California Probate Code and Related Provisions Student Edition : Student Code Book Series

by Weisberg, D. Kelly

• ISBN13: 9780735561861
• ISBN10: 0735561869
• Edition: Student
• Format: Paperback
• Copyright: 2006-09-22
• Publisher: Wolters Kluwer

Table of Contents

Preface and Acknowledgments	p. xvii
California Probate Code	p. 1
Intestate Succession	p. 3
Introduction	p. 3
Definitions and Terminology	p. 3
Jurisdiction and Venue	p. 7
Disposition of Decedent's Remains	p. 7
Disposition of Decedent's Personal Effects	p. 10
Intestacy	p. 11
Share of Surviving Spouse and Issue	p. 11
Intestate Share of Surviving Spouse	p. 13
Intestate Share of Surviving Domestic Partner	p. 18
Intestate Share of Surviving Issue	p. 25
Shares of Ascendants and Collateral Relatives	p. 29
Escheat	p. 30
Other	p. 33
Share of Half-Blood Relatives	p. 33
Bar on Double Inheritance by Some Relatives	p. 34
Share of Foster Child or Stepchild	p. 34
Questions of Status	p. 35
Posthumous Children	p. 35
Aliens	p. 37
Adoption	p. 37
Inheritance By, From, and Through Adoptive Parents	p. 38
Inheritance By, From, and Through Biological Parents	p. 39
Adult Adoption	p. 39
Equitable Adoption	p. 39
Nonmarital Children	p. 40
Disqualification for Misconduct	p. 43
Slayer Disqualification	p. 43
Other Unworthy Heir Statutes	p. 44
Simultaneous Death	p. 48
Advancements, Releases, and Assignments	p. 51
Family Protection: Policy Limitations on Freedom of Testation	p. 53
Allowances and Exemptions	p. 53
Family Allowance	p. 53
Homestead Exemption	p. 55
Personal Property Exemption	p. 58
Minimum Rights of the Surviving Spouse	p. 59
Dower	p. 59
Forced Share and the Surviving Spouse's Election	p. 60
Community Property Rights	p. 60
Waiver by the Surviving Spouse	p. 67
Attempts to Defeat the Surviving Spouse's Statutory Rights	p. 71
Generally	p. 71
UPC Augmented Estate	p. 71
Election Will	p. 71
Protection from Disinheritance	p. 72
Spouses	p. 72
Children	p. 74
Mortmain Statutes	p. 76
Negative Beneficiaries	p. 77
Will Execution	p. 79
Introduction	p. 79
Terminology	p. 79
Historical Background	p. 82
Formalities of Will Execution	p. 82
Function of the Formalities	p. 8
Testamentary Capacity	p. 84
Testamentary Intent	p. 85
Writing Requirement	p. 85
Testator's Signature	p. 86
Proxy Signature	p. 87
Subscription Requirement	p. 88
Electronic Signatures	p. 88
Witnesses	p. 88
Generally	p. 88
Testator's Signature in the Witnesses' Presence	p. 89
Competence vs. Interest	p. 89
Definition	p. 89
Effect on the Will	p. 90
Acknowledgment vs. Publication	p. 90
Witnesses' Signature in the Testator's Presence: Line of Sight vs. Conscious Presence Tests	p. 91
Holographic Wills	p. 92
Oral Wills	p. 95
Conditional Wills	p. 95
Statutory Will	p. 96
Foreign and International Wills	p. 99
Self-Proved Wills	p. 102
Limitations on Transfers to Beneficiaries Who Serve as Drafters	p. 103
Testamentary Capacity	p. 107
Mental Capacity	p. 107
Fraud	p. 111
Duress	p. 113
Undue Influence	p. 114
Right to Jury Trial in Will Contests	p. 116
Will Doctrines, Extrinsic Evidence, and Mistake	p. 119
Introduction	p. 119
Will Doctrines	p. 122
Integration	p. 122
Incorporation by Reference	p. 122
Republication by Codicil	p. 124
Acts of Independent Significance	p. 125
Extrinsic Evidence and Mistake	p. 126
Revocation of Wills	p. 131
Introduction	p. 131
Methods of Revocation	p. 133
Revocation by Operation of Law	p. 133
Revocation by Physical Act	p. 136
Revocation by Subsequent Written Instrument	p. 137
Dependent Relative Revocation	p. 137
Revival of a Revoked Will	p. 138
Presumptions	p. 140
Presumption of Revocation	p. 140
Lost and Destroyed Will Statutes	p. 141
Contracts to Make Wills	p. 143
Introduction	p. 143
Types of Contracts	p. 143
Historical Background	p. 143
Proof of the Contract	p. 144
Joint and Mutual Wills	p. 144
Majority View: No Presumption of a Contract Not to Revoke	p. 145
Breach	p. 146
After Promisor's Death	p. 146
During Lifetimes of Contracting Parties	p. 147
Defenses	p. 148
Statute of Frauds	p. 148
Statute of Limitations	p. 149
Will Substitutes	p. 151
Nonprobate Transfers Generally	p. 151
Introductory Provisions: Validity, Restrictions, Protection of Property Holder	p. 151
Nonprobate Transfers of Community Property	p. 152
General Provisions	p. 152
Consent to Provision for Nonprobate Transfers of Community Property	p. 153
Revocation of Consent to Provision for Nonprobate Transfer of Community Property	p. 155
Contracts	p. 155
Life Insurance	p. 156
General Characteristics	p. 156
Change of Beneficiary	p. 160
Effect of Simultaneous Death and Homicide on Life Insurance Benefits	p. 164
Protection of Surviving Spouse from Unauthorized Transfers	p. 165
Multiple-Party Accounts	p. 167
Generally	p. 167
Totten Trusts (Savings Account Trusts)	p. 174
Other Joint Forms of Ownership	p. 176
Joint Tenancy	p. 176
Characteristics	p. 176
Distinguished from Tenancy in Common and Tenancy by the Entirety	p. 179
Severance of the Joint Tenancy	p. 179
Joint Ownership of Safe Deposit Boxes	p. 184
Gifts	p. 186
Inter Vivos Gifts	p. 186
Conditional Gifts	p. 187
Gifts in Contemplation of Marriage	p. 187
Gifts in Contemplation of Death (Gifts Causa Mortis)	p. 188
Gifts to Minors	p. 192
Transfer of Property into Custodianship	p. 192
Custodians: Eligibility, Duties	p. 193
Custodianships: Costs, Compensation, Investments, Expenditures	p. 193
Distribution of Custodial Property	p. 193
Custodian's Liability	p. 193
California Version of UTMA	p. 194
Trust Creation and Validity	p. 203
Introduction	p. 203
Definitions	p. 203
Reasons for Establishing Trusts	p. 204
Creation of a Trust	p. 204
Common Methods	p. 204
Intent	p. 205
Trust Property	p. 206
Valid Trust Purpose	p. 207
Parties	p. 208
Duration	p. 208
Types of Trusts	p. 212
Introduction	p. 212
Oral vs. Written	p. 212
Trusts Created by Operation of Law	p. 213
Resulting Trust	p. 213
Constructive Trust	p. 214
Pour-Over Trusts	p. 216
Honorary Trusts	p. 218
Secret vs. Semi-Secret Trusts	p. 219
Modification and Termination of Trusts	p. 221
Settlor's Power to Modify or Revoke	p. 221
Settlor's Power Limited by the Trust Terms	p. 221
Presumptions of Revocability	p. 222
Methods of Revocation	p. 223
Notification of Irrevocability to Heirs	p. 224
Settlor as Sole Beneficiary	p. 225
Rights of Creditors in Face of Settlor's Power of Revocation	p. 226
Other	p. 226
Power of the Trustee to Modify or Revoke	p. 227
Beneficiaries' Power to Modify or Revoke	p. 228
Judicial Power to Modify	p. 232
Trustees	p. 235
Generally	p. 235
Selection, Appointment, and Qualification	p. 241
Compensation and Indemnification of Trustees	p. 244
Resignation and Removal	p. 247
Trustee's Standard of Care and Fiduciary Duties	p. 252
Standard of Care	p. 252
Duties Generally	p. 253
Duty to Take Control of and Preserve Trust Property	p. 256
Duty of Loyalty	p. 257
Duty to Identify and to Segregate Trust Property	p. 259
Duty with Respect to Delegation	p. 260
Duty to Report Information to the Beneficiaries and to Render Accounts	p. 260
Uniform Prudent Investor Act	p. 264
Uniform Principal and Income Allocation	p. 265
Title, Application, and Definitions	p. 266
General Provisions and Fiduciary Duties	p. 267
Decedent's Estate or Terminating Income Interest	p. 272
Allocation of Receipts During Administration of Trust: Receipts from Entities	p. 274
Allocation of Receipts During Administration of Trust: Receipts Not Normally Apportioned	p. 275
Allocation of Receipts During Administration of Trust: Receipts Normally Apportioned	p. 275
Allocation of Disbursements During Administration of Trust	p. 278
Trustees' Powers	p. 279
Generally	p. 280
Specific Powers of Trustees	p. 280
Liability of Trustees to Beneficiaries	p. 283
Liability for Breach of Trust	p. 283
Remedies for Breach of Trust	p. 284
Measure of Liability for Breach of Trust	p. 285
Limitations and Exculpation	p. 285
Liability of Trustees to Third Persons	p. 287
Beneficiaries	p. 291
Nature of the Beneficiary's Interest	p. 291
Generally	p. 291
Disclaimer by the Beneficiary	p. 292
Beneficiaries' Rights	p. 296
General Limitations	p. 296
Restrictions on Voluntary and Involuntary Transfers	p. 299
Voluntary Transfer	p. 299
Involuntary Transfer	p. 299
Remedies of the Beneficiary	p. 306
Charitable Trusts	p. 307
Introduction	p. 307
Definition of Charity	p. 307
Origins of Charitable Trusts	p. 307
Private Express Trusts Distinguished	p. 308
Application of Law to Charitable Trusts	p. 311
Charitable Purposes	p. 312
Beneficiaries	p. 314
Trustees	p. 315
Modification	p. 316
Enforcement	p. 318
Judicial	p. 318
Governmental	p. 319
Restrictions on Charitable Trusts	p. 334
Fiduciary Administration	p. 335
Generally	p. 335
Opening Estate Administration	p. 337
Generally	p. 337
Notice	p. 339
Notice in Probate Proceedings Generally	p. 339
Notice for Purposes of Commencing Administration	p. 343
Probate of Will	p. 345
Production of Will	p. 345
Attorney's Duties Regarding Safekeeping of Estate Planning Documents	p. 347
Proof of Will	p. 350
Contest of Will	p. 351
Revocation of Probate	p. 356
Appointment of Personal Representative	p. 357
Types of Personal Representatives	p. 357
Executors	p. 357
Administrators with the Will Annexed	p. 359
Administrators	p. 359
Special Administrators	p. 361
Public Administrators	p. 363
Nonresident Personal Representatives	p. 366
Qualification, Appointment, and Removal	p. 368
Generally	p. 368
Bond	p. 369
Removal of Personal Representative	p. 370
Filling Vacancies in Office of Personal Representative	p. 372
Compensation	p. 373
Tasks of Personal Representative	p. 377
Estate Management	p. 377
General Provisions	p. 377
Investments and Purchase of Property	p. 382
Operation of Decedent's Business	p. 383
Actions and Proceedings By or Against the Personal Representative	p. 384
Personal Representative or Representative's Attorney's Purchase of Claims or Estate Property	p. 385
Inventory and Appraisal	p. 386
Payment of Creditors' Claims	p. 392
Payment of Decedent's Debts	p. 402
Accounting	p. 407
Distribution	p. 410
Preliminary Distribution	p. 411
Final Distribution	p. 414
Closing the Estate	p. 415
Nondomiciliary Decedents	p. 417
Disposition of Estates Without (or with Simplified) Administration	p. 420
Small Estates Set-Aside	p. 420
Affidavit Procedure for Collection and Transfer of Personal Property and for Real Property of Small Value	p. 423
Affidavit Procedure for Collection and Transfer of Personal Property	p. 424
Affidavit Procedure for Transfer of Real Property of Small Value	p. 430
Court Order Determining Succession to Property	p. 433
Passage of Property to Surviving Spouse Without Administration	p. 436
Independent Administration of Estates Act	p. 444
Special Constructional Problems of Wills, Trusts, and Other Instruments	p. 457
Introduction: Classification of Testamentary Gifts	p. 457
Constructional Problems in the Disposition of Property	p. 458
Ademption Doctrine	p. 458
Satisfaction Doctrine	p. 460
Abatement	p. 461
Exoneration	p. 464
Constructional Problems in the Determination of Beneficiaries	p. 464
Lapse	p. 464
Class Gifts	p. 466
Health Care Decisionmaking: Planning for Disability and Death	p. 469
Legal Determination of Mental Capacity	p. 469
Powers of Attorney	p. 470
General Provisions	p. 472
Creation and Effect of Powers of Attorney	p. 474
Modification and Revocation of Powers of Attorney	p. 476
Attorneys-in-Fact	p. 477
Qualifications and Authority	p. 477
Duties of Attorneys-in-Fact	p. 478
Authority of Attorneys-in-Fact	p. 480
Relations with Third Persons	p. 481
Uniform Statutory Form Power of Attorney	p. 483
Judicial Proceedings Concerning Powers of Attorney	p. 491
Power of Attorney for Health Care Decisionmaking	p. 493
General Provisions	p. 494
Uniform Health Care Decisions Act	p. 497
Advance Health Care Directives	p. 497
General Provisions	p. 498
Powers of Attorney for Health Care	p. 500
Revocation of Advance Directives	p. 501
Health Care Surrogates	p. 505
Duties of Health Care Providers	p. 506
Immunities and Liabilities	p. 507
Judicial Proceedings Regarding Health Care Directives	p. 508
Requests to Forgo Resuscitative Measures	p. 510
Restatement (Third) of Property: Wills and Other Donative Transfers	p. 515
Restatement (Third) of Trusts	p. 529
Uniform Principal and Income Act	p. 567
Uniform Probate Code	p. 587
Uniform Prudent Investor Act	p. 623
Uniform Trust Code	p. 633
Glossary of Terms	p. 663
Table of Cases	p. 677
Table of Statutes	p. 679
Index	p. 689
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