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  1. Community Property
    Defined by way of exclusion: All property acquired during marriage or domestic partnership while domiciled in California that is not separate property.
  2. Separate property
    Property that is acquired before marriage or domestic partnership, and during marriage or domestic partnership by gift, bequest, devise, and descent, together with the rents, issues, and profits thereof.
  3. Quasi-Community Property
    • All personal property wherever situated, and all real property situated in California, acquired by a decedent while domiciled elsewhere that would have been community property if the decedent had been domiciled in this state at the time of its acquisition. (Usually in one spouse's name)
    • In the absence of death or divorce or termination of domestic partnership, it is treated as separate property of the acquiring spouse or the acquiring domestic partner. [Note that the probate definition for quasi-community property is different from the definition for divorce. For divorce purposes, quasi-community property is all real property, wherever located. For decedents’ estates purposes, quasi-community property is limited to real property located in California.]
  4. Spousal/Domestic Partner Protection
    • Protection is given to the surviving spouse based on CP system
    • Rules to Protect the Survivor
    • 1. T can give away only his half of CP and his half of Quasi-CP (but T has no interest in Survivor’s QCP)
    • 2. Widow(er)’s election
    • 3. Protection regarding illusory transfers of quasi-community property and the widow’s (or surviving domestic partner’s) election
  5. Widow's election:
    • survivor may accept T’s Will or the statutory right, but not both.
    • Can take whatever T gave under the will OR elect to take ½ the CP and QCP (take against the will)
  6. Protection regarding illusory transfers of quasi-community property and the widow’s (or surviving domestic partner’s) election
    • During Lifetime QCP is treated as the acquiring party’s SP (freely transferable). Reasoning: surviving spouse has just an expectancy in the QCP, not a property interest
    • Exception: transfers of acquiring party’s QCP is not allowed when the transfer of the QCP is deemed illusory and the surviving spouse or domestic partner invokes the widow’s election. In such a case, the survivor may require the transferee to restore ½ of the QCP to the decedent’s estate.
    • Illusory: decedent retained some interest or ownership control over the property.
  7. Heirs who are killers? What level of proof?
    • Those who feloniously and intentionally kill the decedent cannot take benefits under the will. The killer will not take and the issue of the killer will not take.
    • A conviction (guilty plea works) is conclusive.
    • In other cases, probate court can determine guilt w/ preponderance w/out a conviction
  8. Joint tenancy where person kills his fellow JT
    • Severance of the JT so the killer does NOT have a right of survivorship
    • Killer doesn’t lose his half interest in the property. So TiC
  9. Killer who is an insurance Beneficiary?
    Killer does NOT take any benefit under the insurance K if kill insured.
  10. Intestate Succession: Order of takers?
    • 1. Surviving Spouse
    • 2. Surviving Issue (Predeceased spouse?)
    • 3. Surviving parents
    • 4. Surviving issue of parents (brothers, sisters)
    • 5. Surviving grandparents
    • 6. Surviving issue of grandparents (aunts, uncles)
    • 7. Step children (children of predeceased spouse)
    • 8. Next of kin
    • 9. Parents of decedents former spouse (in laws)
    • 10. if none of the above: Escheat to state of California
  11. Surviving spouse inherits what share of CP/quasi-CP?
    • Inherits decedent’s ½ of the CP and ½ of the quasi-CP
    • Survivor already owned ½ of CP and QCP; thus, get’s 100% of CP, and 100% of the QCP as well
  12. Separate Property: spouse or DP take as follows:
    • Entire estate
    • if no issue, parents, Brother or Sister or issue of B/S
    • ½ the intestate estate
    • decedent leaves ONE child or issue of predeceased child
    • decedent leaves no issue but leaves a parent(s) or brother/sister (issue of parents), or nieces/nephews (issue of deceased brother/sister)
    • 1/3 the intestate estate to surviving spouse, 2/3 to children
    • decedent leaves more than one child
    • decedent leaves one child and the issue of one or more deceased children
    • decedent leaves issue of two or more deceased children
  13. Who gets how much: Per Capita by representation?
    • Start at the first line where one person is living
    • Give everyone the same amount at that level and to deceased of that generation who leave issue.
    • Issue stand in shoes of predeceased children (so split the share of the deceased)
  14. Who gets how much: Per Stirpes/right of representation/by representation
    First distribution at the first generation after decedent, even if everyone is dead (issue split those shares)
  15. Rights of Adopted Children?
    • Always treated as natural child of the adopting parents
    • Adoption severs child’s ties and intestate rights to natural parents
    • Exception:
    • 1. not severed if the adoption is by the spouse or DP of the natural parent
    • 2. or the adoption is after the death of either of the natural parents
  16. Equitable adoption
    when parties hold themselves out as parent and child
  17. Step/Foster Children: can they be adopted?
    • The child is treated as having been adopted if:
    • 1. The relationship began during child’s minority, AND
    • 2. It continued through the lifetime of the child, AND
    • 3. It is established by C/C evidence that the stepparent or foster parent would’ve adopted but for a legal barrier
    • Example of barrier: biological parent does not give consent to adopt
  18. Non-marital children?
    • Marital status of parents is irrelevant
    • Key: did a parent-child relationship exist?
  19. Non-marital children born to Domestic Partners?
    • In a DP, the parent child relationship is established as to the non birthing partner by means of presumption
    • Child born during DP presumed child of non-birthing partner
    • Formation or attempted formation of DP after child was born AND non-birthing DP . . .
    • 1. is named on birth certificate OR
    • 2. voluntarily promises to pay child support or is ordered to do so by the court
    • Then a parent-child relationship presumed between the child and non-birthing DP
  20. Rights of half-bloods?
    relatives of half bloods inherit same as full bloods
  21. POSTHUMOUS CHILD: definition?
    Children that are conceived during lifetime decedent but born after the death are deemed heirs of intestate and beneficiaries of T’s will
  22. Lapse?
    • Beneficiary must survive T to take under will, trust or intestacy: dead ppl don’t take.
    • If beneficiary predeceases T, the gift lapses (fails) UNLESS a contrary intent is expressed in the will.
    • Consequence of lapse: gift falls to residue OR Goes to intestacy
  23. Anti-lapse Statutes?
    • Applies only if the devisee who predeceased the T was KINDRED of T (blood relative) OR kindred of a surviving, deceased or former spouse/DP of the testator, and this predeceased devisee leaves issue. In such cases, the Issue will step into the shoes of that predeceased devisee.
    • Note: Devisee cannot be the spouse or DP!
  24. Simultaneous death definition?
    If people die together, and it can’t be established by clear & convincing evidence who died first, it is deemed that devisee predeceased T.
  25. Gift and simultaneous death?
    Gift would either lapse or be distributed under CA’s anti-lapse
  26. JT and simultaneous death?
    Severs the JT – each gets 1/2
  27. CP and simultaneous death?
    Severs the CP/QCP – each gets 1/2
  28. Insurance and simultaneous death with the beneficiary?
    • 1. Look for alternate beneficiary
    • 2. If no alternate, then to insured's estate (residuary if exists, otherwise to heirs)
    • 3. NOTE: if policy premiums are paid w/ CP or quasi-CP AND the insured and beneficiary were married/DP’s then 1/2 proceeds go to H’s estate and half to the other W or DP’s estate
  29. Intestate and heir die at the same time?
    Heir must survive the intestate by 120 hours in order to take, established under a C/C evidence standard. Does NOT apply if property would escheat
  30. After-acquired property?
    • Rule: A will passes all property the T had at the time of execution plus all acquired property after will was executed
    • Increase during T’s lifetime: Stock dividends or splits paid/declared during T’s lifetime go to the beneficiary if the stock is owned by T at T’s death
  31. Increase during probate (after T’s death)
    • Specific devises: all increases go to beneficiary (e.g., stock dividends/splits, rents, interest on indebtedness)
    • General devisee’s don’t receive the increase (EXCEPTION: general pecuniary gifts ($10k to A) earn interest from 1 year after death to date of distribution)
  32. Order of abatement
    • 1. First, abate property NOT passing by the decedent’s will or revocable inter vivos trust
    • 2. Then, from all beneficiaries of T’s will AND trust in proportion to value of the gifts they each received (pro-rata)
    • Relatives are not favored over non relatives
    • Exception:
    • court can exempt the specific gift if abating would defeat the OBVIOUS intention of the testator
    • must appear from the language in which the specific devise is created or from general terms of will or trust
  33. Order of abatement to pay off general debts of the decedent
    • 1. Intestate property
    • 2. Residuary gifts
    • 3. General gifts to non-relatives
    • 4. General gifts to relatives
    • 5. Specific gifts to non-relatives
    • 6. Specific gifts to relatives (note that demonstrative gifts treated as specific.)
    • NOTE: the order of abatement for omitted children and spouses is NOT the order to pay off general debts of decedents
  34. Exoneration, definition?
    • debt is extinguished
    • Modern and CA Rule: NO AUTOMATIC EXONERATION. Devisee takes specific gifts subject to an encumbrance (e.g. mortgage) unless the testator’s will states that the specific gift is to be exonerated (executor pays off the debt w/ the estate).
    • General direction “to pay all my debts” insufficient to require exoneration
    • If the gift is exonerated, in the absence of contrary intention in the will, other specific gifts do not abate.
  35. Gift made in contemplation of imminent death
    • These gifts are Valid, but only for personal property not real property. Donor must make a delivery of the property to donee.
    • NOTE: if donor survives, revoked by operation of law
  36. Gifts Causa Mortis: Actual/manual delivery?
    corpus is itself transferred to donee (cash handed over)
  37. Gifts Causa Mortis: symbolic delivery?
    • something representative of the corpus is given to donee
    • ie: a writing evidencing ownership (quarterly statement of a bank account)
  38. Gifts Causa mortis: constructive delivery?
    • CL: key to a room, safe deposit box, treasure map etc.
    • Modern: where donor has done everything possible to effectuate delivery and no issue of fraud/mistake
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