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California Wills & Decedents' Estates CALIFORNIA WILLS & DECEDENTS’ ESTATES PROFESSOR ZACHARY KRAMER ARIZONA STATE UNIVERSITY SANDRA DAY O'CONNOR COLLEGE OF LAW CHAPTER 1: TERMINOLOGY; INTESTATE SUCCESSION—SPOUSES A. Key Terminology • Decedent—someone who has ___________________________________ • Will—a legal document used to dispose of the decedent’s property • Testate—the decedent dies ___________________________________ a will • Intestate—the decedent dies ___________________________________ a will Exam Tip 1: Note that a decedent can die testate as to some property and intestate as to other property if some of the decedent’s probate property is not covered by a will. • Codicil—a ___________________________________ that amends or revokes a decedent’s will in whole or in part • Probate—judicial process for administering and settling the decedent’s estate • Intestate Succession—___________________________________ estate plan developed by the legislature when the decedent dies intestate • Heirs—individuals entitled to receive property by intestate succession o ___________________________________ people do not have heirs. • Spouse—decedent’s ___________________________________ partner o Surviving spouse—outlives the decedent o Legal marriage or registered domestic partner • Issue/Descendants—decedent’s ___________________________________ line (kids, grandkids, great-grandkids, etc.) • Ancestors—decedent’s ___________________________________ line (parents, grandparents, etc.) • Collaterals—relatives through an ancestor (siblings, cousins, aunts, uncles, etc.) • Community/Separate Property—classify property as either community or separate property o Always watch for classification moments B. Intestacy • When a decedent dies without a will, the decedent’s estate is distributed by intestate succession. o Default estate plan developed by the legislature • Decedent’s actual intent is ___________________________________ • Individuals entitled to take an intestate share are called the decedent’s ___________________________________. o The two primary heirs are the decedent’s: . ___________________________________, and . ___________________________________. • An heir must survive the decedent. o Special Case 1: Kids’ kids . Children of a parent can stand in the parent’s place for purposes of intestate succession . We call this ___________________________________. o Special Case 2: Simultaneous Death . How to determine whether an heir survives the decedent . Common Law Rule: an heir’s survival must be proved by a ___________________________________ of the evidence. Uniform Simultaneous Death Act (USDA): when there is insufficient evidence of who died first, the property will pass as though each had ___________________________________ the other. • An heir must be proven by clear and convincing evidence to have survived the decedent by ___________________________________. • In California, the 120-hour rule only applies to intestacy, not wills. C. Share of the Surviving Spouse 1. Who qualifies as a spouse? o A legally-___________________________________ partner, or o A ___________________________________ partner o This excludes unmarried ___________________________________. 2. Calculating the surviving spouse’s share a. Classify property . Distinguish between ___________________________________ and ___________________________________ property b. Community property . Includes quasi-community property • Property acquired by a marital couple while living ___________________________________ that would have been community if acquired in ___________________________________ 2 | © 2020 Themis Bar Review, LLC | CA Wills . Under intestacy, the surviving spouse is entitled to the decedent’s one-half of the community property. • This means the surviving spouse is entitled to ___________________________________ of the community estate. c. Separate property 1) Spouse +0 • If the decedent is not survived by descendants, parents, or siblings, the surviving spouse gets the ___________________________________ of the decedent’s separate property. 2) Spouse +1 • If the decedent is survived by one lineal descendant, or by a parent or issue of the parent, the surviving spouse gets ___________________________________ of the decedent’s separate property. 3) Spouse +2 • If the decedent is survived by more than one lineal descendent, the surviving spouse gets ___________________________________ of the decedent’s separate property. Example 1: Decedent dies owning $500,000 in property. $100,000 of the property is community property; the rest is separate property. He is survived by his registered domestic partner and the couple’s daughter. What is the partner’s share? Answer: ___________________________________ D. No Heirs If the decedent dies intestate with no heirs, the property ___________________________________ to the state. Example 2: Decedent dies owning $100,000 of property. Decedent has no family or friends, save for a cat that pities him and steals his food when he’s not looking. Decedent’s estate will escheat to the state. CHAPTER 2: INTESTATE SUCCESSION—ISSUE A. Who Qualifies as Issue • Decedent’s lineal line (children, grandchildren, great-grandchildren, etc.) • There must be a ___________________________________ relationship. CA Wills | © 2020 Themis Bar Review, LLC | 3 o Adopted children can inherit from adoptive parents just like biological children. o Adoption usually works to ___________________________________ the child’s relationship with his or her natural parents. • Special Case 1: Stepparent adoption o Creates a parent-child relationship between the child and the stepparent o Does not prevent the adoptee from inheriting from the other biological parent • Special Case 2: Posthumously-born children o Arises when a child is conceived ___________________________________ but is born ___________________________________ the death of the mother’s husband o If the child is born within ___________________________________ days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit as though it was born before the father died. Note 1: If the child is born more than 300 days after the husband’s death, the child will have to prove parentage in order to inherit from the husband. B. Calculating the Issue’s Intestate Shares • California uses two possible methods to calculate the intestate shares of issue. 1. Per Capita o Applies when surviving issue are of ___________________________________ degree of kinship (all in the same generation) o Each survivor takes an ___________________________________ share. Example 3: A is the decedent below: A B C D E F G H I E, F, G, and H all receive a _________________________________ share. E and F do not split their share because each surviving issue in this same generation takes an equal share, regardless of parentage. 2. Per Capita with Representation o When a child dies but is survived by issue, the issue stands in the place of the deceased child. o Three steps: 4 | © 2020 Themis Bar Review, LLC | CA Wills 1. Divide the estate equally at the first generation where a ___________________________________ the decedent. 2. If there are deceased members at that generation, their shares drop down to their surviving issue. 3. If a deceased member has no surviving issue, that member does not take a share. Example 4: A is the decedent below: A C B D E F G H I J Step 1: A had three kids, and C is the only survivor. That is the generation where we divide the estate. Thus, we divide the estate into equal 1/3 shares. C will take a 1/3 share. Step 2: B’s and D’s 1/3 shares drop to their surviving issue. Because B is survived by G, G will stand in B’s shoes and take B’s 1/3 share. Because D is survived by H, I, and J, they will divide D’s share into equal parts, taking 1/9 each. Step 3: Each line is survived by living issue, so each share is accounted for. Summary: C = 1/3 G = 1/3 H, I, J = 1/9 each Example 5: A is the decedent below: A B C D E F G H I J K L F, H, J, K, and L survive the decedent. CA Wills | © 2020 Themis Bar Review, LLC | 5 Step 1: The first generation with a member surviving is E’s generation (the second generation; A’s grandchildren). Divide the shares based on the number of members living or represented. E is dead but is represented by J. F is alive. G is dead but represented by K and L. H is alive. I is dead and not represented by issue. Thus, we divide the estate into 4 shares (E, F, G, and H). Step 2: E’s 1/4 share drops to J. F receives 1/4. G’s 1/4 share drops and is divided equally between K and L, giving them 1/8 each. H receives 1/4. Step 3: I does not take any share because I has no living issue. Example 6: A is the decedent below: A B C D E F G H I J K L F, J, K, and L survive the decedent. Step 1: The first generation with a surviving member is E’s generation (the second generation; A’s grandchildren). E is dead but is represented by J. F is alive. G is dead but represented by K and L. H and I are both dead and neither are represented by issue. Thus, we divide the estate into 3 shares (E, F, and G). Step 2: E’s 1/3 share drops to J. F receives 1/3. G’s 1/3 share drops and is divided equally between K and L, giving them 1/6 each. Step 3: H and I do not receive a share. 3. Illustration Decedent dies intestate, leaving an estate worth $750,000 (150,000 is community). Decedent is survived by Spouse. Decedent and Spouse had 2 children, A and B. B predeceased Decedent, leaving two surviving children, X and Z. How is the estate divided among Decedent’s family members? Spouse takes (“spouse +2” applies): ____________________________ A will take: ___________________________________ X and Z will each take: ___________________________________ 6 | © 2020 Themis Bar Review, LLC | CA Wills C. Disinherited Children • Must be done by a properly executed ___________________________________ o Otherwise, they will receive their ___________________________________ share. • Disinherited heirs are treated as if they predeceased the decedent. CHAPTER 3: EXECUTION OF WILLS; HOLOGRAPHIC WILLS; CODICILS; WILL SUBSTITUTES A. Formal Wills Exam Tip 2: This is a highly tested area of law on the California bar examination.
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