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