Wills and Trusts
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- (1) testamentory capacity
- (2) intent
- (3) writing
- (4) signed by testator
- (5) attested by two or more competent witness (subscribe will, seperate affidavit in testors precense by his direction).
- (6) witness must see testator sign or recieve the testators's acknowledgement that instrument has been adopted by him.
Joint Tenancy with a right of survivorship
Does not pass through probate, is not subject to intestate sucession, and generally passes to the surviving joint tenant.
If Funded by a spouse, then half is community proper and owned by surviving spouse (other 3/4s goes to surviving joint tenant).
Death of Spouse?
Does not affect validity of will. Any gift to deceased spouse lapses. It does not go to the deceased spouse's estate and it is not saved by the anti lapse statute for the issue of te deceased spouse.
Affect of Remarriage
Omitted spouse: presumptively entiteled to intestate share (all of the community property and on-half of the seperate property). May be rebutted by showing evidence of intent to the contrary.
Homestead protection: Either protect house from creditors, or claim and award in lieu of homestead, equal to homestead amount exemption.
Death of a child
Unless the will provides to the contrary, any issue of a child who predeseasers the testator thakes the deceased child's share by right of represetation under the anti-lapse statute.
Birth of a child
Ommitted child: entitled to intestate chare, unless evidence to the contrary intent.
If there is a surviving spouse, its one half of seperate property.
Permits partial revocation by physical act unless it attempts a new disposition without attestation. Cancellation of a portion of the will appearing upon the face of the will, made with the intent to revoke such portion, operates as revocation of that portion if the remainder standing along can be understood.
If it is for the sole purpose of giving to another, as evidence by an accompanying alteration without formally excuting a new will or codicil, is ineffectual of a revoakcation.
A seperate writing made without formalities of execution can only be used to dispose of personal property if it references a will provision authorizing such a writing. Otherwise, a seperate writing to amend the will would have to meet the requirements for a valid codicil, which include the excution formalities of a will: a writing signed by the testator and attested to by two witnesses.
Condition - survival
A will can validly condition right of inheritance on survival.
Group Term life insurance
The character of group term life insurance proceeds is determined by the character of the last premium payment before death. If community property - one half to surviving spouse, other half to beneficiary designation.
If a marriage is dissolved or invalidated, a will provision regarding life insurance (a nonprobate asset) made prior to that even grants an interest to the decedent's former spouse or domestic partner is revoked. The non-probate asset passes as if the former spouse failed to survive the decedent.
Duties as Personal Representative
Fiduciary and owes a duty of complete honesty, loyalty, and due care to the estate, its disrubutees and heirs, and its creditors.
Secured creditors should be paid first, and beneficiaries will not recieve bequests until all creditors are paid. A surviving spouse not nominated as executor has the right to administer CP if quealified and application for appointment is made within 40 days after death.
Supersedes conflicting provisions of the original will. Must be executed in the manner provided for wills.
Must be attested by two competent witnesses. Attestation is a mental act affirming the genuineness of the testator's signature and the facts of the proper execution of the will. Each witness must either see the testator sign the will or recieve the testator's acknoledgement that the instrument has been adopted by her as her act. Must be in presence of tesator, but not each other.
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