INTESTANCY

 

Intestancy

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

 

Introduction

·         What happen to person when die?- historically  1^st 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

 

Terminology

·         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

 

Descendants

·         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 (1^st 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 1^st 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 1^st generation w/ survivors- majority

·        per capita at each generation- split at 1^st 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))

 

Advancement

·         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)

 

Survival

·         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

 

Disclaimers

·         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

 

WILLS

 

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)

Formalities

·         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)

 

Attestation

·         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