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Chapter 4. The Law of Succession. Testate vs. Intestate. Testacy Death with a valid will Intestacy Death without a valid will. Holographic Wills. A will written in the testator’s own handwriting Valid in California Probate Code §6111.

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Chapter 4

The Law of Succession


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Testate vs. Intestate

  • Testacy

    • Death with a valid will

  • Intestacy

    • Death without a valid will


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Holographic Wills

  • A will written in the testator’s own handwriting

    • Valid in California

      Probate Code §6111.

  • A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

  • (b) If a holographic will does not contain a statement as to the date of its execution and: (1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will. (2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

  • (c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator's own handwriting or as part of a commercially printed form will.


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Nuncupative

  • An oral will

  • Spoken in the presence of witnesses

  • Not valid in California


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Statutory Will

  • A fill-in-the-blank will created and authorized by state statute

  • CA Statutory Will


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Joint or reciprocal will

  • Usually between husband and wife

  • Made at same time and name each other as mutual beneficiary.

  • Check validity of joint will for each state


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Living Will

  • A document separate from a will that expresses a person’s wish to be allowed to stay alive or to die by natural consequences

  • Not really a will disposing of assets but more of directive

  • Advance Health Care Directive

    • CA Probate Code §§4670-4678


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Types of Gifts in a Will

  • Specific bequest or legacy

    • Gift of a particular item or class of personal property

    • Specific Devise

      • A gift of real property


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Legacy

  • Demonstrative

    • A gift of a specific monetary amount from a particular item or sale of item

      • E.g. $10,000 from sale of house

  • General

    • A gift of a fixed amount of money from the general assets of the estate

      • E.g. I give the sum of $10,000 to …


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Residuary

  • A gift, either by legacy or devise, of all of the testator’s property not otherwise disposed of specifically

  • Residuary clause distributes remaining assets of the decedent-testator’s estate after all other gifts in the will have been distributed


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What happens when the gift is not present at time of death?

  • Ademption

    • An intentional act by testator, while alive, to cancel or revoke the gift or to deliver the gift to another or to the beneficiary (ademption by satisfaction)

  • Lapse

    • Failure to distribute a gift in the will because the beneficiary dies before the testator

    • Anti-lapse statue – gives the gift to the beneficiary’s children or heirs who survive the testator

  • Abatement

    • The process that determines the order in which made by testator shall be applied to pay the decedent’s taxes, creditors and expenses

    • Cal. Prob. Code §10003. Subject to Part 4 (commencing with Section 21400) of Division 11 and to Sections 10001 and 10002, if estate property is required or permitted to be sold, the personal representative may: (a) Use discretion as to which property to sell first.


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Intestacy

  • Death without a valid will

  • Distribution is made by state statute

    • Kindred-persons related to one another by blood, a/k/a, next of kin

    • Consanguinity-persons related by blood through a common ancestor

    • Affinity – persons related by marriage


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Descendants

  • A claimant related to the decedent through a lineal or collateral blood line

  • See chart on page 106-8

  • Exhibits 4.5, 4.6 and 4.7


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Intestate Succession

  • Statutes provide rules for descent and determine distribute of property of the decedent


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Per Capita Distribution

  • Division of intestate estate “by the heads”

  • Distribution without benefit of right of representation

    • Right of a child to receive if the parent or was still alive

    • Distribution by the number of heads alive

  • See examples pages 109-10



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Per Stirpes

  • Distribution based upon the relationship of those entitled to the estate

    • Distribution by way of a class or group and not by heads or individuals

    • Example page 111



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CA Intestate Succession

Cal. Prob. Code §6402. Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or surviving domestic partner, as defined in subdivision (b) of Section 37, under Section 6401, or the entire intestate estate if there is no surviving spouse or domestic partner, passes as follows:

(a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.

(b) If there is no surviving issue, to the decedent's parent or parents equally.

(c) If there is no surviving issue or parent, to the issue of the parents or either of them, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240.


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CA Per Stirpes Distribution

  • Ca. Prob. Code §240. If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue.





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Escheat

  • The passage of an intestate’s property to the state when there are no surviving blood relatives or spouses


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Rights of Survivors

  • Surviving spouses

    • Right of election

      • Spouse’s choice of statutory share or gift under the will

      • Cal. Prob. Code §§100-101

        • ½ of community or quasi-community property

    • Forced share

      • Statute that authorizes the spouse to make the choice

  • Same-Sex Couples

    • California recognizes inheritance rights for same-sex couples who have properly entered into a domestic partnership.

      • Receives inheritance rights fully equal to surviving marital spouse



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Divorce

  • If granted after execution of the will, gift determined by state law

  • Generally, divorce revokes the gift to the former spouse and not the will itself

  • Gifts to former spouse usually pass to residuary beneficiary

  • Legal separation does not change former spouse status

    • Cal. Prob. Code §6122(d)


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Marriage

  • Subsequent marriage may revoke entire will-state by state analysis

  • Compare joint tenancy created prior to marriage


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Premarital agreements

  • Contracts between man and woman before their marriage where property rights are usually predetermined

  • Occurs usually in second marriages to protect children of first marriage and to protect second spouse

  • Compare post-marital agreement


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Children

  • Issue: all persons who have descended from a common ancestor

    • Includes children born out of wedlock

  • Natural children are treated the same as adopted children

  • Nonmarital children

    • May inherit from non married parents but governed on a state by state basis

    • Pretermitted (Omitted) and Posthumous Children

      • Omitted child in a will

      • Look to statute to determine affect of whether intentional or not (see next slide)

      • Parents can intentionally disherit children; unlike disheriting a spouse

      • Posthumous child: given intestate share of the deceased father’s estate


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Omitted Children – Cal. Prob. Code §§21620-21621

  • 21620. Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of all of the decedent's testamentary instruments, the omitted child shall receive a share in the decedent' s estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

  • 21621. A child shall not receive a share of the estate under Section 21620 if any of the following is established: (a) The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments. (b) The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child. (c) The decedent provided for the child by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is show by statements of the decedent or from the amount of the transfer or by other evidence.


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Slayer Statutes

  • Abolish the right of a convicted murderer, including a spouse or child, to inherit by will or intestacy the property of the victim.

  • Cal. Prob. Code §250

    (a) A person who feloniously and intentionally kills the decedent is not entitled to any of the following: (1) Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust. (2) Any property of the decedent by intestate succession.


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