Wills And Trusts Outline

Created for Professor Gerry Beyer’s Wills, Trusts, and Estates class, Fall 1999

Santa Clara University School of Law

I.. Intestate Succession

A.. Surviving Spouse

Types of law:

1.. common law

a.. distinction was made between real and personal property

i.. real property - spouse was not an heir and could not take by intestacy because spouse was not a blood relative

ii.. personal property - husband took all personal property as soon as marriage occurred; if husband died first, the wife could inherit some of the property

2.. modern law

a.. surviving spouse is made and heir and can now take by intestacy

b.. states have protections for surviving spouse

i.. statutes that prevent spouse from being cutout of the will

ii.. homestead right - right to occupy home for a particular period of time

3.. marital law

a.. common law used in most states - no marital property

b.. community property (CA system) - when property is acquired

through marriage it is split fifty/fifty

CA Law

1.. type of property makes a big difference in distribution

a.. community property - property acquired during marriage while domiciled in CA or another community property jurisdiction

i.. CA - surviving spouse keeps half of property and inherits deceased spouses property; same as saying spouse gets all community property

ii.. quasi community property - property acquired during marriage that would have been community property has they been domiciled in CA

a) applies to personal property where ever located, as well as real property located in CA

b) restoration of community property - surviving spouse can force a person to return property if it was fraudulently transferred before the spouse died; four requirements for restoration

1) deceased spouse must be domiciled in CA at time of death

2) deceased spouse did not receive consideration for substantial value for transfer

3) surviving spouse did not consent or join in writing

4) deceased spouse still had some benefit of property

iii.. separate property - property owned before marriage; property acquired during marriage by gratuitous transfer (EX: inter vivos gift, inheritance); profits and income from separate property even if earned during marriage

a) surviving spouses’ share depends on family situation:

1).. surviving spouse gets all - if no issue, no surviving parent, and no surviving descendants of parents

2).. surviving spouse gets half - if deceased spouse had one surviving spouse or children of deceased child (???), or the deceased spouse did not have any descendants but did have at least one parent surviving or a niece or nephew

3).. surviving spouse gets one third - where there are two or more bloodlines of descendants surviving (would have had to have had at least two children at some point in time)

2.. surviving spouse can waive all inheritance

a.. must be in writing and signed by the surviving spouse

b.. see Section 140 - 147 for more information

B.. Descendants

1.. general rules

a.. if no surviving spouse, descendants take everything

b.. if there is a surviving spouse descendants take everything the surviving

spouse does not take

c.. CA prefers parents to siblings, grandparents to aunts and uncles, and cousins

2.. ways to divide property

a.. per stirpes (by the roots, or by right of representation) - divide into shares based on the number of living children and deceased children

i.. does not matter that no one in that generation did not survive

ii.. create a share with every living descendant and every deceased

descendant with surviving descendants

b.. per capita with representation - divide into shares at first generation with a surviving member

i.. this attempts to treat equally related people equally

c.. per capita at each generation (this is the UPC approach and CA approach) - divide everything at the first generation and then keep dividing the further generation’s shares

i.. divide at first generation with survivors

ii.. if unmarried and no kids - goes half to each parent, or all to one parent

if other parent is dead (CA)

iii.. if no parents living - divide equally between all living grandparents

iv.. great-grandparents and their descendants take next

v.. if no one at all - property to deceased spouse’s parents

C.. Ancestors and Collaterals

D.. Escheat - goes to state if no one is left to take

E. Posthumous Heirs - a child conceived while person alive, but born after death

1.. many states will not allow posthumous heirs to inherit

2.. CA allows ALL posthumous heirs to inherit

F.. Adopted Individuals

1.. how adopted child inherits from adopted parents:

a.. just like a biological child

b.. inherits from a through the adoptive parents

c.. would inherit from grandparents and others just like a biological child

2.. how adopted child inherits from biological family:

a.. states vary

b.. CA view:

i.. presumption that the adopted child does NOT inherit from or through biological parents

ii. EXCEPTION: if child and biological parent live together as parent and child; OR either adopted by stepparent or the death of the natural parent after the death of a biological parent (???)

3.. who would inherit from adopted child, if child had no spouse or descendants:

a.. generally adopted parents and family inherit from and through the adopted child, just as if the child were biological

b.. states vary on inheritance rights of biological parents:

i.. CA is middle of the road approach

a).. presumption that biological parents do not inherit from or through biological parents

b).. EXCEPTIONS: full blooded siblings will only inherit if the adopted child could have inherited from the biological parents; if the child could inherit from the biological parent, and the adoption is by the spouse or the surviving spouse then the biological parents can inherit from the child

4.. types of adoptions

a.. statutory adoption (formal, legal adoption)

b.. adoption by estoppel (equitable adoption)

i.. child lived with family, but was never officially adopted

ii.. shares in the state as a child would, but is not an officially an

adopted child

c.. adult adoption

i.. in CA can only have an adoption of a younger person by an older person

G.. Non-marital Children (wedlock)

1.. generally

a.. up until 1977 could not inherit from anyone

b.. in Trimble v. Gordon the USSC said there cannot by differences in inheritance based on marital status

c.. the next year, 1978, the USSC narrowed this, said it is okay to discriminate in some circumstances

2.. CA law

a.. no discrimination in regard to Mother; just need proof that the mother gave birth to the child

b.. father is treated differently; there are situation in which paternity is presumed

i.. born during marriage or an attempted marriage or 300 days thereafter

ii.. the father marries the mother after child is born, and the father is

named as father on birth certificate, or the father pays child support

iii.. the father receives the child into his home and holds the child out as his biological child

iv. child can try to show natural parantege also by

a).. through court of paternity

b).. have a court judgment after father’s death (need clear and convincing evidence that the father openly held the child out as his own)

H.. Children from Alternate Reproduction

1.. artificial insemination

a.. mother is the birth mother

b.. some question as to the father: if the donor is also the husband, then donor

is the father, but if not, the donor is not the father

c.. the woman who intended to procreate the child is the one who becomes the mother

I.. Stepchildren and Foster Children

1.. stepchild - child of spouse that you have not adopted and is not yours

2.. foster child - parent is unrelated to parentlike figures, but child was put there

by a government agency

a.. most states say foster children do not have right to inherit

b.. CA view; three ways that a step child might be able to inherit

i.. to be determined to be a real child - then step or foster child will be

treated just like biological child

ii.. continued during joint lifetimes

iii.. equitably adopted child

J.. Half-blooded Collateral Heirs

1.. Scottish rule - half bloods take half as much (majority view)

2.. half-bloods do not take at all, unless there are no whole bloods to take

(minority)

3.. modern view - half or whole blood does not matter

K.. Non-United States Citizens

1.. common law - could not inherit from non-citizens; also real property could not be passed to aliens

2.. United States - usually no restrictions

a.. anyone can take regardless of citizenship

b.. no person is disqualified to take as an heir because that person or a person

through whom he or she claims is or has been an alien

L.. Unworthy Heirs

1.. forfeiture - if convicted of certain crimes, the state can take your property

2.. civil death

a.. treated as civilly dead in situations; smaller than forfeiture

b.. property would go to heirs

3.. murder of person that you would inherit from

a.. policy - do not want people to benefit from evil conduct

b.. CA has two part test to trigger statute

i.. felonious killing

ii.. intentional killing

4.. if statute is triggered then killer is deemed dead for purposes of inheritance

a.. unclear as to where the property goes

b.. do not know if killer is treated as merely being dead, or treated dead

without any descendants (unresolved in CA)

c.. there must be proof of the felonious killing; can be proved several ways

i.. gets charged and goes to jail

ii.. killer is convicted

iii.. preponderance of the evidence shows that the murder was felonious

and intentional (can be guilty even if not convicted in criminal court: OJ)

d.. types of crimes

i.. voluntary manslaughter - felony and intentional; killer may not inherit

ii.. involuntary manslaughter - no intent to kill; killer may inherit

iii.. insanity - no intent; killer may inherit

iv.. self defense - intentional, but non-felonious; killer may inherit

e.. suicide - does not effect who inherits (at common law property went to

state; common law user to call this “persons who destroy their lives”)

f.. failure to support and acknowledge wedlock child

i.. biological parent cannot inherit unless the parent acknowledges and

cares for the child

ii.. modern trend imposes this requirement on all parents in order to inherit

from their children

g.. commit adultery or abandon spouse - CA does not mind; can still inherit

h.. abusing elder or dependant adult

i.. cannot inherit if convicted of a crime related to abuse; OR

ii.. cannot inherit if person meets the following four elements:

a).. heir abused intestate (by clear and convincing evidence of abuse;

can also be financial abuse)

b).. can show heir acted in bad faith

c).. reckless, oppressive, fraudulent, or malicious

d).. after abuse, person did not recover

M.. Ancestral Property

1.. history

a.. developed from common law policy of keeping real property in the blood line of the original owner

b.. applies if an individual inherited real property and then died intestate without surviving descendants or first line collateral relatives

c.. has never been applied to personal property

d.. almost all states have rejected this doctrine

e.. under modern law the intestate decedent is treated as the original purchaser of all property the intestate owns at time of death

2.. CA law - where property goes that you acquired from a predeceased spouse when you die (§ 6402.5)

a.. must die with no descendants and no new spouse; other wise this statute does not apply

b.. applies to all property you acquired from the predeceased spouse

c.. real property - go back 15 years (if predeceased died within 15 years of

your death)

d.. personal property - go back 5 years (if predeceased died within 5 years of your death)

e.. only applies if in total there is $10,000 or more remaining

3.. intestate distribution scheme (CHECK THIS ??? APPLIES HOW?)

a.. property goes to the descendants of the predeceased spouse (stepchildren)

b.. no stepchildren the property goes to parents of the predeceased spouse

c.. if no parents. Then descendants of predeceased spouse (brother in law, etc)

d.. descendant’s next of kin are next; in none, then look to more distant

relatives of the predeceased spouse

N.. Advancements - prepayment of inheritance while the intestate was still alive

1.. common law

a.. intended as early inheritance, then advancee would have to make an accounting of the money received

b.. must account for money received before person died

c.. this accounting process is called “going into hotchpotch”

2.. modern law

a.. most states, including CA, have reverse presumption: presumption is that the “advancement” is an absolute gift; everything we receive is a gift and not intended to be an advancement

b.. an advancement is an irrevocable gift; does not create a debt or a condition precedent to sharing in the estate

c.. gift is valued at date of the gift

3.. CA requirements for a gift to be an advancement

a.. must be in writing

b.. contemporaneous writing by advancer (person giving the gift; because

don’t want person to change mind)

c.. writing is also signed by advancee; can be introduced at any time

d.. advancement applies to all, not just descendants (like some states); also

people like brothers and sisters

e.. applies to all types of intestacy (all or partial intestacy)

O.. Survival

1.. CA rules

a.. must have survived at least 120 hours after the decedent died in order to take under his will

b.. must be able to show by clear and convincing evidence that the person survived

c.. talked about Kennedy airplane crash as an example

P.. Disclaimers - reasons a person might not want to inherit property

1.. if taxes exceed value of property

2.. environmental risk

3.. moral or religious reasons (don’t want to benefit from death of deceased)

4.. can avoid taxes by disclaiming the property (parents can disclaim and have the property pass directly to children; usually only worth it if $600,000 or more)

5.. CA disclaimer rules

a.. disclaimer must be in writing and signed by disclaimant

b.. must identify in document what items are being disclaimed

c.. disclaimer must be filed

i.. must be filed with a reasonable time after you discover you are going to inherit (under Federal law, must disclaim within 9 months of death

ii.. if disclaimed within 9 months it is presumed to be timely. A reasonable time can never be shorter than 9 months ***

iii.. must be filed with the Superior Court or with the administrator of the estate, or anyone else having legal title or interest

d.. one property is disclaimed, can’t revoke

6.. if property is disclaimed it is as if you predeceased the intestate; a disclaimer is not an assignment (disclaimant can not determine where the property goes)

7.. can disclaim property coming under a will just like you can under intestacy

Q.. Assignment or Release of Expectancy

1.. people do not have a right to inherit

2.. the expectancy to inherit from someone who is alive does not create a property

right

3.. although you cannot assign the expectancy you can make a contract

a.. contract to give someone whatever you inherit

b.. can also make a binding contract to sell your expectancy, but cannot

actually transfer it

c.. risk is very high; extremely speculative

R.. Equitable Conversion

1.. occurs in situations when real is treated as personal or personal treated as real property

2.. heirs of real and personal property in CA are the same; equitable conversion is not an issue here (not like this in all states)

S.. Liability for Predeceased Intermediary’s Debts

1.. situation: intestate that was creditor; child was debtor - child dies insolvent

2.. the child of insolvent does not get a smaller share because the debt was unpaid;

shares of debtor’s issue are not made smaller to compensate for debt; inheritance goes directly to heir of intestate - not through estate of pre deceased intermediary

T.. Heir Designation

1.. in OH and AK you can name anyone you want as an heir

2.. CA does not have this

3.. this solves problems for non-maritals who want to share property

U.. Choice of Law

1.. personal property - jurisdiction is domicile of decedent at time of death; can be domiciled somewhere other than where you are located at time of death

2.. real property - situs (state where real property is located)

II.. Wills - transfers nothing, creates only an expectancy; can give away separate property, half community, half of quasi community; a will is a document that transfers property that takes affect at death (unlike a deed with takes affect when executed); can leave property to anyone legally entitled to hold title to property

A.. Elements for a valid will

1.. Legal Capacity - the legal status necessary to execute a will; in CA:

a.. have to be at least 18; OR

b.. a conservator may make a will with the consent of the court

i.. people not of sound mind can have a conservator

ii.. minors can have a conservator

(a).. CA does not have a probate statute that allows a married minor to have a will; however it is allowed under the Family Code

2.. Testamentary Capacity - have a sound mind

a.. understand nature of testamentary act (understand that a will controls what happens to their property when they die; do not need to know it is called a will)

b.. understand and recollect the nature of their property

c.. understand and know who will get their property

d.. age does not matter

e.. testamentary capacity is easier to get than contractual capacity because there is only one person involved (testator)

3.. Testamentary Intent - testator intended for the actual document being signed to be a will

a.. typical cases that arise:

i.. letter cases - person writes a letter to attorney or child saying what they want to do with their property; letters are not wills - usually just letter of instruction

ii.. sham will cases - wrote a will for a hazing event for a fraternity

iii.. specimen will - just a rough draft of a will

b.. must keep in mind intent when considering whether the above examples would qualify as wills

4.. Formalities

a.. Generally

i.. four basic policies

(a).. ritual / cautionary function - demonstrate that the testator was

serious about making a will; not just an idle thought; testator was serious and deliberate

(b).. evidentiary function - create evidence of testator’s intent; helps show what actually happened and reduces chance of forgery; generates evidence

(c).. protective function - by requiring all the technicalities it makes it harder for a will to exist that the testator did not really want

(d).. channeling function - confidence that a testator gets after going through the ceremony; gives the testator greater assurance that his desires will be carried out

ii.. there has been a trend over tine for loosening the formalities

iii.. CA is in the middle in regard as to the range or formalities required

iv....Types of wills

(a).. attested will - will that has witnesses

(b).. holographic will - a will in the testator’s own handwriting

(c).. cupative will - oral will

(d).. statutory will - form of the will is contained in state statute

(e).. soldiers’ and seamen’s wills - CHECK

b.. Formalities for attested will (in writing, signed, witnessed)

i.. will must be in writing (therefore CA does recognize cupative wills

(a).. language the will is in is irrelevant as long as it can be accurately

translated

(b).. recommended to use standard paper, permanent ink, English

ii.. will must be signed

(a).. ways to satisfy this requirement:

(i).. testator - signature need not be a fill name; just something made with the present intent to indicate a writing (although

recommended to use person’s full name)

1). Requirements for use of a mark in CA -

a).. testator must not be able to write his name

b).. testator’s name must be written near the mark by a

witness (witness writes the name of the person that cannot write and their own name)

c).. most states do not have this requirement; harder to use

a mark in CA

(ii).. proxy - someone else signs signature for you (want people that could not write to be able to make a will

1).. requirements for a proxy in CA -

a).. must be made in testator’s presence and with their direction

b).. no requirement that the testator be unable to write (unlike the mark requirement)

(iii).. conservatorship - can get court permission to make a will for a person that lacks capacity

1).. requirements for conservatorship in CA -

a).. no requirement where signature has to be

b).. many states require that the signature be at the end of

the page (this is recommended for CA and that the testator and witnesses should initial every page)

iii.. will must be witnessed; requirements:

(a).. at least two witness are required

(b).. in CA minimum age of witnesses is not specified but

recommended that they be 18 years or older

(c).. witnesses must be able to testify before a court

(i).. must know significance of oath to tell the truth and know the difference between the truth and a lie

(ii).. witnesses must know they are witnessing a will

1).. this is known as publication

2).. this formality is rare in the USA, but CA has retained it

3).. witnesses do not need to know the contents of a will

4).. testator or attorney should say “this is a will”

(d).. order in which people sign is important; three ways/views:

(i).. strict/English view - witness must sign after the testator

(makes more sense is the logic; causes problems because some attorneys are not careful about order in which the will is signed)

(ii) American view/continuous transaction view - as long as

signatures are affixed to the will at the same time, as part of a continuous transaction, the will is valid

(iii).. modified continuous transaction view - testator acknowledges the will

1).. witness witnessed testator signing will

2).. witness acknowledged testator’s signature

3).. testator said “this is my will” means that testator can sign

first

(e). CA practice -

(i).. testator does not have to sign in the presence of witnesses

(ii).. testator can say either “this is my will” or “this is my

signature”

(iii).. witnesses do not have to sign in testator’s presence (unlike

most other states)

(iv).. witnesses do not have to sign in each other’s presence

(CHECK)

(v).. in CA have to have both witnesses together when the sign will

(f).. if witness is also a beneficiary - jurisdictions vary widely

(i).. will is void say some

(ii).. modern approach is that it is totally irrelevant

(iii).. CA approach is somewhat in the middle

1).. have not adopted view that will is invalid

2).. presumption in the statute is that if you were a beneficiary

of a will and a witness, you are evil (fraud, duress, menacing, undue evil)

3).. if you can rebut the presumption then you can take the full gift under the will

4).. if you cannot rebut the presumption the general rules is that your get nothing; if your gift fails there are several ways in which you can get around this

a).. if under intestacy or a prior will you would have received property anyway you will receive the smaller share or the amount you would have received (policy is that there is no motive to lie this way)

b).. show that there are other witnesses (testimony of other witnesses can be used to support the will)

(g).. qualifications for being a witness

(i).. anyone can do it; best qualification is that person was there

(ii).. in normal case it is fine that the witness does not know the

testator

(iii).. general characteristics of good witnesses:

1).. over 18 years old

2).. disinterested and not a beneficiary

3).. young and healthy

4).. will be able to locate the witness in the future

5).. presentable as a witness in court

6).. witness sign self proving affidavit (if no contest, then

witness will not need to be produced for probate)

a).. in CA do not need to have a notary to have an affidavit

b).. if will is contested then the self proving affidavit is not

any good

c).. in probate there must be witnesses; in order to avoid

bringing witnesses will must not be contested and there are self proving affidavits

iv.. will execution ceremony

(a).. good idea to have formal ceremony (good effect on client; good

PR; more likely to do all steps correctly; client’s intent will be carried out)

c.. Formalities for holographic will - prepared in testator’s handwriting

i.. exempt from witnessing requirement

ii.. variety of approaches to determine whether or not an instrument is

holographic

(a).. intent approach - if testator intended for any of the non

holographic material to be part of the will, the will is no longer holographic

(b).. surplus approach - if we can ignore the non-holographic material

and if the will still disposes of the property in the same way, then it can be treated as holographic

(c).. material provisions approach (UPC, modern view, CA approach) -

the will will be deemed holographic if the material provisions are in the testator’s handwriting (material provisions: names of the beneficiaries, property; store bought forms pass this view)

iii.. effect of a holographic will on a prior will is uncertain

(a).. if the holographic will is undated, the statute presume that the

holographic will is old and that the other will is newer

(b).. if there are two holographic wills that are undated the courts will

normally only give affect to the consistent provisions

iv.. when to use a holographic will

(a).. emergencies

(b).. for extreme privacy

c).. as an interim will (operates as a temporary will until a formal will

can be prepared)

d.. Formalities for a cupative will

i.. CA does not recognize cupative wills (some jurisdictions still do)

e.. Formalities for statutory will

i.. only authorized in 4 states (Maine, Michigan, CA, Wisconsin)

ii. see § 6240; enacted around 1985

B.. Classification of Testamentary Gifts (5 basic categories)

1.. specific gifts - property that can be identified precisely at the date of execution; property is clearly measurable at the time the will was made

2.. general gift - transfer from general assets that does not leave specific property

a.. two basic types of property that are subject of general gifts:

i.. money - I leave $20,000 to X. This is called a general pecuniary gift; fixed dollar amount gift

ii.. securities - I leave 100 shares of E-Bay stock to X (is general because

it was not identified precisely - if it had stock certificate numbers it would be specific)

3.. specific gifts of a general nature - the property is insufficiently described to be ascertainable as of date of will execution; instead the property is measured at the time of death

a.. I leave my car to ___ (do not know what type of car until testator dies)

4.. demonstrative gift - I leave $10,000 from the sock under my bed to X

(indicates the source from where the money is to come from)

5.. residual gift - I leave the remainder of my estate to X

C.. Ademption - refers to the failure of a specific gift because the property is no in the testator’s estate when the testator dies

1.. By Extinction - when the property is no longer in the estate; relevant only for specific gifts

a.. common view is to look to the intent view - look to the intent of the testator

b.. most jurisdictions abandon a very strict view - if the property is not

in the estate when the testator dies, the gift adeems and the beneficiary gets nothing

b.. CA view (minority) - has abandoned the ademption view, but does not go as far as some states with the intent view; many states allow tracing and may even permit the beneficiary to receive the value of the missing property; can also get proceeds that are left over (such as insurance from a burned down house that was left to you 21113)

2.. By Satisfaction - failure of a testamentary gift because the testator has already transferred the property to the beneficiary between the time of will execution and time of death (like an advancement)

a.. CA requires a satisfaction be proven in writing; three ways this can be done

i.. will provides for satisfaction

ii.. contemporaneous writing by the testator

iii.. writing by the beneficiary that says the gift was made in

satisfaction

3.. How to avoid exemption

a.. each specific gift should contain an express statement of the testator’s intent should the gifted property not be in the estate when the testator dies

b.. should either provide a substitute gift or state that the beneficiary receives nothing if the exact item is not part of the estate

G.. Changes in Value

1.. if the gift has changed in value, the beneficiary of a specific gift bears the burden of depreciation and the benefit of appreciation

a.. changes in monetary value - inflation or depreciation does not matter

b.. CA - a pecuniary gift (fixed dollar amount gift) starts earning interest one year after death if it is not distributed

2.. change in value of corporate securities

a.. form - if the change is only in form the beneficiary has a good chance of taking

i.. cash dividend

b.. substance - if the change is one of substance, the beneficiary usually will not benefit from the newly acquired securities

i.. stock splits and stock dividends

H.. Exoneration - refers to paying off debts on specifically given property before beneficiary receives the property; only relevant for specific gifts

1.. benefits the beneficiary; a beneficiary of a residual clause won’t like this because there will be less left over after the debt is paid off

2.. presumptions - states either presume exoneration or don’t

a.. if not there is no presumption of exoneration, then the beneficiary gets the gift with the debt (such as a house with an outstanding mortgage)

b.. CA view - beneficiary takes WITHOUT exoneration

i.. can provide in the will for exoneration though; needs to be something other than a general directive (be very specific); applies to specific gifts only

I.. Abatement - the reduction or elimination of a testamentary gift to pay an obligation of the estate or a testamentary gift of a higher priority

1.. abatement order

a.. first follow direction of the will

b.. if no directions, examine the will to come up with a plan or purpose

c.. last result is statutory order of abatement:

i.. property passing via intestate succession (property not provided for in will)

ii.. residuary gifts

iii.. general gifts to persons other than testator’s relatives

iv.. specific gifts to non-relatives

J.. Tax Apportionment - prevents the residual gift from bearing the entire estate tax burden in addition to all of the other claims against the estate

1.. only applies to estate taxes (federal or state)

2.. jurisdictions are divided between those that presume apportionment and those

that do not

a.. modern view - apportionment presumed (all beneficiaries pay their fair share of the taxes)

b.. CA view - apportionment presumed

K.. Marriage of Testator - this affects wills prior to marriage

1.. spouse is likely to be entitled to some benefits regardless of what the will says

2.. first spouse to die can only give away all separate property, half of the

community property, half of the quasi community property

3.. effect of marriage on will written before marriage:

a.. surviving spouse gets all the community property (the half owned by the first spouse to die)

b.. surviving spouse also gets all the quasi community property

c.. surviving spouse can either get one half or one third of the separate

property

d.. exceptions: if the person wrote that a surviving spouse would not get anything; non-probate transfers (life insurance); pre-nuptial agreement

L.. Divorce of Testator - effects on a will

1.. once divorced the ex-spouse will not take anything

2.. property then passes as if the ex-spouse had predeceased

3.. should put in will that if there is a filing for divorce the ex-spouse will not take

M.. Pretermitted Heirs - a child that is left out of a will; to protect a child from and accidental or inadvertent disinheritance, state legislators have enacted statutes which may provide for a forced share of the parent’s estate

1.. under most states there is no obligation to provide for your children in your will

a.. a disinherited child is not an omitted child

b.. omitted grandchildren do not fall within the statute

2.. ways a pretermitted heir can occur:

a.. child born or adopted after will execution

b.. child is actually alive, but testator though the child was dead

c.. child is alive but testator did not know child was born

3.. where to get the pretermitted heir’s share:

a.. first look to intestate property

b.. next take proportionally from all beneficiaries (do NOT use the abatement

order)

c.. court has the power to satisfy the share in a different way if it is necessary to satisfy the testator’s intent; pretermitted child usually will take as if the estate had passed by intestacy

4.. exceptions - situations where the omitted child will not get a share (only apply to the omitted child who was born or adopted after will execution)

a.. intentionally left out and the intention is demonstrated in the will

b.. testator’s will actually provides for the pretermitted child (such as by the

inclusion of a class gift to children)

c.. testator provided for the pretermitted child by way of a non-probate transfer

d.. testator’s will demonstrates an intent for pretermitted children not to share in the testator’s estate

e.. testator’s entire estate is left to the pretermitted child’s other parent