Home > Flashcards > Print Preview
The flashcards below were created by user
on FreezingBlue Flashcards. What would you like to do?
CPC 100 Community Property
- (a) Upon the death of a married person, one-half of the
- community property belongs to the surviving spouse and the other half
- belongs to the decedent.
- (b) may agree in writing to divide their community property on the basis of a non
- pro rata division
CPC 101 Quasi Community Property
- (a) Upon the death of a married person domiciled in this
- state, one-half of the decedent's quasi-community property belongs to
- the surviving spouse and the other half belongs to the decedent.
- (b) Notwithstanding subdivision (a), a husband and wife may agree
- in writing to divide their quasi-community property on the basis of a
- non pro rata division
CPC 102 Spouse's Right to Recover Quasi-Community property
- (a) The decedent's surviving spouse may require the transferee
- of property in which the surviving spouse had an expectancy under
- Section 101 at the time of the transfer to restore to the decedent's
- estate one-half of the property if the transferee retains the
- property or, if not, one-half of its proceeds or, if none, one-half
- of its value at the time of transfer, if all of the following
- requirements are satisfied:
- (1) D died domiciled in this state.
- (2) D made a transfer of the property to a person other
- than SS without receiving in exchange a
- consideration of substantial value and without the written consent or
- joinder of the surviving spouse.
- (3) The transfer is any of the following types:
- (A) A transfer under which the D retained at the time of
- death the possession or enjoyment of, or the right to income from,
- the property.
- (B) A transfer to the extent that the decedent retained at the
- time of death a power to revoke or to consume principal
- for the D's own benefit.
- (C) A transfer whereby property is held at the time of the
- decedent's death by the decedent and another with right of
- (b) Nothing in this section requires a transferee to restore to
- the decedent's estate any life insurance, accident insurance, joint
- annuity, or pension payable to a person other than the surviving
- (c) All property restored to the decedent's estate under this
- section belongs to the surviving spouse pursuant to Section 101 as
- though the transfer had not been made.
CPC 103 Survival Statute for Community Property
- No CCE that one spouse survived the other:
- (a) One-half of the community property and one-half of the
- quasi-community property shall be dealt with, as if one spouse had survived and as if that
- half belonged to that spouse.
- (b) The other half of the community property and the other half of
- the quasi-community property shall be dealt with, as if the other spouse had survived and as
- if that half belonged to that spouse.
CPC 140 Definition of Waiver
- waiver by the SS of any of the rights listed in subdivision (a) of
- Section 141, whether signed before or during marriage.
CPC 141 Property that may be waived
- (a) The right of a surviving spouse to any of the following
- may be waived in whole or in part:
- (1) intestate succession.
- (2) testamentary disposition in a will executed before the waiver.
- (3) A probate homestead.
- (4) The right to have exempt property set aside.
- (5) Family allowance.
- (6) The right to have an estate set aside under Chapter 6
- (7) The right to elect to take community or quasi-community against the decedent's will.
- (8) The right to take the statutory share of an omitted spouse.
- (9) The right to be appointed as the personal representative of
- the decedent's estate.
- (10) An interest in property that is the subject of a nonprobate
- transfer on death under Part 1 (commencing with Section 5000) of
- Division 5.
- (b) Can't waive the right to property that would pass
- from the D to the SS by nonprobate transfer
- upon the death of the decedent, such as the survivorship interest
- under a joint tenancy, a Totten trust account, or a pay-on-death
CPC 142 Requirements for a waiver
- (a) waiver in writing and signed by the SS.
- (b) must be enforceable under either Section 143 or Section 144.
- (c) (1) Lack of consideration is not a defense
- (2) A minor intending to marry may make a waiver under this
- chapter as if married, but the waiver becomes effective only upon the
CPC 143 Requirements for SS to show waiver unenforceable
- a) SS must prove either::
- (1) fair & reasonable disclosure of the property or financial
- obligations of D not provided to the SS
- prior to the signing of the waiver unless SS waived such a fair and reasonable disclosure after advice by independent legal counsel.
- (2) SS not represented by independent legal
- counsel at the time of signing of the waiver.
CPC 144 Court Enforced Waiver
- a) a waiver is enforceable if the court
- determines either:
- (1) waiver at the time of signing made a fair & reasonable
- disposition of the rights of SS.
- (2) SS had, or reasonably should have had, an
- adequate knowledge of the property and financial obligations of D & D didn't violate FC 721(b)
- (b) If court finds that enforcement would be unconscionable at the time enforcement is sought, the court may refuse to enforce the waiver, enforce the remainder of the waiver without the
- unconscionable provisions, or limit the application of the unconscionable provisions to avoid an unconscionable result.
CPC 145 Scope of Waiver
- Unless waiver or property settlement contrary, a waiver of "all rights" (or equivalent
- language) is a waiver by the spouse of the rights described in subdivision (a)
- of Section 141.
CPC 146 Revocation or Amendment of a waiver
Go through the entire process again
CPC 147 Misc. Waiver
- 1/1985 effective date
- not retroactive
- Nothing in this chapter limits any right one spouse otherwise
- has to revoke a consent or election to disposition of his or her half
- of the community or quasi-community property under the will of the
- other spouse
CPC 220 General Survival Statute
- If the title to property depends upon priority of death
- and it cannot be established by CCE that one of the persons survived the other, the property of each person shall be dealt with, as if that person had survived the other.
CPC 222 Beneficiary Survival Statute
- a) If property is so disposed of that the right of a B conditional on surviving another person and it cannot be established by CCE that the B survived the other
- person, B deemed not to have survived the other person.
- (b) If property is so disposed of that one of two or more
- beneficiaries would be entitled to the property if he or she had survived the others, and it cannot be established by CCE that any B survived any other
- B, the property shall be divided into as many equal portions as there are B and the portion of each B shall be dealt with, as if that beneficiary had survived the other beneficiaries.
CPC 223 Joint Tenancy Survival Statute
- (a) "joint tenants" includes owners entitled one or more to the
- whole of the property on the death of the other or others.
- (b) If held by two joint tenants and both have
- died and no CCE that one survived the other, the property held in joint tenancy shall
- be dealt with, one-half as if one joint tenant had survived and one-half as if the other joint
- tenant had survived.
- (c) If property is held by more than two joint tenants and al; have died and no CCE that any of them survived the others, the property held in
- joint tenancy shall be divided into as many portions as there are
- joint tenants and the share of each joint tenant shall be dealt with, as if that
- joint tenant had survived the other joint tenants.
CPC 224 Non-Probate Survival Statute
- If the insured and a B under a policy of life or
- accident insurance have died and no CCE that the beneficiary survived the insured,
- the proceeds of the policy shall be dealt with, as if the insured had survived the beneficiary,
- except if the policy is community or quasi-community property of the
- insured and the spouse of the insured and there is no alternative
- beneficiary except the estate or personal representative of the
- insured, the proceeds shall be distributed as community property
- under Section 103.
CPC 240 Modern Per Stirpes
- 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.
CPC 6110 Will Requirements
- (a) a will shall be in writing and satisfy the requirements of this section.
- (b) The will shall be signed by one of the following:
- (1) By the testator.
- (2) In the testator's name by some other person in the testator's
- presence and by the testator's direction.
- (3) By a conservator pursuant to a court order to make a will
- under Section 2580.
- (c) The will shall be witnessed by being signed by at least two
- persons each of whom (1) being present at the same time, witnessed
- either the signing of the will or acknowledgment of
- the signature or of the will and (2) know it's testator's will.
CPC 6105 Conditional Will
- A will, the validity of which is made conditional by its own
- terms, shall be admitted to probate or rejected in conformity with the condition.
CPC 6111 Holographic Will
- (a) valid as a holographic will if the signature and
- the material provisions are in the handwriting of the testator.
- (b) If no statement as to the date of execution and:
- (1) 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 testator lacked testamentary capacity at any time during which the will might have been executed, will invalid unless established that it was executed when the testator had testamentary capacity.
- (c) Any statement of testamentary intent may be set forth as part of a commercially printed form will
CPC 6112 Witness Requirements
- (a) Any person generally competent to be a witness may act as
- a witness to a will.
- (b) will not invalid if signed by an interested witness.
- (c) Unless two other subscribing disinterested witnesses to the will, a devise to a subscribing witness creates a presumption that witness procured the devise by duress, menace, fraud, or undue
- influence. This presumption is a presumption affecting the burden of
- proof. Presumption does not apply where the witness is solely in a fiduciary.
- (d) If a devise to interested witness fails because of (c) applies and fails to rebut presumption, the
- interested witness share shall not exceed the share of the estate
- which would be distributed to the witness if the will not
CPC 6111.5 Extrinsic Evidence
- Extrinsic evidence admissible to determine whether a
- document constitutes a will pursuant to Section 6110 or 6111, or to
- determine the meaning of a will if meaning unclear.
CPC 6113 Wills Accepted in CA
- A written will is validly executed if ::
- (a) The will is executed in compliance with Section 6110 or 6111; OR
- (b) complies with the law at the time of execution of the place where the will is executed.
- (c) execution of the will complies with the law of the place
- at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.
CPC 6104 Undue Influence
- The execution or revocation of a will
- ineffective to the extent the execution or revocation procured by
- duress, menace, fraud, or undue influence.
CPC 6102 Who you can leave property to in a will
- A will may make a disposition of property to any person,
- (a) An individual.
- (b) A corporation.
- (c) An unincorporated association, society, lodge, or any branch
- (d) A county, city
- (e) Any state
- (f) The United States
- (g) A foreign country
CPC 6101 Property disposable in will
- A will may dispose of the following property:
- (a) The testator's separate property.
- (b) The one-half of the community property
- (c) The one-half of the testator's quasi-community property
CPC 6100.5 Competence to make a will
- (a) not mentally competent to make a will if :
- (1) The individual does not have sufficient mental capacity to be
- able to
- (A) understand the nature of the testamentary act,
- (B) understand and recollect the nature and situation of the individual's
- property, or
- (C) remember and understand the individual's relations
- to living descendants, spouse, and parents
- (2) The individual suffers from a mental disorder with symptoms
- including delusions or hallucinations, which delusions or
- hallucinations result in the individual's devising property in a way
- which the individual would not have done.
CPC 6100 Who may make a will
(a) 18 year old & of sound mind may make a will.
CPC 6400 Intestacy Presumption
- Any part of the estate of a D not effectively disposed
- of by will passes to D's heirs
CPC 6401 Intestacy: Surviving Spouse
- (a) As to community property, the intestate share of the
- surviving spouse is the one-half of the community property .
- (b) As to quasi-community property, the intestate share of the
- surviving spouse is the one-half of the quasi-community property .
- (c) As to separate property, the intestate share of surviving
- spouse is:
- (1) The entire intestate estate if no surviving issue, parent, brother, sister, or issue of a deceased
- brother or sister.
- (2) One-half of the intestate estate if:
- (A) D leaves only one child or grandkid;OR.
- (B) D leaves no issue but leaves a parent or siblings;OR
- (3) One-third of the intestate estate if:
- (A) more than one child.;OR
- (B) one child and grandkid;OR
- (C) issue of two or more deceased children.
CPC 6402 Intestacy: Non-Surviving Spouse
- Rest of estate besides SS share to:
- (a) issue, 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 parent or
- parents equally.
- (c) If there is no surviving issue or parent, to D's siblings , 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.
- (d) If there is no surviving issue, parent or issue of a parent,
- but survived by one or more grandparents or issue of
- grandparents, to the grandparent or grandparents equally, or to the
- issue of those grandparents if there is no surviving grandparent,
- 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.
- (e) If there is no surviving issue, parent or issue of a parent,
- grandparent or issue of a grandparent, but survived by the issue of a predeceased spouse, to that issue, the issue taking equally if they are all of the same degree of kinship to the
- predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
- (f) If there is no surviving issue, parent or issue of a parent,
- grandparent or issue of a grandparent, or issue of a predeceased
- spouse, but the decedent is survived by next of kin, to the next of
- kin in equal degree, but where there are two or more collateral
- kindred in equal degree who claim through different ancestors, those
- who claim through the nearest ancestor are preferred to those
- claiming through an ancestor more remote.
- (g) If there is no surviving next of kin of the decedent and no
- surviving issue of a predeceased spouse of the decedent, but the
- decedent is survived by the parents of a predeceased spouse or the
- issue of those parents, to the parent or parents equally, or to the
- issue of those parents if both are deceased, the issue taking
- equally if they are all of the same degree of kinship to the
- predeceased spouse, but if of unequal degree those of more remote
- degree take in the manner provided in Section 240.
CPC 6120 Will Revocation
- A will revoked by:
- (a) subsequent will which revokes the prior will expressly or by inconsistency.
- (b) Being burned, torn, canceled, obliterated, or destroyed, with
- the intent and for the purpose of revoking it, by either (1) the
- testator or (2) another person in the testator's presence and by the
- testator's direction.
CPC 6121 Revocation: Duplicate Wills
- A will executed in duplicate is revoked
- if one of the duplicates burned, torn, canceled, obliterated, or
- destroyed, with the intent and for the purpose of revoking it, by
- either (1) the testator or (2) another person in the testator's
- presence and by the testator's direction.
CPC 6123 Revival and Revocation
- (a) If a 2nd will would have revoked the 1st will in whole or in part, is revoked, the first will
- is revoked in whole or in part unless it is evident from the circumstances of the revocation of the 2nd will or from the T's contemporary or subsequent declarations that the testator
- intended the 1st will to take effect
- (b) If a 2nd will would have revoked the first will in whole or in part, is revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third
- will that the testator intended the first will to take effect.
CPC 21105 Will Interpretation
- A will passes all property the testator owns at death, including property
- acquired after execution of the will.
CPC 21109 Interpretation: Survival Requirement
- a) A transferee who fails to survive the transferor of an
- at-death transfer or until any future time required by the instrument
- does not take under the instrument.
- (b) If no CCE of survival, it is deemed that the transferee did not survive until
- the required future time.
CPC 21110 Anti-Lapse Statute
- (a) if a transferee fails to survive to time required by instrument, the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240. A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee's death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed.
- (b) The issue of a deceased transferee do not take in the
- transferee's place if the instrument expresses a contrary intention
- or a substitute disposition. A requirement that the initial
- transferee survive the transferor or survive for a specified period
- of time after the death of the transferor constitutes a contrary
- intention. A requirement that the initial transferee survive until a
- future time that is related to the probate of the transferor's will
- constitutes a contrary intention.
- (c) "transferee" means a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor.
CPC 21620 Omitted Child Statute
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 an intestate share
CPC 21621 Omitted Child: Prohibited from Taking
- A child shall not receive a share if:
- (a) failure to provide for the child was intentional and that
- intention appears from the testamentary instruments.
- (b) 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) 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 shown by statements of D or from the amount
- of the transfer or by other evidence.
CPC 21622 Oops my kid's not dead/ I'm a (dead) father statute
- If, at the time of the execution of all of D's
- testamentary instruments effective at the time of D's death,
- D failed to provide for a living child solely because the D believed the child to be dead or was unaware of the birth of the child, child shall receive intestate share
CPC 21623 Omitted Child: Money has to come from somewhere statute
- (1) first taken from estate not disposed of by will or trust
- (2) all B of d's testamentary instruments contribute in proportion to the value they may
- respectively receive based on values as of the date of the decedent's death.
- (b) If the obvious intention of the decedent in relation to some
- specific gift or devise or other provision of a testamentary
- instrument would be defeated, the specific devise or gift or provision of a testamentary instrument
- may be exempted and a different apportionment, consistent with the intention of the
- decedent, may be adopted.
CPC 21700 Contracts to make a testamentary disposition
- (a) A contract to make, not revoke, will or nonprobate transfer or to die
- intestate can be established only by one of the following:
- (1) Provisions of a will or other instrument stating the material
- provisions of the contract.
- (2) An expressed reference in a will or other instrument to a
- contract & extrinsic evidence proving the terms of the contract.
- (3) A writing signed by the decedent evidencing the contract.
- (4) CCE of an agreement between D & the claimant or a promise by the D to the
- claimant that is enforceable in equity.
- (5) CCE of an agreement between D & another person for the benefit of the claimant or a
- promise by the D to another person for the benefit of the claimant that is enforceable in equity.
- (b) Joint will or mutual willd does not create presumption of a contract not to revoke the will or wills.
- (c) not retroactive