Chapter 3 Notes - Probate - Spring
2000
updated: 1/16/00
1.How do you determine the identity of the heirs to a will?
Answer: the terms of the decedent's will, state law (intestate
succession if no will), estate
planning devices such as life insurance, joint tenancy, living
trusts. Page 3/2
2. Real property located outside California not covered in
a will or by estate planning devices is
divided how?
Answer: according to intestate succession of state in which
the real or personal property is
located. Page 3/3
3.What are probate avoidance devices? Explain.
Answer: Life Insurance, intervivos trusts, Joint tenancy property,
pay on death (Totten bank
account trusts), life estate. They avoid going through probate
courts since the property passes
directly to the intended parties/beneficiaries without going through
the will and probate. Page
3/3
4.What are "devises", distinguish between "gifts and bequests"
Answer: specific assets such as cash which are gifts under
the will. See page 3/5. Since 1985
all gifts, whether real or personal property are called devises.
5.What is a "residuary clause" in a will?
Answer: A clause which designates the beneficiaries for the
residuary balance of the estate.
Page 3/5.
6. If you state "surviving spouse to use income during
life, with principal to children upon her/his
death" what have you created?
Answer: Intervivos trust, page 3/5
7. When does a child born out of wedlock become a "child"
for purposes of inheritance under a
will if the testator is the father?
Answer: when the father acknowledges the child as his page 3/6.
8. What is an alternate beneficiary?
Answer: person named to get property in event a named beneficiary
fails to survive a
decedent. Page 3/7.
9. Give an example of an unenforceable will provision.
Answer: Clause which suggests and does not mandate action to be taken. Page 3/8
10.List the steps to interpret a will.
Locate the parts of the will which dispose of the property,
interpret the words re potential
beneficiaries. Identify alternate beneficiaries, contingent and
conditional. See chart on page
3/9
11.You are listed as a beneficiary to receive a classic "1935
Stutz Bearcat" automobile from your
rich uncle, but before he dies, and after he signed his will,
the car is sold, what do you do?
Answer: the executor can attempt to trace the money, possibly
it is in a bank account and has
not been terribly commingled with the other cash in the bank account.
See page 3/10.
12. If a gift is made to a relative of the testator and the
relative dies who gets the gift, if anyone?
And under what principle? If the gift is not made to a relative,
and that person predeceases
the testator, who inherits, if anyone?
Answer: gift goes to issue (i.e children, great grandchilder,
etc.) by right of representation. See
page 3/11. If the gift is to a non-relative, then the gift lapses,
and goes by way of residuary
clause.
13. Does a wife/husband get anything if the decedent's spouse
does not provide for him/her in a
will (if by accident, the spouse is left out of the will), if
so, why, and if not, why not? What
Probate Code Section applies _______ ?:
Answer: spouses "statutory share" community property
of estate. See Probate Code section
6560-6562. Page 3/12.
14. If a child is left out of a will, does he or she inherit,
when, if so, ____, if not, when not ____
what law _______?
Answer: omitted children see Probate code Section 6570-6573.
Not if left out intentionally, if
decedent left substantially all of estate to other children, if
child provided for outside of estate
by other moneys, assets. Etc. see page 3/14
15. How long must heirs survive the decedent (intestate succession-no
will) to receive property?
____ what law ____?
Answer: 120 hours. See Probate Code Section 6403.
16.What is the definition of "per stirpes", and how is it different from "right of representation"
Answer: descendants of deceased beneficiaries take the same
share collectively that the
deceased beneficiary would have taken if she or he had survived
the decedent testator. See
page 3/19.
17. What is the difference between formula #1 and #2 in "right of representation", define, and give an example, and give the relevant Probate Code Sections.
Answer: Format #1 Probate Code Section 240. Will provides that
issue of deceased beneficiary
take but does not specify what method, when beneficiary predeceases,
or when intestate succession applies. Format #2 Probate Code Section
246. Applies when the will specifically calls for distribution
by "right of representation" see page 3/20.
Chapter 4 Notes - Probate - Spring 2000
1.What is the difference between a grant deed and a quitclaim
deed?
a grantor in a grant deed makes certain implied warranties
(4/3) that he/she owns the
property and has not previously conveyed/transferred, mortgaged
or otherwise
encumbered the property. In a quitclaim deed the grantor
makes no warranties about
title (4/5)
2.Can you use a grant deed/quitclaim deed to create a transfer
to husband and wife as joint
tenants? explain. yes. 4/6 if the substance of the deed indicates
a joint tenancy has
been created, any grant deed or quitclaim deed can be used
as long as the grantees
are named as joint tenants.
3.If a will transfers a piece of real property to an heir,
will the heir have to make mortgage
payments on the real property once it is transferred to him/her
in order to keep it? explain.
yes. as a rule the real property passes to the new owner
(heir) with the encumbrance
4/8. most properties are encumbered and have mortgages. the
new owner then
becomes reponsible for making payment on the mortgage, the
taxes, etc.
4.If a widow owns a home and transfers it to her son, reserving
to herself the right to live in the
home until she dies, when she does die, the property then
goes through probate, correct?
explain. the widow (grantor) creates a life estate, this
transfers the ownership to her
son, but it is subject to the life estate (4/13). it accomplishes
the objective of the
widow (grantor) of avoiding the probate of the home upon
her death because she will
die without ownership of the property. Her life estate will
terminate at the moment of
death and the home will be owned by her son.
5.A husband has money (cash) in his checking account before
he marries and the cash is used
during marriage to buy some stocks and bonds which are then
sold to purchase a house, does
the house remain his separate property or is it community
property because he is married?
explain. the house remains the separate property of the husband
as long as there was
no commingling of assets. 4/16 the property can change its
physical form but retain
its character as separate property as long as there is no
commingling.
6.If a husband purchases life insurance on his life, naming
his brother as beneficiary and 1/2 of
the premiums are paid from community property funds, when
the husband dies, how much, if
any, is his wife entitle to share of the insurance proceeds
with the brother. explain his wife is
entitled to one-fourth of the proceeds of the policy (that
is, one half of the community
one-half), and the brother is entitled to the rest. 4/18.
7.A wife owns a home before marriage. Husband and Wife add
a pool to the house and
husband agrees to not ask for reimbursement from the wife.
When the husband dies, his
children will get what share of the house? explain. no, since
the house was the wife's
house before marriage, and the husband agreed to treat the
cost of improvements
(i.e. the pool) as a gift to his wife, and did not ask for
reimbursement of his one-half
interest in the community funds used for the improvements.
4/20