Chapter 4

The Law of Succession

Testate vs. Intestate

o Testacy
o Death with a valid will

o Intestacy
o Death without a valid will

Holographic Wills
o A will written in the testators own handwriting
o Valid in California

Probate Code 6111.

(a)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)(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)(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
o An oral will
o Spoken in the presence of
witnesses
o Not valid in California

Statutory Will
o A fill-in-the-blank will created
and authorized by state statute
o CA Statutory Will

Joint or reciprocal will

o Usually between husband and
wife
o Made at same time and name
each other as mutual
beneficiary.
o Check validity of joint will for
each state

Living Will
o A document separate from a will
that expresses a persons wish
to be allowed to stay alive or to
die by natural consequences
o Not really a will disposing of
assets but more of directive
o Advance Health Care Directive
o CA Probate Code 4670-4678

Types of Gifts in a Will

o Specific bequest or legacy
o Gift of a particular item or class of
personal property
o Specific Devise
o A gift of real property

Legacy
o Demonstrative
o A gift of a specific monetary
amount from a particular item or
sale of item
o E.g. $10,000 from sale of house

o General
o A gift of a fixed amount of money
from the general assets of the
estate
o E.g. I give the sum of $10,000 to

Residuary
o A gift, either by legacy or
devise, of all of the testators
property not otherwise disposed
of specifically
o Residuary clause distributes
remaining assets of the
decedent-testators 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?
o Ademption
o 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)

o Lapse
o Failure to distribute a gift in the will because the
beneficiary dies before the testator
o Anti-lapse statue gives the gift to the beneficiarys
children or heirs who survive the testator

o Abatement
o The process that determines the order in which made
by testator shall be applied to pay the decedents
taxes, creditors and expenses
o 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
o Death without a valid will
o Distribution is made by state
statute
o Kindred-persons related to one
another by blood, a/k/a, next of kin
o Consanguinity-persons related by
blood through a common ancestor
o Affinity persons related by
marriage

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Descendants
o A claimant related to the
decedent through a lineal or
collateral blood line
o See chart on page 106-8
o Exhibits 4.5, 4.6 and 4.7

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Intestate Succession
o Statutes provide rules for
descent and determine
distribute of property of the
decedent

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Per Capita Distribution

o Division of intestate estate by
the heads
o Distribution without benefit of
right of representation
o Right of a child to receive if the
parent or was still alive
o Distribution by the number of
heads alive

o See examples pages 109-10

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Per Capita Distribution

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Per Stirpes
o Distribution based upon the
relationship of those entitled to
the estate
o Distribution by way of a class or
group and not by heads or
individuals
o Example page 111

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Per Stirpes Distribution

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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

o 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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Rights of Children and Grandchildren of

Intestate Decedent

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Rights of Parents of Intestate Decedent

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Rights of Siblings of Intestate Decedent

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Escheat
o The passage of an intestates
property to the state when
there are no surviving blood
relatives or spouses

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Rights of Survivors
o Surviving spouses
o Right of election
o Spouses choice of statutory share or gift
under the will
o Cal. Prob. Code 100-101
o of community or quasi-community property

o Forced share
o Statute that authorizes the spouse to make
the choice

o Same-Sex Couples
o California recognizes inheritance rights
for same-sex couples who have
properly entered into a domestic
partnership.
o Receives inheritance rights fully equal to
surviving marital spouse
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Rights of Surviving Spouse

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Divorce
o If granted after execution of the
will, gift determined by state
law
o Generally, divorce revokes the
gift to the former spouse and
not the will itself
o Gifts to former spouse usually
pass to residuary beneficiary
o Legal separation does not
change former spouse status
o Cal. Prob. Code 6122(d)

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Marriage
o Subsequent marriage may
revoke entire will-state by state
analysis
o Compare joint tenancy created
prior
to marriage

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Premarital agreements
o Contracts between man and
woman before their marriage
where property rights are
usually predetermined
o Occurs usually in second
marriages to protect children of
first marriage and to protect
second spouse
o Compare post-marital
agreement

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Children
o Issue: all persons who have
descended from a common ancestor
o Includes children born out of wedlock

o Natural children are treated the

same as adopted children
o Nonmarital children

o May inherit from non married parents

but governed on a state by state basis
o Pretermitted (Omitted) and Posthumous
Children
o Omitted child in a will
o Look to statute to determine affect of
whether intentional or not (see next slide)
o Parents can intentionally disherit children;
unlike disheriting a spouse
o Posthumous child: given intestate share of
the deceased fathers estate

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Omitted Children Cal. Prob. Code 2162021621

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