouse inherit deceased spouse’s ½ (own entire QCP)- not mess w/ real property located in another state (situs govern real property)

·         Right of Restoration- fraudulent conveyance similar- §102 dead spouse domiciled in CA not receive consideration of substantial value for transfer- living spouse not consent in writing and dead spouse still have benefit of property- survivorship rights/ live on/ get $ from/ etc.- forced to return ½ to deceased spouse estate- ½ of the QCP already own of surviving spouse

·         Separate Property- §770 family code- property own prior to marriage or acquired during marriage gratuitously- profits and income from separate property separate also- §6401(c) depend on deceased spouse’s family condition- ALL §6401(c)(1) no surviving issue/ lineal descendants and no parents or siblings or their issue- HALF §6401(c)(2)(A) 1 surviving child or 1 issue of dead child/ (B) surviving parent or sibling, niece, nephew- ONE-THIRD §6401(c)(3) more than 1 descendant bloodline- (A) more than 1 surviving child/ (B) 1 child and issue of one or more dead child/ (C) issue of two or more dead children

·         §140-§147 Waiver of inheritance rights (apply to other rights as well as other protected rights)- done before or after marriage- §142(a) in writing and signed by surviving spouse- enforceable under §143 or §144- §142(c) all k defenses except lack of consideration

·         §143 Enforceable unless (1) insufficient disclosure to living spouse of dead spouse’s property or (2) living spouse not represented by independent attorney

·         §144 might still be enforceable even though not meet §143- court determine fair/ reasonable disposition or knew/ should have known what owned

·        §146-§147 changes to waiver



·         no surviving spouse then take all or if surviving spouses then get what left

·         younger generation descendants not take if older generation descendants alive

·         all children (1st generation descendants) alive, each take equal share

·         multi-generation inheritance problem- child die and have descendants- 3 approaches

·         per stirpes- shares by children (by right of representation) divide share of older generation that would have received- divide by 1st generation children look at bloodline

·         per capita w/ representation- if older generation die, then split by per capita otherwise per stirpes- divide into shares at 1st generation w/ survivors- majority

·        per capita at each generation- split at 1st generation and for dead children shares pooled and split between living descendants


Posthumous Heir

·         heir that conceive while alive but born after death- CA count like born at time §6407


Adopted Individuals

·         Inheritance rights of adopted child/ descendants- §6450 inherit like biological child (inherit from)(inherit through)(like reborn in family tree and inherit same as biological child) from Adoptive Parents

·         Not adopt by or through Biological Parents- §6451(a)- many states that allow full rights also- Exceptions: adoption by stepparent; live together as parent or child at one time or could not do b/c dead or adoption after death of biological parent

·         Example 1: never live w/ biological parents and adoptedà not inherit

·         Example 2: live together as family, dad die, mother give up for adoptionà child can inherit from mother and through father

·         Example 3: live together as family, mom pregnant but dad die, after born give up for adoptionà can inherit from mother and through father (not live together b/c death)

·         Inheritance by natural/ adoptive parents

·         Adoptive parent and kin- inherit from and through adopted child

·         §6451(b) biological parents- get nothing generally, except for full blood sibling and descendants if adopted child could have inherited from biological parents or adopted by spouse of biological parent or spouse of dead biological parent

·         Different types of adoption

·         Regular (statutory)

·        Adoption by estoppel (equitable adoption)- §6455- not codify- like common law marriage- agreement to adopt that never performed- recognize and allow to inherit from but not work the other way (REMEDY)- Inheritance cases


Non-marital Children

·         Trimble v. Gordon- treat as same w/ regard to inheritance as marital children- discrimination violate equal protection- 1 year later reversed self- Lalli v. Lalli- permissible to discriminate against children born out of wedlockà need strong social purpose for father inherit but not mother- make harder to inherit- more efficient distribution of estate and not able to rebut b/c dead

·         Some states have gotten rid of and others retain- CA rules apply to all but little different for non-marital children- §6450(a) appear non-discriminatory- §6453 define natural parent family law provision- Uniform Parentage Act- CA- family code §7600 distinction in ability to inherit from mother/ father- mother show give birth to child family §7610- father one way of show paternity (list), i.e. born during marriage or w/in 300 days of marriage (assume that resolve child support while father alive)- when die how determine paternity- special provision §6453(b)(2-3) openly held child out as own or clear and convincing evidence (blood test/ DNA) if impossible to hold out as own child- easy to inherit from mother but harder for father

·        Non-marital parent inherit from child- §6452- NO, biological parent not inherit- have to show right to inherit- acknowledge child and contribute support or care for child


Children from Alternative Reproductive Techniques

·        Who Parents?- no legislation- artificial insemination- family code §7613- mother is birth mother/ father is not sperm donor who gave to licensed doctor, if not give to licensed doctor then donor is father- Mother’s husband is the father, if done under supervision of licensed doctor and husband consent to in writing and signed by both

·        Johnson v. Calvert- CA S.Ct. both husband and wife give genetic material to surrogate mother- mother is woman who intended to procreate child that intend to raise as own (look to intent) genetic not birth mother was mother/ In re marriage Moschetta surrogate mother genetic material and father sperm, mother is surrogate mother as no split (only way to lose is through adoption)/ In re marriage of Bizzonca neither supply genetic material- husband and wife parent not genetic material donors or surrogate mother

·        Need conception before decedent’s death §6407


Stepchildren/ Foster Children

·         Step-child child of spouse/ Foster child neither genetic parent but placed in home by government agency- not fit into scheme in most states- CA able to inherit if have deemed as child §6454, start relationship as minor and would have adopted (clear and convincing evidence) but for legal barrier (child inherit only)- §6402(e) on list/ §6455 equitable adoption


Half-Blooded Collateral Heirs

·         Relationship where only share one relative in common- irrelevantà No difference in treatment b/c half-blood §6406/ §6451(b) treat different when adoption

·         Other states Scottish rule- get ½ share/ others nothing if whole blooded relatives


Non US Citizen

·         §6411 no difference but during times of war cut off right of Alien (enemy state)


Unworthy Heir Engage in bad conduct

·         Forfeiture- CL- serious crime convictionà lose all property (now limited)

·         Civil Death- property go to heir if serious crime (not now), some rights taken away

·         Corruption of the Blood- in jail, not able to inherit penal code §2601(a)

·         Murder- §250(a)(2) not able collect- not say where go then when intestate succession- go like predeceased or treat like die w/o descendant- under will go like predeceased/ if acquitted, look at preponderance of evidence not able to inherit

·         Voluntary/ Involuntary Manslaughter- statute not talk about- not want cover up but not want deprive of inheritance

·         Suicide- CL if commit suicide, heirs not collect- Modern law make no difference

·         Fail to Support and Acknowledge Out of Wedlock Child

·         Abuse of Elder or Dependant Adult- §259(a)(1)/ (2) bad faith/ (3) bad act/ (4) intestate not recover

·         Adultery- not make difference in CA


Ancestral Property

·         No close relative- CL- what get from one side go back to side- keep in bloodline- now treat decedent as original purchaser and not matter where property came from- CA spousal property- predeceased spouse go to predeceased spouse side of family §6402.5 if no surviving spouse of descendant)- real property (only apply if w/in 15 years had died), personal property (only apply if w/in 5 years and worth at least $10k (aggregate))- property traceable to predeceased spouse (f) proceeds 1) descendant of predeceased spouse; 2) parents of predeceased spouse; 3) descendant of parents of predeceased spouse; 4) next of kin of decedent; 5) next of kin of predeceased spouse (spousal property held by decedent and still there (not spent))



·         Prepayment of inheritance while heir apparent still alive

·         Irrevocable gift and advance of intestate share

·         Anticipatory advancement of inheritance share

·         Go into hotchpot (add into estate before do distribution- intend as prepayment) and therefore get smaller share during inheritance

·         At CL, presume advancement from gift- prove any way want

·         Now, presume not advancement from gift, need prove that advancement- most states inter vivos gift §6409

·         CA need writing, contemporaneous writing of decedent or to be deducted from share- not need change nature of transfer later to make advancement- writing by heir at any time (admission against interest)- §6409(b) increased value not matter, because as of date of advancement value- §6409(c) written value stated in writing- when get larger share as advancement, (not get any more) and others split, if advancee die first, then advance ignored- §6409(d)- not matter if nondescendant address (not use descendant or issue)

·         If partially intestate take into account advancement §6409(a)



·         At CL, split second survival long enough

·         CA need outlive by 120 hours- go along w/ intent that want benefit- “fatal disaster”- §6403 common statutory period

·         Not able to tell, need clear and convincing or treat as predeceased

·         Exception if property escheat to state (survival statute)

·         Distribute as if person not die after period, treat as predecease



·         Not force to be heir/ donee- i.e. onerous burden/ back taxes/ personal reasons/ avoid creditors- if disclaim never own- some states not able to disclaim to avoid creditors/ §281, 283 allow to disclaim/ avoid taxes (gift taxes)- apply to intestacy, will, life insurance, etc.

·         Requirements/ Rules: §§260-295

·         In writing §278

·         Signed by disclaimant (heir) §278

·         Identify intestate (person who property disclaim) §278

·         Describe interest/ property disclaim §278

·         Express act of disclaim (what doing) and extent thereof §278

·         Timely filed §279 w/in reasonable time after heir knows of, 9 months of intestate death, presume reasonable time

·         Proper place to file §280- Superior Court of County where estate administer or w/ personal representative (administrator) or person w/ custody/ possession/ title to property

·         Irrevocable §281/ pick and choose what disclaim/ accept property, then estopped from disclaim §285 even if 9 month period

·         If disclaim, where go?- §282 like predecease intestate but no choice on where property goes, see §282(b)(1)


Assignment/ Release of Expectancy

·         Not able to transfer expectancy but can form k to transfer- not convey expectancy, but can k to do- not able to inherit under will or are beneficiary under will- okay in CA (contract to do)


Equitable Conversion

·         Gap between purchase and exchange of personal property- if die in between, own real/ personal property interest- no difference in real/ personal property go in CA- treated the same


Liability of Predeceased Intermediary’s Debts

·         Daughter debtor to creditor, die and not enough to pay back, creditor die and grandkids not get smaller share to pay back daughter’s debt §6410- not chargeable to share, other than debtor (not affect kids)


Heir Designation

·         Some states allow to designate heir- not in CA- someone to take that not take otherwise


Choice of Law

·         Personal property law of decedent domicile at time of death controls/ real property is law of situs of real property




Introduction designed to avoid intestacy

·         Require exact compliance w/ will requirements- some state’s substantial compliance- CA strict compliance- no right to make will- will is privilege

·         §6101 give away all property by will that own/ §6102 can give to anyone that like- §21116 vest at time of death (not vest at time that write will- no legal effect while alive (ambulatory))- title vest immediately at death

·         §6113 how will can be valid- Savings statute- valid if written other places (jx) even if not meet CA law/ valid if met requirements at time executed/ comply w/ law of domicile at time execute/ die

·         Elements: 1) legal capacity; 2) testamentary capacity; 3) testamentary intent; 4) proper formalities


Legal Capacity

·         Legal status necessary to execute will- CA 18 years old- §6100(a)- exceptions: Civil Code §63 emancipated minor okay; §6100(b) conservator w/ court permission can make will for minor

·         Family Code §§7002, 7050 automatic if marry and active duty w/ US Armed Forces- legal capacity to make will- if under 18, need parental consent and court permission to marry Family Code §302


Testamentary Capacity

·         Being of sound mind §6100 (a)/ §6100.5 elements

·         Understand nature of testamentary act- know document that control where property go when die

·         Understand and recall nature and situation of property- know what have- how exactly have to know- depends on situation and nature

·         Natural objects of bounty- know who family/ heirs are

·         Do all above at the same time- simultaneous

·         Look at time that will executed (exact moment of execution- §810 strong presumption of capacity- just b/c diagnose mental infirmity still presume need evidence against §811- expert or lay testimony able to use- ever lack capacity to make will?- drunk, drugged for sane person- Age- where in process to determine capacity- age not determinative of capacity, but more likely to be challenged (Contractual capacity higher standard)- what happen if question- if positive not write will, if gray area may have to get conservator or guardian appointed- great deference given attorney decision/ determination- use best judgement- no duty to make fair./ reasonable distribution of property under will, close cases court/ juries not like if cut off spouse/ kids- try to protect disposition of property as want


Testamentary Intent

·         Intend document to be will- §6111.5 use extrinsic evidence to show- Letter of Instruction- not will as no intent for letter to be testamentary document (future intent)- Sham Will- will written to have requisite intent as part of ceremony, initiation- Specimen Will- look like rough draft/ form of will- not look like final document- no bright line distinction but look at intent to see if intended to be will (usually self-help wills)


·         Ritual/ cautionary function- do deliberately (on purpose) not just thinking/ talking about

·         Evidentiary function- evidence of intent

·         Protective function- require witness- harder for undue influence

·         Channeling function- greater assurance that desire be carried out

·         CA must comply w/ all requirements- different requirements for types of wills

·         Attested/ Holographic (fewer requirements)/ Nuncupative will (No CA)/ Statutory (CA have form of will by statute)



·         In writing- §6110(a) not state what write on or with- Civil Code §14- writing is printing/ typing

·         Language- no requirement that in English (translation issues)

·         Signed- §6110(b)- (1) testator signature, not have to be full name- nickname, initial, etc. (try prevent question of validity)- Civil Code §14 signature by mark if a) not able to write and b) name written near mark by person signing as witness (give own signature) need both requirements; (2) by proxy, someone else sign for testator w/ permission a) in presence and b) at direction (not impair someone physically/ educationally challenged to have will)- no requirement that unable to sign; (3) conservator w/ court order

·         Location- Ca no requirement where go, before 1983 had to be at end

·         Witnessed- §6110(c)- 2 witnesses at least- competent §6112(a)- no age specified (if give test, okay?)- no publication requirement- witness must know that document that witness see is will- §6110(c)(2)- tell, read- not mean that have to know contents of will- attorney that write will should not be witness in practice

·         Order of signature- prudent practice testator sign first- strict/ English view- testator have to sign first- American/ continuous transaction view- okay if done as one continuous transaction- CA §6110(c)(1) witness signing of will, witness acknowledgement of signature, witness acknowledgement of will (witness can sign first)

·         Witness by mark- no prohibition but not recommend

·         Witness by proxy- no authority for

·         Location- no requirement but used to be in 1983 at end

·         Presence- all together what want- testator not need to sign in witness presence, witness not need be in testator presence (used to be requirement in 1983), witness not need to sign in each other’s presence- witness need be together when testator sign or acknowledge signature or will

·         Effect of witness as beneficiary- motive to lie?- not irrelevant or fatal- §6112 will valid §6112(b)- gift to interested witness may be affected §6112(c) presumption that secure gift by duress etc.- can be overcome by witness beneficiary- BOP to show that not gain by duress (enough evidence to overcome presumption)- not able to rebut §6112(d) gift fails, exception: 1) if interested witness also heir take smaller of intestate share or share under will- no conflict of interest to get smaller share; 2) extra attesting witness, not matter if interested; 3) in fiduciary capacity, gift to another, as receive in trust of another, not stand to personally gain- want someone familiar w/ testator/ young/ healthy witness b/c want around to testify/ traceable witness (change name)- ask for witness’ SSN so can track them down/ impress jury/judge good impression

·         Sign affidavit at end of will so not need in court testimony of witness, §8220- 40-45 states form for affidavit but not CA- no statutory form but borrow form from statutory will- use to probate will (no contest on will)- can have affidavit w/o being notarized (not need sworn statement if in writing and say subject to penalty for perjury)- Important to include at end of will

·         Will execution ceremony- formal ceremony should have- psychological effect on client- create evidence in following formalities- procedure for will execution ceremony


Holographic Will

·         Will in testator own handwriting- no relevance in ½ states- Ca make difference as reduced formalities §6111- not need witness (greater aura of validity- harder to forge)- inherent trustworthiness

·         How much need be in handwriting- some states require all of the writing to be in the testator’s handwriting (intent approach);  other surplussage approach where disregard non-holographic parts and look to see if still make sense; CA material provision test- §6111- signature in handwriting (no proxy) and material provisions (beneficiaries and property)- §6111(c) form will okay (modern view/ UPC)

·         Special rule- §6111(b) if undated- not know when take place- holographic invalid as to inconsistent if formal will avail unless show that after- if 2 holographic, only gifts given to same beneficiaries have effect (undated) rest vests by intestacy

·         Undated will if lack capacity at time which might have been written, unless evidence that capacity, presume invalid due to lack of capacity (usually homemade will w/o guidance of attorney)- construction and interpretation problem- might suggest if emergency (lack of time)/ extreme privacy/ interim will (if intestacy different from what not want)


Nuncupative Will

·         Oral will- not recognized in CA


Soldier’s and Seamen’s Wills

·         Not recognized in CA- designed for those in military


Statutory Will

·         Four state legislatures CA, ME, MI, WI- allow to fill in blank form to promote wills- easy form to dispose of estate

·         §6221 formalities- 1) fill in form; 2) sign; 3) witness observe testator sign; 4) witness sign in testator presence

·         Liberal interpretation for statutory wills- interpretation rules and attestation clause serve as affidavit §6222- not use if beneficiary is minor


Changes in Circumstances

·         1) examine will to find intent- if leave directions but if silent, then look to state law (presumptions)- provide for contingencies in will- carry out client intent rather than presumed intent; 2) correctly classify type of gift in will- property types

·         Devise- traditional gift of real property/ modern any gift in will §32, not necessarily govern will

·         Bequest- traditional gift of personal property/ modern any gift (CA no definition)

·         Legacy- traditional gift of personal property not sufficiently described to be specific (money), modern any gift under a will

·         Specific Gift- §21117, so specifically described that description so distinguishing from other property- measure at time will executed (know what will get)- know what item is

·         Specific Gift of General Nature- describe precisely but in generic terms such that not able to determine until testator dies, i.e. leave my car

·         General Gift- not specific- general assets ($)- generally pecuniary gift §21117(d), §21118(b) corporate securities- lack words of identification and possession- “I leave 10 shares Intel stock to X”

·         Demonstrative Gift- §21117(c)- general gift that come from specific fund/ property from which transfer primarily to be made- if fund insufficient go to other property

·         Residual Gift- where rest of property go after other beneficiaries paid off- forgotten items/ bulk of estate goes- avoid intestacy

·         Private/ Charitable Gifts- type of beneficiary


Ademption by Extinction

·         Specific gift that not there- demonstrative gift not adeem- CL identity theory- if not there, then not get anything- CA no identity theory- intent theory §21133 if sold and money due (get $ still owed)/ eminent domain award that owed but not paid/ unpaid insurance proceeds/ property acquired when foreclose on security for obligation- Not Entitled to Substitute Property  (reasonable equivalent of property)

·         §21134(a) conservator of testator sell specific property get equivalent monetary gift based on net sale price, unless recover for more than 1 year §21134(c)- §21134 conservator for eminent domain or insurance proceed, (c) also applies

·         §21138 if interest altered, still get what testator own, e.g. 100 acres property sold 75 acres, still get what left over

·         Ask what happen if not own anymore at time of death, tell what happen express instructions


Ademption by Satisfaction

·         Already given to beneficiary- like advancement- §21135 change many CL rules- only satisfaction if express provision in will, testator contemporaneous writing, donee beneficiary acknowledge- up to other beneficiaries to prove satisfaction- not big deal w/ specific gift- affect general gift ($)- harder to show than other states- might want to include anti-satisfaction clause


Change in Value of Gifted Asset

·         General Rule- irrelevant if appreciate or depreciate in value (ignored if specific gift)- inform that may not have same value at time of death

·         Corporate Securities- §21132 for specific gifts rather than value (general gift)- get securities given that in estate- additional securities of same entity (stock splits/ dividends) acquire because of action by entity (not purchase option)- more shares but not change in ownership %- of another entity b/c take over, reorganization, etc. (merger, consolidation) just be able to trace or b/c dividend reinvestment plan (not cash dividends/ interest acquired prior to death)

·         Interest on monetary gifts- no adjustment due to interest/ inflation- but if take long §12003 able to get interest one year from testator death- §12001 get 3% less than current judgement rate (10%- Civil Code §685.001(a)- §12000 testator provide alternate plans- inform about inflation and want to take into account?- can provide if want for inflation/ interest))



·         Applicable to specific gifts- pay odd debts on specifically given property before beneficiary gets (pay off debts before receive- not just equity but pay debt off)- ½ states presume exoneration (implied gift to pay off)- other ½ jx mess up estate plan because use up other gifts to pay off (no exoneration but can provide for in will)- always address exoneration in will- §21131 No exoneration rule- directive to pay debt, not mean exoneration



·         Which gifts fail when not enough $ in estate to do everything- how prioritize?- all debts come first and how prioritize who gets what?- §21400 look at will first to see if directions, absence of ranking most states first turn to statutory order, but in CA §21400 look to purpose of estate plan and abate accordingly (evidentiary fight that plan to abate exists/ attempt to follow testator intent)

·         §21402(a) statutory order of abatement if no plan- 1) property not disposed of by will (intestate property); 2) residual gifts; 3) general gifts to those other than relatives; 4) general gifts to relatives; 5) specific gifts to those other than relatives; 6) specific gifts to relatives


Tax Apportionment

·         estate tax- pay follow normal abatement order or all pay fair share- split jurisdictions- most states apportionment approach- tax shared by all beneficiaries- §20100-§20225- just know what mean and what CA do- apportion equally unless testator provide otherwise (ask client)


Marriage of Testator

·         By status as surviving spouse, entitled to certain things- automatically get ½ of community property, quasi community property- §100/ §101 only able to give away ½ community property/ quasi community property- look to see if pre-marital/ post-marital will

·         Pre-marital Will- §21610 what omitted spouse entitled to (presumed intent)(figure would have provided for or right thing to do)- CA provide share unlike other CP states: 1) decedent’s ½ of community/ quasi-community property; 2) share of separate property as if die intestate but no more than 50% separate property- Exceptions: if non-provision, show to be intentional §21611 find in will (“any future wife not to get anything”) no extrinsic evidence; sufficient non-probate transfers- statements made by decedent/ amount/ other evidence- show other way plan for; spouse waive rights- share come from §21612à intestate propertyà (not abatement order) all beneficiaries share burden equally (include property in revocable trust)- can do in other ways to carry out intent of testator (court determine not fair to do pro rata)

·         Post-marital Will- forced share?à NO, if written after marriage only get ½ CP/ QCP- CL states- surviving spouse cut out, then spouse get to elect against share under will (decide share under will/ share under statute)- not disinherit spouse- traditional get ½ or 1/3 or vary on number of children- modern approach like retirement plan and get more as marry longer 3%à15% (5 years)à 50% (15 years)



·         Will stays good, but certain provisions revoked- §6122à name as beneficiary/ power of appointment/ fiduciary (revoked)- can provide otherwise in will or if remarry old spouse then reinstate gifts- Treat ex-spouse as if had pre-deceased (alternate beneficiaries)- only divorce trigger statute (divorce/ annulment)- not apply to separation §6122(d) or file divorce actions- can alter otherwise to cut out of will- only for ex-spouse, not void gifts to former in-laws


Pretermitted Heirs

·         All states statute to protect children left out of will- get equivalent of intestate share (prevent inadvertently disinherit child)- 1) child born/ adopted after will execution §21620; 2) child really alive but testator believe that dead §21622; 3) child alive but not know that born (more likely for male) §21522

·         If born and know of not eligible for protection- only apply to children- get equivalent of intestate share (forced share)- §21623 order from which take- pro rata reduction (not abatement order)- unless court believe different way to carry out testator intent

·         Exception for child after will execution (born/ adopted)- §21621(a) evidence that omission intentional (in will)- (express provision in will) prevent false claims of paternity- §21621(b) pretermitted child other parent primary will beneficiary (at least one kid at time of will execution) omit other living kids at time- §21621(c) child provided for by significant non-probate transfer

·         Class gift to children- provide for children so not apply- no exception to §21622


Lapse death of beneficiary

·         §21109(a) dead people not take- look to will to see if name alternate beneficiary- §21110(b) look to intent 1st, where go if beneficiary die 1st- if instrument silent, anti-lapse statute §21110(a) provide substitute taker (not apply if will express contrary intention)- need relationship between testator and pre-deceased beneficiary before applies- CA apply to kindred of testator and testator’s spouse §21110(c) even apply to kindred of former spouse- §2115 follow same intestacy rule to determine if kindred- predeceased beneficiary must have beneficiary able to take (per capita w/ representation)- Anti-lapse statute not apply to friends/ to predeceased beneficiary w/o children

·         §21111(a) go through residuary clause if not apply- but if beneficiary of residual clause die, then other beneficiary in clause get §21111(b)- go to other residual beneficiary (look to anti-lapse statute first)


Cy Pres failure of gift to charity

·         equitable doctrine- equitable approximation do what would have want to have done- allow court to substitute beneficiary (charity close to intent of testator wanted gift to go to)- judge discretion



·         outlive by certain amount of time- will clear and convincing evidence that survive §21109 (common for time period in will- able to change in will)- not require gift to spouse, need survive more than 6 months- usually put survival period in (statutory will survival by120 hours (in will))


Revocation by Operation of Law

·         comply exactly w/ requirements to revoke will for all types of revocation- marriage/ divorce/ pretermitted heirs/ death of beneficiary/ beneficiary kill testator/ alienation (conveyed away already- ademption)- passage of time irrelevant/ change of feelings towards beneficiary also irrelevant


Revocation by Physical Act

·         §6120(b)- 1) mental capacity- no undue influence, fraud, duress; 2) intend to revoke- anti-testamentary intent- mistake in revocation not effective; 3) physical act- burn, torn, cancel, obliterate, or destroy- usually not have to completely burn- not allow proxy to do unless in presence and by direction; 4) need requirements 1) – 3) all at same time

·         inherently ambiguous- uncertain- not a good idea to rely upon

·         partial revocation by physical act- want fulfill testamentary wish, but not want fraud conflict of authority in US- some states all or nothing by physical act, others give effect to physical change as same evidentiary concerns

·         CA §6120 can have partial revocation- if substitute with bigger gift or another person, not effective as not revocation


Revocation by Subsequent Writing

·         §6120(a) express revocation (preferred)- revoke all prior wills- make sure each will dated, so know what will revoke others- also revoke by inconsistency, preference to will written/ executed closest to death- codacil amendment to will- now better to do new will (before risk of error in retyping and less risk of error than interpretation of multiple wills/ now on computer and better to do new will as not have to retype and reduce construction problems as not have to put together many instruments)

·         will not have to distribute property and can just revoke prior will - §88)



·         if find original will after death, presumption of non-revocation (find in normal place and nothing suspicious)- if no original presumption that will revoked §6124 (destroy w/ intent to revoke if competent until time of death)- rebuttable presumption (importance of safeguard original)



·         Will 1à Will 2 revoke Will 1à revoke Will 2- intestate? Or Will 1 revive?- 1) Revival- Will 1 revived as Will 2 never revoked Will 1 as not effective until death- CL- 2) No revival- Will 2, 2 documents in 1, will revocation and new will- revocation took effect immediately canceling Will 1 and dispositive instrument that not take effect upon death- majority- 3) start w/ presumption of no revival, but allow evidence to rebut- modern- CA approach- §6123(a) Will 2 revoked by physical act, presumption that Will 1 no good, but if evidence that want Will 1 revived when destroy Will 2 (extrinsic evidence okay)- contemporaneous or subsequent evidence that want revival of Will 1- §6123(b) Will 3 revoke Will 2- presumption of no revival- only allow evidence of what in Will 3 to rebut presumption and testator want Will 1 revived


Conditional Revocation

·         1) express conditional revocation- say in revoking instrument that only effect in certain conditions- rare- 2) implied conditional revocation- look at circumstances and so strong that imply condition- must have intended revocation- also known as dependent relative revocation (legal term)- bring will provision back to life- 1) replacement will scenario- Will 1 valid and Will 2 invalid (not say that Will 2 revoke Will 1) and then validly revoke Will 1 (not know invalid)- court may imply condition on revocation that Will 1 only revoked if Will 2 valid- lack proper intent to revoke Will 1 when destroy- goal to carry out testator intent- rather have will than die intestate (look at terms of instrument)- more similar, more likely conditional revocation- under facts which situation would rather have had (most common scenario)- more or less likely court will use?; 2) partial revocation by physical act- Ca partially revoke by physical act- cross out and write in new amount, if conditional that bigger gift good, then old amount no good, since no good, bring back smaller gift- what would testator have wanted? If decrease amount, revocation might work


Multiple Originals

·         Not want more than original (want copies though)- §6121 will w/ multiple originals revoked if one missing, evidentiary problem show that revoke w/ intent to destroy or not- must find all- burden to show revocation §8252 on person(s) that want show revocation- not litigated?


Will Interpretation and Construction

·         Strive to avoid- not usually arise until after probate- usually contest by those w/ stake or executor (fiduciary duty)- CA liberal §6111.5 in allowing extrinsic evidence to determine if valid will or meaning of will if language unclear

·         §21120 interpret will to give all words meaning (give effect to all terms) and presumption against intestacy

·         §21121 construe instrument as whole and not isolated parts

·         §21122 give words ordinary and grammatical meaning and unless intent otherwise clear and meaning be ascertained/ technical terms given technical meaning unless context contrary to intent and self drafted instrument by one who not know better



·         Patent- obviously ambiguous- fail to convey sensible meaning- “I leave 50% of estate to A, B, C”- extrinsic evidence admissible if meaning unclear- outside four corners of will- court not fill in blank spaces though, as nothing there to interpret

·         Latent- hidden ambiguity- problem when try to carry out what instrument says- need additional information to keep intent- beneficiary misdescription- description not make sense; property misdescription; specific bequest of general nature- leave car to x (more than 1 car)- extrinsic evidence allowed

·         No apparent ambiguity- do exactly what say but may not be what testator intended- need strong evidence and more commonly allow if draft by non-attorney- dangerous as could try to redistribute despite words (destroy predictability)- strong evidence to rebut- clear meaning rule- no ambiguityà not ambiguous and too bad- predictability but may not meet testator intent- §6111.5 adoption of clear meaning rule- §21122 give words meaning but bring in evidence that word mean something else under proper circumstances (leeway?)



·         External- piece together different documents that would make up will- more documents put together, increase likeliness of conflict- all instruments dated, avoid codacil if possible and destroy old instruments

·         Internal- continuity and relation w/in body of instrument- fit together as 1 unified whole- make sure all pages there at time sign, same as when probate- testator and witness initial each page/ different color ink when sign/ pages fasten together and not separate (no multiple staple holes)/ # pages ___ of ___ / same type of paper, color, size, and consistent type face/ look like print at same time/ avoid blank spaces/ not end sentence at end of page- sentence carry over


Incorporation by Reference

·         Incorporate another written instrument into will, as if incorporate document written w/in will- most statutes allow- §6130 normal incorporation by reference statute

·         Require: 1) intent to incorporate; 2) in existence at time of will execution- frozen as of date of will execution- exist at date of will execution; 3) identification- description incorporate document sufficiently- more specific the better- other document not need be valid as just incorporate piece of paper- careful in how use b/c frozen as of date and what happen if lose

·         Codicils- republication- incorporate will by reference (non-inconsistent parts by reference)- document date is date of latest codacil and use date for all interpretation rules (date of codacil)

·         Ex. Write invalid willà codacil- terms of original will given effect as to codacil- fact that original invalid not matter- codacil bootstrap invalid will- use of holographic codacil to bootstrap non-holographic will not work b/c lose holographic character- codacil have to meet requirements of valid will


Facts of Independent Significance

·         Legal purpose other than disposing of property at death- legal existence other than distribution- §6131 can even be events after death of testator- car/ wife/ class gift/ content of safe deposit box (what content?)- hard determine if not tangible item- list of property and who go to not fact of independent significance- some states will authorize though for tangible personal property and all have to do is sign (CA not allow)


Pour Over Provision

·         Leave property to inter vivos trust (clause in will)


Precatory Language

·         Give earnest/ serious request but not legally binding (mandatory)- “I would like …”, “I hope …”, “I wish …”- what effect give?- look at what toward- if limit/ restrict gift then generally no effect, merely suggestive- not strong enough language for mandatory duty- if use for instructions to administrator of estate (executor), then greater chance of enforcement (duties of executor)- NOT USE IN WILL- give w/ restrictions or no restrictions- if clients wants to give suggestions on what to do with property, then do in separate non-binding document or the present trend, videotape


Class Gifts

·         Beneficiary designate in general terms than by name- i.e. children, grandchildren, siblings- generic term- if include specific individual w/ court name, court interpret as specific gift (specific over general) “to my children, A and B”- CA §21113 rule of convenience- when testator die (present gift) or when able to enjoy (future interest) class determined

·         §21113(c) posthumous class- if conceived at relevant time, then determine that member of class, otherwise if not conceived a relevant time, then not member of class- adopted, step-children, out-of-wedlock follow intestacyà §21115 but can provide otherwise in will (how class membership determined)

·         §21115(b) transfer to another’s children, then not child (give up for adoption) of non-natural parent, need live w/ those parents as a minor (not considered child of person that give gift to)- only take if live w/ as minor

·         Anti-lapse statute- save gift for descendant of predeceased beneficiary- §21110(a) saves class gift, except if class member die before will execution and testator knew- testator can provide alternate rules of how to interpret

·         §21114 how determine heir, relatives- mean those take under intestacy (usually in residual clause), can include person that receive specific gift already, unless specify otherwise


Dead Person Statute

·         CA repealed, but in federal rules- limitation on what deceased person said or did if from party to action (limitation on evidence)- modern view- credibility issue (what weight give)- evidence code §1261 closest, inadmissible only if lack of trustworthiness


Will Contests

·         General contest by heirs, if get bigger portion under intestacy or by someone who got bigger portion under prior will- 1) disinherit close family member in favor of distant relative, friends, charity- jury invalidate in close cases; 2) unequal treatment of children w/o good reason; 3) sudden, significant change in disposition plan; 4) imposition of excessive restrictions on gifts; 5) because testator older or disabled, even w/o shred of other evidence; 6) testator that act in peculiar manner- more factors meetàmore likely to contest will- able to anticipate and take steps to avoid which vary in cost/ predictability/ effectiveness

·         §8270 (a) interested person bring contest- §48 define interested person

·         Contest before probate §8004 or after probate §8270(a) w/in 120 days (other states year or two)- §8270(b) if minor w/o guardian or incompetent w/o guardian have until estate distributed (other states toll until after minority/ incompetancy)- give certainty, prevent disruption due to court order

·         Burden of Proof §8252, proponent need prove executionà self-proving affidavit, contestant have BOP to show other things (not allow use self-proving affidavit, bring in witness evidence code §1413) such as undue influence, duress, etc.

·         Not occur that often, but frequently will litigation in addition to construction and interpretation


Failure to satisfy requirements of valid will

1.        Legal capacity

2.        Testamentary capacity

3.        Testamentary intent

4.        Formalities

·         proponent BOP, contestant show lack of capacity, intent, formality- not will in first place


Insane Delusion

·         have capacity but insane delusion- believe that state of supposed facts that 1) not exist; 2) no sane person would believe- more than misconception/ mistake- look to see of could show facts to contrary, person would change opinion, then not insane delusion

·         §6100.5(a)(2) not really define, but explain- fact question what insane delusion

·         merely have insane delusion, need to show context between (nexus) disposition and insane delusion- need affect disposition of property

·         if religious based, court unlikely to hold that insane delusion


Undue Influence

·         has capacity but manipulate by dominant person/ influence/ power- §6104 will ineffective- not defineàcase law- 1) influence existed and exerted by evil person; 2) subvert testator mind (overpower testator free will); 3) causation- execute will not do but for undue influence- §8252 contestant have BOP to show elements

·         rare to have direct evidence of undue influence- go to circumstantial evidence- greater present, more likely to find undue influence- 1) motive of undue influencer; 2) untraditional disposition- cut out close relative/ disinherit spouse or children/ uneven distribution w/o good reason/ big change from prior wills; 3) opportunity and access to testator; 4) relation between testator and undue influencer- confidential relationship (not arms length relationship- expect treat in more fair way); 5) susceptibility of testator and ability to resist- how open to manipulation (age/ health/ intelligence/ business experience); 6) beneficiary connection with making of will (write, take to attorney and sit with, dictate)

·         mere influence okay as long as not cross line/ mere opportunity not mean actually do/ not just because disposition unfair- no obligation to treat all fair

·         many states likelihood of undue influence so strong, even if none demonstrated- §21350 gift deemed invalid (void) list of beneficiaries where presumption apply- drafter; draft will for another and beneficiary is one of drafter’s relatives; that one your cohabitator; that one your employee, partner, shareholder; that person of fiduciary nature that transcribe; care custodian of dependent adult- §21350(a)

·         Exception: §21351- 1) testator related to beneficiary by blood/ marriage; 2) cohabitate w/ beneficiary; 3) will reviewed by independent attorney (§21351(b) form for review by independent attorney); 4) substitute judgement provision §21351(c); 5) court review and no influence by clear and convincing evidence (limited, non-drafter beneficiary will); 6) government transferee

·         Not fall in exception, void §21353- pretend die before testator and w/o decendants- can retain amount would have taken of under intestacy (limit to automatic statutory voiding)

·         §21356 done timely before order for final distribution (person trying to set aside)

·         Possibility of disbarment- Rule of Professional Responsibility 4-400- f make will to give to self as beneficiary can be disbarred- name self, parent, children, sibling, or spouse as beneficiary in will that draft- Exception: 1) token gift/ not substantial (look at testator estate or beneficiary estate?); 2) client related to donee

·         Parents: okay to draft will if split equally among children (not do if treat differently); self and siblings

·         Charitable gift- mortmain statute- restrict gift to charity, protect family members from unwise gift near time of death- most states repeal or court hold unconstitutional violation of Equal Protection Clause- CA repeal 1971



·         Similar to undue influence but with force/ violence (physical force)



1.        False Representation

2.        Knowledge of falsity (intend to deceive)

3.        Victim reasonably believed

4.        Causation- victim not do but for fraud

·         Fraud in factum/ execution- not even know that sign will- deceive to identity or contents of will

·         Fraud in inducement- know what in will and know that will, but provisions in will induced by fraud



1.        Not induce by another

2.        Induce by another’s innocent mistake- no evil conduct

·         Mistake in execution- not know will or contents- pure mistake

·         Mistake in inducement- will influenced by mistake (provisions)- court not correct because no evil conduct (unlikely to correct problem)

·         Read in dependent relative revocation to save? As generally court will not rewrite will provisions



·         Invalidate whole will- deny probateà pass through intestacy or prior will

·         Invalidate part of will- only affect part of will §6104


No Contest Clause

·         In terrorem/ forfeiture clause- conditional gift that if contest will and lose, then take nothing- common as low cost- carry out client’s intent- jx vary on enforceability- CA §21300-§21308

·         §21303 are enforceable, courts not like forfeiture §21304 so strictly construe clause (beneficiary conduct that would prevent- will construction action)

·         not want to penalize in effect legal rightsà exceptions where not give effect to clause §21306-§21307 so can contest w/o fear of losing: 1) probable cause that will forgery; 2) probable cause that testator revoke will; 3) attempt to set aside gift to drafter or relative of drafter (§21306) require probable cause

·         §21307 exception: 1) attack gift because another beneficiary draft; 2) gave instruction to drafter

·         allow before try to contest to bring declaratory action to see if what would do would trigger no contest clause §21320-§21322

·         Need to provide incentive not to contest (something to lose); describe triggering conduct carefullyà be specific; name who takes gift if gift fail


Other Methods of Preventing Will Contests

·         Statement of reason for disposition- try to avoid- can backfire as may upset beneficiaries, not accurate facts

·         Means spirited language- avoidà libel?

·         Holographic will- aura of validity

·         Affidavits of those familiar w/ testator

·         Document transactions w/ testator- paper trail of testator telling what want done

·         Other evidence preservation- easier to do when testator alive

·         Videotape will execution ceremony

·         Preservation of prior will- destroy b/c prevent external construction issue, but keep if old will better than intestacy)

·         Will execution on regular basis- repeat sign same will so hard to contest

·         Traditional disposition

·         Non-probate transfers- harder to contest than will

·         Simultaneous gift to heir- on date of will execution (would take $ from those that claim incompetent?)

·         Contract not to contest

·         Ante-Mortem Probate- AR, ND< OH allow prove will valid while still alive

·         Family Settlement Agreement- ADR


Conditional Wills

·         Will operate only if some event occurs/ not occurs §6105 rare to write- court will presume against- if want to use, then need express language not why will was made


Conditional Gifts

·         Gift conditioned on certain event

·         Condition precedent- occur before can claim gift

·         Condition subsequent- have gift until condition violated

·         CA recognize both

·         Courts not like conditions so try to construe so that not condition- Conditions that illegal or against public policy not effective- personal habit of beneficiary- will generally uphold but might go against public policy- marriage/ divorce- what testator doing?- good/ bad public policy- up to court based on facts of case- use w/ care unless facts not disputed- BE CLEAR and state where property go if not effective


Combination Wills

·         Joint Wills- single testamentary interest that contain will of more than 1 person- NOT DO- reduce costs before computer- problem in trying to probate will again on death of other testator as will already probated or if one want to revoke

·         Reciprocal will- parallel disposition plans- spouses- “sweetheart wills”- no reason not to do- make sure get names right

·         Contractual wills- will consideration for k- make will certain way/ revoke/ die intestate- litigation producer- §150 contractual nature of will have to be proved by one way listed in statute, k for after 12/31/84- will state material provisions of k/ will mention there is k and extrinsic evidence for terms/ separate writing signed by decedent evidencing the k (state terms of k)- if both parties alive, k generally can be changed, but once one die then irrevocable- only thing that prevent revoke will death/ incompetency, but may be in breach of k- court create constructive trust as equitable remedy for breach/ quantum meruit for services- problem as other ways can do to get same results w/o complications


Election Wills

·         CL surviving spouse right to elect statutory share if not provided for or smaller share (forced share than share under will)- elect to take under will, but agree to will and give up property or elect to not take under the will and keep property- rare when not related- used to manipulate spouse/ family- give away spouse ½ of community property but give something else of great value



·         Can disclaim gift under will and same rules as intestacy


Estate Administration

·         1) prove new owner of property (title from decedentà heirs/ beneficiaries); 2) pay creditors

·         Job of personal representative appointed by court (CAà superior court)- Will name executor (select person in charge of job)- family member/ primary beneficiary/ professional (bank attorney)

·         Look at wide variety of traits: 1) honesty; 2) common sense/ good judgement; 3) financially responsible; 4) investment experience and skill; 5) proximity; 6) fiduciary responsibility; 7) longevity; 8) proximity; 9) lack of distractions; 10) prior approval (want to do); 11) successors

·         No executor namedà administrator w/ will annexed; administrator CTA appointed by court/ intestateà administrator

·         1) Collect and preserve property- only collect probate assets; 2) manage assets; 3) inventory and appraisals; 4) pay debt and tax; 5) distribution to heirs and beneficiaries

1.        find proper applicant- not automatic- need someone to apply

2.        determine if will- try to find will- 30 days if have must turn in to court

3.        petition to probate (special form)

4.        file in Superior Court- county where domiciled at time of death- filing fees ~$200 ($193)- set hearing date

5.        Citation to interested party- type of notice given- CA publicationà publish notice 3 times in newspaper (city/ county) domiciled at time of death- many county clerk of court help arrange or force to do by self (15 days before, non-consecutive days) and file proof of publication- CA mail first class- heirs/ beneficiaries/ executors 15 days before hearing date- decide to probate will and appoint executor- usually quick (pro forma)- special provisions

6.        Admit to probate

7.        Decide on type of administration- court supervised/ relatively independent



·         Publication and notice by mail of petition for probate filedà hearing to determine if probate and type of administration- can request independent administration than court approved administration (go to court to get permission and confirm what done which cumbersome)

·         Independent administration (other states almost completely independent) CA court still have some say, pay personal representative/ self dealing/ pay personal representative attorney/ before final administration

·         Things able to do w/o go to court but still require to give notice to heirs §10400-§10592- independent administration most often use- some states not done and others not have to go to court- safeguards to prevent abuse- can put in will that not want independent administration


Personal Representative

·         Need to qualify- §8403 take oath of office/ §8480 post bond- put own property at risk if do something bad (court determine- usually equal to estate value) so heir have something to collect

·         Can purchase bond from bond company- pay premium and company pay if do something bad- presumed requirement

·         §8481 able to get rid of: 1) testator waive in will; 2) heirs/ beneficiaries waive- bond usually waived, court can still require bond


Entitled to Letters

·         testamentaryà will/ administrationà intestate- prove that personal representative- authority to administer estate- generally get multiple copies as people want copies- out of state creditors want originals


Collect and Preserve Probate Assets

·         Letters give authority- manage- §9600 use ordinary care and diligence/ §9601 liable if lose negligently- need comprehensive inventory of everything in estate- court appointed probate referee to appraise property- if simple court can waive and allow representative to do- value as of date of death- from date of letters have 4 months to do- provide list for beneficiaries/ heirs and creditors- certain property exempt from beneficiaries/ heirs and creditors- exempt personal property/ allowance/ homestead

·         Homestead- immediate occupancy right/ long term/ creditor protection- §6500 surviving spouse and children stay 60 days after inventory (right stronger than heir/ beneficiary)- court can make long term §6520-§6528 set aside dwelling for surviving spouse and minor children (court can indicate how long can stay in family home- rights similar to life tenant- superior to that of heir/ beneficiary that own)- some states couple of months or for rest of life/ limited amount of protection from creditors under homestead- ask for so can get- §6524 rights of life tenant/ §6523 factors

·         Exempt personal property- §6500 apparel, household furnishings 60 days after inventory filed- court can grant longer period for good cause- §6510 court can on petition set aside for spouse/ minor children- convince the court- award to and interfere w/ rights of heir/ beneficiary and creditors- discretion of what court will grant

·         Family allowance- more $ set aside off top of estate §6540-§6545- mandatorily entitled spouse/ minor children/ adult disabled dependent- can give to adult children (dependent but not disabled)- not allow if other means of support- get until final distribution of property or if estate insolvent for one year- can get spouse to waive rights in marital agreement- beat most creditors §11420

·         Provide notice to creditors in same 4 month period (find out who owe money) and need submit claim in timely manner- creditor be paid before heirs/ beneficiaries- end of 4 months or 60 days after notice- personal representative decide if claim good and whether to be paid- tell what decided- statute have order in which creditors are paid §11420 (priority of creditors)

·         Petition for order of final distribution- how divide up- notice to heirs/ beneficiaries- then close estate- generally under 9 months/ short form administration authority- all go to surviving spouse §13500/ total value $100k or less for estate §1300 easier procedure 4-6 months – if longer than year, need go to court and file report- if property in another state go there and need administration (ancillary administration)

·         Filing fees/ payment of personal representative §10800-§10805- follow instruction in will and then statutory scheme- §10800 statutory fee- court can grant more compensation- many states reasonable compensation- §10810-§10814 payment for personal representative attorney- not allow to collect for both services




Non-probate Transfers


Non-Probate Transfer

·         Beyond scope of will/ intestacy- not go through probate process- non-estate planning reasons (non-gratuitous probate transfer)

·         Estate planning reasons: 1) accelerate asset distribution not have to go through probate; prevent gap between death and administration (management in between); 2) cheaper than estate plan and administration costs; 3) enhance confidentiality- keep things private; prevent public disclosure; 4) reduce taxes- difference between  probate estate- property through probate and taxable estate- include probate and non-probate transfers; 5) flexibility more things than will allow to do and easier; 6) change w/ less difficulty; 7) protect from creditors; 8) isolate from contest (stronger b/c done while alive- harder to attack); 9) clients understand better


Inter vivo Transfer

·         Give away while alive

·         Outright gift- 1) present donative intent; 2) delivery; 3) acceptance by donee (generally presumed)- tax benefit $10k per year per donee w/o gift tax (except medical expenses/ tuition where unlimited amount)- irrevocable and no longer able to control- lose manipulative power- minor not able to manage property or people incompetent

·         Gift causa mortis- gift because imminent and impending death (fear)- become revocable and automatically revoked if survive- §5700-§5705- rules for what are and how handle

·         Inter vivo trust- common

·         Transfer of future interest- i.e. life estate and give away remainder- becoming common

·         Power of appointment- give ability to name new owner- not common


Co-ownership of Property

·         Tenancy in common- not probate avoiding technique- no survivorship feature

·         Joint tenancy- unity of 1) time; 2) title; 3) interest; 4) possession- survivorship so probate avoiding technique- Civil Code §683 provide for joint tenant to get survivorship feature- some states require that need wording that w/ rights of survivorship


Multiple Party Accounts

·         Joint account- who own/ right to withdraw- ownership in proportion to net contribution- §5100-§5407- right to withdraw (all of proceeds)- under CA law §5302(a) right of survivorship presumed- jx split- clear and convincing evidence of another intent

·         Pay on death account- during life time ownership in deposit- only on death does payee have any rights- depositor give up nothing- all original people die before pay on death payee have rights if joint account- only way be entitle to anything, need outlive depositors

·         Totten trust account- husband or wife in trust for c- bank account but not trust, same rules as pay on death account- generally not want to use



·         Life insurance- k- insured pay premium and when die pay $ to beneficiary as long as not make estate beneficiary (no probate)- creditors not able to get at b/c not probate asset

·         Annuity- give big sum of money and make periodic payments for rest of life/ term- prevent live too long- other annuity death benefit

·         Retirement/ benefit plans

·         Transfer on death arrangement- securities, car- automatic transfer §5500- like pay on death account






·         Unique b/c way ownership of property divided: 1) legal; 2) equitable

·         Legal held by trustee, responsibilities of ownership but no benefits (duties of manage and best hope for is payment for services) and if hive in trust then have fiduciary duties: utmost care and loyalty- personally liable for lapses

·         Equitable title held by beneficiary- no control over property may not actually benefit, which determine by terms of trust

·         Settlor person w/ title originally and split into legal and equitable interest, a.k.a. trustor, grantor (tax context), donor

·         Type of property transfer- unilateral conveyance of property and not k/ agreement- may also be principal of trust (property), corpus, res, estate

·         Settlor owner of property and transfer legal interest to trustee and equitable title to beneficiary (personal/ charity deserving of windfall)- trustee invest and manage and follow settlor instructions—follow mandate of law and terms of trust- follow terms of instrument to figure out distribution- end when no property or at set time and legal and equitable title reunited- beneficiary can be a class as long as readily ascertainable

·         Advantageous/ flexible tool- 1) provide for/ protect beneficiary (minors/ spendthrifts/ persons susceptible to influence/ persons lacking management skills (lack experience/ skill); 2) flexible distribution of assets (restriction on how spend/ when/ et cetera); 3) protect against settlor incompetence (stand by trust- prevent need for guardian- serve as trustee and name successor trustee)- can also designate agent to take over property (durable power of attorney); 4) professional management of property- greater skill/ competence managing property- provide someone to sue if negligent- not insure that good but if negligence; 5) probate avoidance- create while settlor alive; 6) tax benefits

·         Best technique?- overpromotion of trusts- cost $ as additional fees- transfer of property- time/ expense/ hassle- better way of achieving goals?

·         Uniform Trust Act (in progress of being drafted)- base on CA/TX

1.        Trust intent

2.        Capacity to create intent

3.        Compliance w/ statute of frauds (writing necessary)

4.        Legal purpose

5.        Must contain property

6.        Trustee holding legal title

7.        Beneficiary holding equitable title

8.        No violation of Rule Against Perpetuities

·         Trust intent- threshhold factor- §15201 need intention to create trust- 1) intent to split title into legal/ equitable interest; 2) imposition of enforceable legal duties on trustee

·         Not have to know create trust (know term that “trust”) no particular language requirement

·         Precatory language- need create legally enforceable duties against trustee, more than moral obligation

·         Must be present intent to create trust- not have to know beneficiary (like gift as acceptance presumed)- at CL, trust called “uses” b/c beneficiary get use property and before 1500 not enforceable (equitable court enforce) and use to get around feudal duties- Statute of Uses 1536 got rid of trust and give everything to beneficiary- create exceptions to Statute of Uses, if active trust w/ actual duties on trustee not just nominal then would enforce- CA no Statute of Uses

·         Future interest enough to split title- only if person have all legal and equitable  title then no trust b/c merger as title reunited

·         Can end trust by merging trustee/ beneficiary in trustee, beneficiary, 3rd party

·         CA right to revoke trust


How Create Trust

·         Time at which trust created: 1) during lifetime- what do w/ legal title §15200- declaration or self-declaration of  trust- settlor become (declare self) trustee- impose trust duty on self and transfer equitable title/ transfer (conveyance) in trust- transfer legal title- inter vivo/ living trusts; 2) at death- testamentary trust- contained inside will so no effect until die- require valid will (not probate avoiding)

·         Consideration not required for trustà conveyance (not a k) §15208- consideration might be required if promise to create trust in future (consideration required to enforce k) §15208, §15200(e); assets of trust are a promise (need consideration for promise that in trust)



·         Create trust by split title and impose duties

·         Capacity- same to make conveyance free of trust- conveyance of property inter vivo/ make will testamentary trust

·         Retention of power- power to revoke/ amend trust- if convey legal title and retain power then no problem, but if declaration of trust and retain all powers (settlor, trustee, beneficiary (life)) by include remainder beneficiaryà old approach no trust b/c too illusory (remainder beneficiary weak value), court see as sham (nothing to enforce) b/c could revoke (change beneficiary)- modern view court change opinion b/c split in title and interest, even though weak (property interest)- split in title- CA §15209 trust good- sacrifice nothing and avoid probate “Dacey” trust- if have power to revoke, not able to avoid creditors- §18200 creditors- irrevocable and non-fraudulent transfer then able to avoid creditors

·         Statute of frauds- writing requirement- protect trustee (have all title if not good trust)- protect from false claim of donee that trust and that trustee- CA §15206 for real property: 1) written conveyance signed by settlor (enough terms so know what to do- beneficiary/ property/ duties)- have settlor and trustee sign trust declaration (prudent practice); 2) written instrument signed by trustee- authorizing agents if agency authorized in writing- part performance exception (case law); 3) trusts by operation of law (resulting and constructive)- §15207 personal property- can be oral but show terms and existence by clear and convincing evidence; oral evidence by settlor that trust not enough – hard to prove

·         Trust purpose- §15203 create for any purpose (tremendous flexibility)- §15204 can have indefinite/ general purpose if can figure out reason- No purpose or against public policy- how decide legality of purpose?

·         Majority view- look at settlor’s intent- trust invalid if tend to cause breach of law/ public policy even if trustee never do bad act (intent/ purpose)

·         Use view- focus on how money used rather than intent- minority view- CA case law- use approach

·         rarely litigated

·         Discriminatory trust- designed for group- courts divided on how to deal w/

·         What do if illegal- creditors biggest complainers- contesting person (creditor) set aside amount of claim (not necessarily all)- will look at all the facts

1.        Undo arrangement and give property back; or

2.        Let things stand as are and give property to trustee (court generally leave let trustee keep as deter future bad acts)

·         Trust must have property (conveyance)- §15202- must be able to split title- anything that can be subject of ownership (present and future interest/ k rights/ tangible, intangible property)- also need to be able to transfer- some k that not assignable (property not able to be transferred therefore not trust property)- also not property that not own (expectancy not be held in trust b/c not own yet)- determine what property placed in trust (clearly ascertainable)- for trust to be effective, property need to be conveyed (funding of trust- place property in trust)- i.e. real propertyà deed from settlor to trustee (self declaration of trustà convey from self as individual to self as trustee (trustee capacity))- w/o property never make to trust/ personal property- hand over but not always work (i.e. title to car) or if self declaration, deed to personal property (deed of gift), label property (ear mark as belong to trust), record gift deed (to protect against 3rd parties)



·         §84 trust property not go to heir/ beneficiary/ trust creditors- legal interest- not in estate upon death

·         Capacity- to take, hold, transfer properly- 18 years and competent or if corporation follow CA law requirements

·         Acceptance- not become trustee until accept §15661(c)- liable to comply w/ trust at that point- §15600(a) 2 methods: 1) signature of trustee- sign trust or separate written acceptance (inter vivo trust common practice sign at same time); 2) trustee knowingly exercise powers/ duties under trust instrument (like estoppel if act like trustee)- name alternates- §15600(b) person name as trustee can come in and manage for short time w/o accept trustee position to preserve trust property if risk of damage (sign written declaration of non-acceptance)- §15601 rejection by signed writing or fail to accept w/in reasonable time- look to see if alternate trustee §15660(b) or method for selecting alternate trustee, i.e. majority vote of beneficiaries/ adult beneficiaries (agreement) then trust company can take over §15660(b)à go to court §15660(d) have to consider beneficiary at least 14 years old- not fail for lack of trustee as attempt to save- can designate that if trustee not accept, then trust fails (personal trustee), court not appoint trustee (uncommon)- same if successor trustee

·         Qualification- oath of office/ bond (protect from evil trustee), §15602(a) bond generally not required (presumption that not required); exception: 1) settlor require §15602(a)(1) but court can still waive §15602(b)- trust company not have to post bond §15602(e)- can require to post bond even if waived to protect beneficiary §15602(a)(2)- if settlor did not pick trustee, bond required §15602(a)(3)- Majority bond waived- put in as state law presumption different

·         Multiple trustee- all trustee have to agree §15620- unanimous action unless provide otherwise- §15622 if temporary incapacity remain trustee take action- court not fill vacancy unless all otherwise provided (§15621) not indicate that vacancy not be filled (fill vacancy only when none left (court))

·         §15640 Resignation- method in instrument; consent of person to revoke trust; consent of adult beneficiary; court order- not able to force to stay in office

·         Removal- enforcement mechanism



·         Equitable title- enforce fiduciary duties against trustee §24(c)

·         Capacity- take and hold title to property- §15205(a) private trust must have beneficiary

·         How describe: ascertainable w/ reasonable certainty- §15205(b)(1)- allow for vague definition of beneficiary- sufficiently describe so some person meet or fit class or allow trustee to select who within class- §15205(b)(2) settlor provide power

·         Can have multiple beneficiaries- concurrent or successive and can designate by class- not have to tell beneficiary that beneficiary- §15800 if trust revocable then trustee owe duty to person w/ revocation power not beneficiary (if person w/ revocation power competent)

·         Honorary trust- benefit for non-human/ non-charitable benefit- on honor to carry out b/c beneficiary lack standing to force trustee to carry out- pet/ statues/ masses (now charitable purpose)- in US majority rule that not work, need beneficiary that can go to court to enforce- Ex 19-48 way get around- person beneficiary but condition on carry out obligation- trend to permit in some circumstances- CA broadest allowing- §15212 animals (domestic or pet animals) limit duration to life of animal- not need beneficiary who can enforce- §15211 lawful, non-charitable purpose allowed, limit to 21 years

·         Incidental beneficiary- benefit from trust but not beneficiary- lack standing to be able to enforce- generally no standing to be able to enforce- hope to qualify as interested person under §48 and §17200.1 file petition

·         Disclaimer- like heirs/ beneficiaries- can disclaim beneficiary interest- treat as if disclaiming person died first

·         What beneficiary can do with equitable interest- do what want- transfer- while alive or at death- rarely apply as limited by trust instrument as what can do w/ interest (beneficiary)- restriction on ability to transfer normally- most interests not pass on death because life interest or spendthrift provision

·         Creditors- general rule totally subject to creditors- §709.10 Code of Civil Procedure- most have spendthrift provision which hamper ability to reach trust

·         Spendthrift provision- clause that 1) beneficiary not transfer; 2) creditor not attach- §15300 (income)/ §15301 (principal restriction- creditors)- protect settlor intent- no requirement that be spendthrift and not manage $- no effect once distribute to beneficiary- no specific language just so intent clear- Ca 8 exceptions to protection (states vary where not legal at allà states that absolute protection)- 1) Due but unpaid principal distribution §15301(b)- principal due to beneficiary but not yet paid- go to court to force distribution- go to court to force distribution; 2) settlor as beneficiary §15304(a) not do to protect self (almost every state have) own property protection (AL, De allow to do); 3) spousal and child support owe §15305 (common exception); 4) restitution judgement owed by beneficiary §15305.5 (criminal penalty); 5) liability to reimburse CA for public support §15306; 6) creditors can go after 25% of interest in trust §15306.5, but not if can show $ needed for support of beneficiary or dependents; 7) distribution in excess of amount for education or support §15307; 8) federal law- federal government claims- Supremacy Clause- tax lien

·         Discretionary trust- trustee decide to pay and in what amount- sprinkle/ spray trusts- limit to standards (education or health care) or may not limit to standard- typically done for children and not know when and what need (act as substitute for parent)- more common than mandatory provisions- can also combine mandatory and discretionary- beneficiary really only have expectancy but no right to demand payment (except abuse of discretion)- §15303(a) creditors generally not able to force payment, exception: 1) settlor as beneficiary §15304(b) reach maximum amount could have to distribute; 2) §15303(b) trustee serviced with process by judgement creditor but not apply when spendthrift clause; 3) liability to reimburse CA for support §15306(a)(3); 4) federal government can get interest but not force to make payment- Trustee have to exercise discretion reasonably- §16801 trustee act in accord w/ fiduciary principles and not act in bad faith or disregard of principles of trust- not deprive court of authority to make sure that follow instructions- disagreement whether absolute discretion or that need to be reasonable (court can always review for abuse of discretion)- CA §16080 exercise discretion reasonably- reasonableness standard- give enhanced ability to enforce trust- remedy- court make distribution decision or instruct trustee on duties and tell to do better next time- Courts reluctant to find abuse of discretion- prefer to provide instructions if give remedy

·         Common Restrictions- general restriction to life of beneficiary- survival not requirement and no alternate beneficiaries then anti-lapse statute apply §21110 substitute beneficiary for trust/ spendthrift clause- beneficiary not transfer and creditor not reach- CA exceptions for creditors to pierce through/ discretionary trust- no interest in trust until decide to distribute- distribution not mandatory

·         Support provision- limit for support of beneficiaries- mandatory or discretionary- support trusts deemed spendthrift (even if not include §15302 treat as spendthrift)- all exceptions also apply- common for support of beneficiaries- 1) define support- what mean?- enough to stay alive (not define- lifestyle accustomed to before become beneficiary- maintain status quo (court definition))- give better standard of living or safety net?- how consider other resources (income, assets, etc. of beneficiary)- provide x level of support and anything made extra (first dollars) or look all that have and only provide difference from support already have (last dollars)- must, may, or not consider other assets/ resources of beneficiary (trustee able to consider- provide in trust instrument)- discretion up to trustee (in terorem clause?)

·         Pourover provision- pass property from in will to trust- create trust while alive and make sure that operate correctly- trust created by individual or another- easier to change trust than will- allow will be receptacle from other sources (i.e. life insurance)- unified disposition plan- common will provision that leave property to trust- long history- originally not allowed (only allow testamentary trust- trust terms not meet requirements of will)- way get around (incorporate trust into will by reference- awkward- create 2 trusts (inter vivo and testamentary) problem if terms change (incorporated trust provisions frozen as of date of execution)- treat as fact of independent significance- property just go into trust (like person)à uniform act (Uniform Testamentary Addition to Trusts Acts) 1960, revision 1991 (almost all states have some version) CA adopt but slightly different §6300- authorize over technique and require to use- 1) trust created by testator or 3rd party; 2) trust identified in will; 3) trust in writing (incorporation by reference); 4) trust instrument executed before or concurrently w/ will execution (incorporation by reference) deviate from uniform act where not required before or concurrently of will execution (1960 version match); 5) trust not have to be founded (all requirements that trust document be signed and in writing) not ever have to put in property until pour over provision take effect- if trust later revoked, pour over not work (fact of independent significance) not pour over to trust that not there- govern by current terms of trust (fact of independent significance)- can amend terms of trust even after testator’s death (terms not frozen)- govern by current terms of trust (trust of 3rd party)

·         Life Insurance Trust- life insurance policy payable to trust rather than ultimate beneficiary- beneficiary named as trustee of trust all control of how proceeds used (apply to all death benefit plans)- CA not a problem (established concept)- trust can exist purely on contract right to receive property (property interest) as can be corpus of trust (not need other property to fund trust) for either inter vivo or testamentary trust

·         Create inter vivo or testamentary trust?- testamentary trust- zero administration costs as no trust §6320-§6330 but problem if will fails- inter vivo trust- more predictable but administration costs (add additional property?- good as administration costs reduce gross estate as might use to maintain premium payments)- trust revocable or irrevocable?- (irrevocable trust- save taxes)

·         Rule Against Perpetuities- not apply to charitable trusts and only to private trusts- exceptions depend on state- dynasty trust for self and decedents (allow if no RAP)- contingent interest must vest or fail w/in 21 years from life in being- CA Uniform Statutory Rule Against Perpetuities §21200-§21231 supercede CL rule- interest must vest or fail w/in 90 years- wait and see policy- 90 years from creation to see if vest and if not vest, court will reform so works- similar to abolishment of Rule- throw in savings clause that tell where property goes if violate RAP


Charitable Trusts

·         All rules for private trusts that are not different apply

·         Set up for charitable purposes- something that community have interest in enforcing- 1) relief of poverty; 2) advancement of education; 3) advancement of religion; 4) promotion of health; 5) government or municipal purpose (park, museum, etc.)

·         Unlike private trust where need to show sufficiently large or indefinite, so community not particular person want to enforce (ex 19-70)

·         Motive need to be altruistic, even if charitable purpose (ex 19-71)- trust to give prizes/ awards charitable to achieve valuable things (ex 19-72)- disaster victims (ex 19-73)

·         Description of charitable class- be specific as possible (court generally liberal if broadly described)

·         Charitable purpose determination- no bright line- court make determination of charitable purpose- 1) unselfish motive for other people (not provide simply for friends/ relatives); 2) generally accepted test- would purpose be generally accepted by people in the community- advancement of ideas that many hold, increasing likelihood that deem charitable, if peculiar to settlor, decreasing likelihood that deem to be charitable purpose (ex 19-74)- decreasing likelihood be charitable if used to carry out testator’s whims (ex 19-75), honorary trust under CA allow for 21 years?- religious purpose increase likelihood that charitable (toleration for religious purposes)(standard of is it criminal or against public policy, i.e. human sacrifice)

·         Mortmain statutes- none in CA since 1971- RAP not apply to charitable trusts

·         Trust enforced by state attorney general

·         Tax benefit §16100-§16105 automatic amendment of certain trusts so that achieve favorable tax benefits

·         Cy Pres- also apply to charitable trusts

·         Trust can be mixed- split interest trust- part charitable and part private for tax savings- charitable remainder trust/ charitable lead trust- need meet requirements of both private/ charitable trusts


Trust Administration

·         Accept trusteeship- make clear by sign trust/ separate written agreement that sign §156000(a)(1)- §16000 follow trust instrument/ trust statute for duty in administering trust

·         Presumption §15602(a) that bond waived but need if required in instrument

·         CA not need to register trust w/ court but if involve real property can record where real property is located

·         Possess and safeguard property §16006 take proper steps to keep safe also §16010/ §16009(b) earmark property (mark property as belonging to trust) no confuse trust property w/ trustee own personal property- not comingle property (separate from own property/ property of other trusts)

·         §16238 allow stock to be held in another’s name (nominee form); mutual funds but trust funds can create common trust fund finance code §1564

·         Identify and locate beneficiaries- duty to inform (reasonable means) of trust and administration §16060

·         Follow settlor’s instructions- follow trust terms first (generally control if conflict w/ statute)- §16000 follow statute of instrument silent

·         Act as fiduciary- appropriate standard of care and act loyal/ avoid conflict of interest and self dealing- if mess up then liable

·         Duty to defend trust- §16011 protect against attacks (reasonable standard)


Investment Standard of Care

·         How to invest- originally only extremely safe investments allowedà legal list by statute in which could invest

·         Prudent person standard- level of care and skill ordinary prudent person would use in regards to trust property (safety of investment; earn income; appreciate in value)- not invest in one thing that have all elements (appreciate in value and earn interest)à turn to portfolio that mix attributes

·         Prudent Investor test- look to see what prudent investor would do- look at portfolio as whole, not individual investments and look at all circumstances of trust

·         CA §16045 Uniform Prudent Investor Act- §16047(a) invest and manage like prudent investor and exercise reasonable care/ skill- must consider trust purposes, terms of trust, distribution requirements, and other circumstances of trust- §16047(b) view investment in context and not isolation, view investment as whole- §16047(c) things that able to consider- §16048 requirement to diversify – unless too small, family assets- §16051 determine reasonableness of action at time that made- §16046(b) can expand or reduce investments- §16007 duty to make productive- if special skills bound to exercise §16014(a)- if represent that have special skills then bound by those special skill standards §16014(b)- if have lower skills not able to rely on those lower skills, still held to reasonableness standard

·         Duty to monitor investments (re-evaluate)- take over as new trustee, review past investments- causation requirements that breached duties

·         Can excuse if fall below standard through exculpatory clause- not liable for breach but only exculpate negligent conduct not willful


Trustee Powers

·         Look to trust instrument §16200(a) no court permission necessary to exercise powers- now powers that automatically have unless limited by instrument §16200(b) and list §16220-§16249 powers that have- not have to list in trust instrument, just expand or retract- also implied powers §16002 or court granted powers (or limit powers)

·         Trust instrument not have to be complex, as powers listed that automatically have under statute- powers from CL (implied equitable powers)- court can alter power under instrument/ statute

·         Delegation of powers- choose w/ care- can be too burdensome to do everything that need to do for trust administrationà allow to delegate powers/ duties- CL delegate ministerial duties okay but not discretionary acts (what ministerial/ discretionary?)

·         Move to reasonableness test (CA) §16012à not delegate act that settlor reasonably believe to be performed specifically by trustee- prudent investor act- CL not able to delegate investment decision/ §16502 allow delegate investment/ management decision if prudent under circumstances- reasonableness of delegation of duties if settlor would believe that trustee would do, but allow to delegate investment decision if prudent- review agent’s decision (monitor) on periodic basis (reasonable based on circumstances)

·         Properly delegateà can still be liable for acts of agent, but usually not liable unless trustee at fault §16041, i.e. not reviewing agent’s actions, imprudent delegation of duties, not choose agent w/ care, cover-up, tell agent to do something- similar to negligence standard

·         Not delegate improperly among co-trustees §16013- each co-trustee under duty to participate and to review actions to prevent breaches by other trustee- §16042 when liable for acts of co-trustee


Trust Distribution

·         Property interest in trust- make to correct parties- §16245 whom distribution made (to beneficiaries)- able to distribute even if beneficiary under legal infirmity (have power to do not mean that not liable- still follow fiduciary obligation under circumstances)- able to pay to custodian/ guardian for use/ benefit of beneficiary- allow direct payment to schools, medical expenses for benefit of beneficiary w/o have go through guardian


Duty of Loyalty

·         As fiduciary owe undivided loyalty and utmost good faith to beneficiary- avoid self dealing/ conflict of interest

·         Trustee duty to administer trust solely for benefit of beneficiary §16002(a)- trustee not sell own property to trust/ buy trust property or borrow trust property for personal use- profit go to trust if do- allow to make exchanges between trusts §16002(b), i.e. one need cash and other need investment (saving in transaction cost)à fair and reasonable to beneficiary of both trusts and give beneficiaries notice- §16004 not use/ deal  trust property for own profit/ where adverse interest not enforce claims against trust property §16004(b)

·         Presumption of breach between trustee and beneficiary §16004(c) if do business w/ beneficiary of trust (business unrelated to trust)- exception §16220 retain trust property even if contain property personally interested, i.e. stockholder in corporation

·         Areas where may allow self-dealing, i.e. sell family property to family members- if clause that authorize self-dealing courts construe strictly what will allow, so need make clause specific as possible


Liability of Trustee to 3rd Party

·         Contract- carry out trust business enter into K for the benefit of trust, comply w/ §18000 to avoid liability: 1) proper k for trust benefit; 2) k not state that personally liable; 3) trustee reveal representative capacity or name of trust (identify name of trust)

·         Tort liability- respondeat superior for torts of agents (most states)- §18002 personally liable only if trustee personally at fault

·         Liability as Property Owner- taxes, attractive nuisance, etc.- §18001 only if personally at fault, trustee personally liable- most states have sue trustee first, CA can sue directly against trust property §18004(a)


Allocation of Receipts and Expenses

·         CA portfolio approach, not look at each investment separately to see if meet all requirementsà diversification now- property come in/ go out- who credit/ debit for receipts/ expenses?à 1) look at trust instrument to see if tell what to do; 2) §16300-§16315 Revised Uniform Income and Principal Act- turn to CPA- Income new stuff/ Principal altered form of old property

·         Appreciation to principal (remainder) beneficiary/ rent to income beneficiary/ interest to income beneficiary/ cash dividend to income beneficiary/ stock dividend/ split to remainder beneficiary/ eminent domain property to remainder beneficiary/ insurance proceeds to remainder beneficiary

·         Capital improvements charged to remainder/ ordinary repairs charged to income- business losses split between beneficiaries- capital gains to remainder- depreciation to interest- income taxes to interest

·         Wasting assets- mineral property/ IP- allocation b/c wasting nature or property

·         If statute silent do what reasonable and equitable

·         Unitrust- entitled to fix % of trust each year- not at odds between beneficiaries- both want to grow



·         What in/ format §16063- duty to account so beneficiary know if go wrong- breach §16060 basic duty to account- reasonably informed of trust and administration- §16061 beneficiary upon reasonable request get terms of trust and information about trust activity

·         When trust become irrevocable or trustee change duty to notify beneficiaries or attorney general if charitable §16061.7- §16062 must do once per year/ trustee change/ trust terminates

·         Accounting not required b/c burdensome §16064: 1) revocable trust and settlor alive (revoker still alive)- trustee duty to revoker when revokable, but duty switch to beneficiary once irrevocable; 2) waived in instrument but never total waiver, court can order accounting b/c breach could occur, not waive of person drafting sole trustee, etc.; 3) can undo waiver at any time (beneficiary can waive); 4) beneficiary and trustee same person


Trustee Compensation

·         Look to trust instrument §15680- terms of trust control but court can give more/ less if equitable to do so under the facts- if silent, entitle to reasonable compensation §15681 presumption

·         In determining look to number of factors/ all of circumstances

·         More than 1 trustee apportion among them §15683 (share)- if raise fee, comply w/ §15686 not get dual compensation as trustee/ attorney, unless follow §15687


Trust Modification by Court

·         Do what settlor would have done if had thought about changes to be done

·         Deviation- §15409 beneficiary/ trustee required to agree and discretion w/ court to grant- convince proper to do under circumstance- defeat/ impair purposes of trust that not anticipate by settlor and hurt to follow terms of trust- broadest deviation statute in US- for administrative/ dispositive provisions §15409(a) ex 20-50 restriction that not buy stock- unanticipated changes of circumstances- permission to do something not allowed to do under trust instrument or to not do something required to do- need compelling facts and purposes frustrated if not follow- §15408 uneconomic law principal, court allowed to change trust- if $20k or less trustee can terminate on own- §15411-§15412 substantially similar trysts can be combined/ split as tool for tax purposesà if terminate look to §15410

·         Cy Pres- same principle as for will- alter charitable beneficiary/ purpose to carry out general intent- doctrine of equitable approximation


Trust Modification by Parties

·         Settlor- trusts presumed revocable §15400 (one of few states)- if want irrevocable need to state- allow make changesà beneficiaries, property, etc.- §15401-§15402 follow directions in trust instrument how to revoke, otherwise written instrument signed by settlor and delivered to trustee while still alive- do to make that intent there (want to make change)

·         Trustee- terminate trust under $20k §15408

·         Beneficiaries- §15403 all beneficiaries must consent and receive court approval- §15405 guardian ad litem can consent- court NOT grant termination if spendthrift clause

·         Continuance of trust- material purpose test- material purpose remain not terminate trust §15403(b) can still consent to termination if reason for modification/ termination outweigh material purpose to continue (minority)- may be able to modify, but not terminate if spendthrift clause- tough to get court to terminate- irrevocable trust and get settlor to agree, easier to change under §15404 able to modify any trust


Trust Termination

1.        Express terms of trust §15407 (age, death, material purpose fulfilled, marriage, college, etc.)

2.        Settlor revoke

3.        All beneficiaries consent

4.        All beneficiaries and settlor consent

5.        Purpose fulfilled

6.        Purpose unlawful

7.        Purpose impossible

8.        Merger

9.        Lack of property

10.     Deviation

11.     Uneconomically low principal

12.     Court order

·         Even after termination reasonably necessary powers retain §15407(b) to wind up affairs

·         With remaining property follow terms of trust if revoked §15410, consent of beneficiaries, then as to what agree to if settlor invoke or if not, follow terms


Trust Enforcement

·         Proper court jurisdictionà superior court §17000 of county §17005 inter vivo place of administration/ testamentary place of admin istration or where decedent estate administer- internal affairs §12006 no right to juryà no jury trial



·         Trustee- order to perform duty §16420 get injunction if afraid of breach or afraid not obey injunction get receiver to take property until sort things out- Breach occurà $ damages §16440 loss/ depreciation of value of trust property, profit made by trustee b/c of breach, lost profit that would have made but for breach- exception:  trustee act reasonably and in goodfaith court can excuse from liability if equitable to do so- Removal §15642 trustee become insolvent, unfit (incompetent), breach of trust, other cause (excessive compensation, trustee drafter or closely related to drafter (unless independent evaluation or related to settlor))

·         Trust property- traceable (get back from person that have)- have superior claim than other creditors- protection for bona fide purchaser §18100 protect from trace liability if 1) act in good faith; 2) pay valuable consideration; 3) no knowledge that trustee exceeding trust powers- CL- 3rd party need no knowledge and if knowledge that trustee not bona fide purchaser §18100-§18104- subrogation/ marshalling- creditor of deceased settlor that have revocable trust able to go after trust property- generally probate avoiding- can be reached as last resort, get all $ can get from estate  and deficiency go after property in inter vivo trust §19000-§19402

·         Beneficiary- go after if participate in breach, misappropriate property

·         3rd party- go after unless bona fide purchaser §18100- double damages §16249(b) for wrongful taking of trust property


Barring of Remedies

·         Settlor might have approved in instrument- §16461(a) relieve trustee of liability for breach (exculpatory provision)- certain exceptions: 1) evil breach- act commit w/ intent/ bad faith/ reckless indifference/ gross negligence; 2) trustee made a profit from breach (if instrument authorize self dealingà no breach, so no liability)

·         Revocable trust where trustee follow written instructions of person w/ power to revoke §16462

·         Beneficiary consent- §16463-§16465- be read together- consent before/ after happen- beneficiary consent if not incapacity,  no information about material rights and facts, induce by improper conduct to sign, self-dealing transaction fair and reasonable to beneficiaries

·         Matter revealed in accounting §16460(a)(1)- 3 years to bring claim and act like statute of limitations

·         Statute of limitations §16460(a)(2)- 3 years from discovery/ should have been discovered of breach

·         §16460(b)(3) dealing w/ minors for consent

·         Court decree §16440(b) go to court and beg for forgiveness


Resulting Trust

·         Not govern by terms of express trust under probate code §15003(a)

·         Trust arise under circumstances- based on parties conduct- no express trust created

·         Not have beneficiary- settlor get title back- person making conveyance get property back- exist for benefit of settlor or successors in interest

·         What settlor would have done if had thought about/ what intended

1.        Failure of express trust- attempt to create but fail- no intent that gift to trustee- fail and go back to settlor- start over- some instruments say what happens if trust fail, where property go (follow first)- semi-secret trust (ex 22-2) §15205(b)(2) fit into provision allowing vague description- traditionally example not sufficient description but may be able to fit into- fail for indefiniteness

2.        Failure of express trust to dispose of all property- remainder- go back to settlor- like implied reversionary interest

3.        Purchase money resulting trust- PMRT- title of property go to 3rd party from seller (not pass through buyer)- 1) gift to someone (presumption if spouses/ parent-child)= trigger presumption of gift; 2) debtor/ creditor relationshipà loan/ debt- make payments to creditor?- evidence of debtor/ creditor relationship; 3) PMRT- why pay money and put title in name of another w/o close relationship- intend to have interest in property- hold property for benefit of buyer (presumption and can be rebutted)- recognize in CA, but not much authority regarding


Constructive Trust

·         Not trust in any way but equitable remedy- no intent to create trust- prevent unjust enrichment

·         Have all title (acquire in unconscionable way)- convey legal title to those w/ beneficial title- only have legal title and give equitable title to another

·         Need connection between property and evil conduct

·         Even innocent heirs lose interest b/c but for evil conduct not get anything

1.        Remedy for fraud

2.        Breach/ abuse of confidential relationship

3.        Breach of promise made in contemplation of death- secret trust- appear gift in outright but make secret promise in contemplation of person’s death