Subject outline

Wills and Succession / Estate

10 core rule statements and a 460-line detailed rule bank, organized the way the California Bar tests them.

• Attested Will

  An attested will requires a writing, testator’s signature, and proper witnessing.

  Elements / Factors

  1. 1Writing.
  2. 2Testator signs, directs another to sign in testator’s presence, or acknowledges signature.
  3. 3At least two witnesses present at the same time witness signing or acknowledgment.
  4. 4Witnesses sign during testator’s lifetime understanding the instrument is the will.

  Exceptions / Limitations

  • •Interested witness does not necessarily invalidate will but may trigger a presumption concerning the gift.
  • •Harmless-error doctrines vary.

  California distinction

  • California Probate Code section 6110 permits probate despite defective witnessing if clear and convincing evidence shows the testator intended the document to constitute a will.

• Holographic Will

  A holographic will is valid when material provisions and signature are in the testator’s handwriting.

  Elements / Factors

  1. 1Writing.
  2. 2Signature by testator.
  3. 3Material provisions in testator’s handwriting.
  4. 4Testamentary intent.

  Exceptions / Limitations

  • •No witnesses are required. Printed portions may be considered to determine testamentary intent without invalidating handwritten material.

  California distinction

  • California Probate Code section 6111 recognizes holographic wills and permits intent evidence from the document and extrinsic circumstances.

• Testamentary Capacity

  A testator must understand the testamentary act, nature and situation of property, and natural objects of bounty, and must be able to relate these in forming a plan.

  Elements / Factors

  1. 1Age/statutory eligibility.
  2. 2Understand making a will.
  3. 3Know generally the nature and extent of property.
  4. 4Know spouse, descendants, and other natural objects.
  5. 5Ability to connect these matters into a rational plan.

  Exceptions / Limitations

  • •Lucid interval can establish capacity.
  • •Capacity threshold is lower than contractual capacity.
  • •Insane delusion invalidates only affected provisions.

  California distinction

  • California Probate Code section 6100.5 states capacity and delusion standards.

• Undue Influence

  A donative transfer is invalid to the extent produced by undue influence overcoming the transferor’s free will.

  Elements / Factors

  1. 1Susceptibility or vulnerability.
  2. 2Influencer’s apparent authority or relationship.
  3. 3Actions or tactics exerting pressure.
  4. 4Inequitable result and causation.

  Exceptions / Limitations

  • •A presumption may arise from confidential relationship, active procurement, and undue benefit, shifting burden.
  • •Fraud, duress, and mistake are distinct theories.

  California distinction

  • California Probate Code section
  • incorporates the Welfare and Institutions Code undue-influence definition; statutory presumptions apply to certain donative transfers to prohibited transferees.

• Revocation

  A will may be revoked by a later testamentary instrument or a physical act performed with intent to revoke.

  Elements / Factors

  1. 1Subsequent will or codicil expressly or impliedly revoking; or
  2. 2Burning, tearing, canceling, obliterating, or destroying by testator or at testator’s direction and presence; and
  3. 3Concurrent intent to revoke.

  Exceptions / Limitations

  • •Dependent relative revocation may disregard revocation based on mistaken assumption if it better carries out intent.
  • •Revival of an earlier will depends on governing law and intent.

  California distinction

  • California uses statutory revocation and revival rules; dissolution or annulment generally revokes provisions benefiting a former spouse unless contrary intent appears.

• Lapse and Anti-Lapse

  A devise lapses when beneficiary predeceases testator unless survivorship language, substitute disposition, class-gift doctrine, or anti-lapse statute applies.

  Elements / Factors

  1. 1Beneficiary failed to survive.
  2. 2No governing substitute gift.
  3. 3Determine relationship protected by anti-lapse statute.
  4. 4Protected beneficiary left qualifying descendants.
  5. 5No contrary intent.

  Exceptions / Limitations

  • •Words requiring survival may defeat anti-lapse depending on construction.
  • •Class gifts may pass to surviving members or protected descendants.

  California distinction

  • California anti-lapse generally protects a kindred beneficiary of the testator or testator’s current/former spouse who leaves issue, unless the instrument shows contrary intent.

• Ademption

  A specific gift is adeemed when the specifically devised property is not in the estate at death, subject to statutory substitutes and intent doctrines.

  Elements / Factors

  1. 1Specific devise.
  2. 2Property absent at death.
  3. 3No statutory replacement, unpaid proceeds, replacement property, or conservatorship exception.

  Exceptions / Limitations

  • •General and demonstrative gifts ordinarily are not adeemed by absence of a particular asset.
  • •Beneficiary may receive unpaid sale proceeds, insurance, condemnation awards, or substitute property under statute.

  California distinction

  • California applies statutory ademption protections and gives weight to testator intent in specified circumstances.

• Abatement

  When estate assets are insufficient, gifts are reduced in statutory priority while seeking to preserve the testator’s plan.

  Elements / Factors

  1. 1Determine claims, expenses, and available estate.
  2. 2Classify gifts.
  3. 3Apply statutory abatement order.
  4. 4Apportion within class and consider contrary plan.

  Exceptions / Limitations

  • •Secured obligations and exoneration rules affect net devise.
  • •A contrary intent in the instrument can alter default order.

  California distinction

  • California’s default order generally begins with intestate property, then residuary gifts, general gifts, and specific gifts, subject to statutory detail.

• Intestate Succession

  Property not effectively disposed of by will passes under intestacy to surviving spouse and descendants or next statutory heirs.

  Elements / Factors

  1. 1Identify community, quasi-community, and separate property.
  2. 2Determine surviving spouse rights.
  3. 3Determine descendants by representation.
  4. 4If none, move through parents, siblings and descendants, grandparents and descendants, and statutory next takers.

  Exceptions / Limitations

  • •Advancement requires qualifying contemporaneous writing.
  • •Disclaimers, homicide, elder-abuse disqualification, and survival rules may alter heirs.

  California distinction

  • California uses statutory per-capita-at-each-generation style distribution under Probate Code section 240 and provides special spouse shares based on number of descendant lines.

• Pretermitted Spouse or Child

  An omitted spouse or child may receive a statutory share when omission resulted from marriage or birth/adoption after execution, unless an exception shows intentional omission or substitute provision.

  Elements / Factors

  1. 1Qualifying relationship arose after will.
  2. 2Omission from testamentary instruments.
  3. 3No intentional-omission language, transfer in lieu, waiver, or other statutory exception.
  4. 4Calculate share and abatement.

  Exceptions / Limitations

  • •Child believed dead or unknown may have separate protection.
  • •Republication by codicil can affect timing.

  California distinction

  • California Probate Code sections 21610 et seq. govern omitted spouses and children.