변호사 이재욱의 미국법 이야기 (Attorney Lee's commentary about U.S. law)

CA Wills Method of Distribution Definition CA uses Per Capita and Per Stirpes as methods of distribution Per Capita: property is divided into as many equal shares as there are children or surviving descendents of deceased children, each taking one share Per Capita at Each Generation: Count number of living from the nearest generation and deceased of that generation with living issue; Each living member of nearest generation takes one share; remaining shares are combined and divided evenly among living issues of deceased members of that generation CA has Per Capita for both descendents and collaterals where all that are the same degree of kinship to the decedent take equally and those more remote take by representation (per stirpes) Term CA Wills Intestate Succession Definition Complete: person dies without a will or the will is invalid Partial: person made a will but not all of the property was disposed of by the will (no residuary clause) - Disclaimer by the residuary legatee results in partial Any property not disposed of passes by way of intestacy laws CA: Intestate estate of a married person is 1/2 of the community property and 1/2 of the quasi community property Term CA Wills Intestate Provisions: Spousal Share Definition 100% CP/QCP to surviving spouse automatically For bon CP/QC, if Decedent survived by: - No one - Spouse gets rest - One child, issue of deceased child, or no kids but parents or siblings - surviving spouse gets 1/2 of decedents separate property - More than 1 child or issue of deceased child - 1/3 of decedent's separate property Term CA Wills Intestate Provisions: Non-Spousal Share Definition CA: Permits inheritance by relaties very remote from the decedent; unike the Uniform Probate Code If no taker under the rules of intestate succession, estate echeat's to the state of CA Term CA Wills Intestate Provisions: Share of Pre-Deceased Spouses Estate Definition Factors for distribution: - Decedent received real property from pre-deceased spouse not more than 15 year prior to decedent's death - Decedent received personal property from pre-deceased spouse: 1. Written record of ownership of title 2. Aggregate value over $10K 3. Pre-deceased spouse died no more than 5 years earlier Distribution: 1. Decedent survived by issue of predeceased spouse, goes to surviving issue per capita with right of representation 2. If no surviving issue of predeceased spouse, goes to predeceased spouse's surviving parents equally 3. If no surviving issue or parent of predeceased spouse, goes to surviving issue of predeceased parents per capita with righ tof representation Term CA Wills Share of Children: Adopted Children Definition CA: Follows the Transplantation Theory for adopted children - The relationship of parent and child is deemed to exist between an adopted person and his adopted parent(s) - Adopted child had full rights to inherit by, from, and through his adopted parents (and their relatives) and they in turn are able to inherit by, from and through the adoptee - If the adopted person does intestate, decedent's property distributed as if the decedent had actualy been born to the adopted parents Term CA Wills Share of Children: Children Born Out of Wedlock Definition Child may inherit from natural parents regardless of the marital status of the natural parents Neither the natural parent nor a relative of the parent inherits from or through the child unless the parent or relative acknowledges the child and contributed to the support or care of the child Term CA Wills Advancements Definition Property given inter vivos to an heir by an intestate may be treated as an advancement of that heir's share of the estate CA: Requires a contemporaneous writing by the decedent or acknowledgement in writing by the heir for the gift to be considered an advancement Term CA Wills Capacity to Make a Will Definition Will must be executed by a: 1. Competant individual 2. With the requisite testamentary intent 3. In accordance with the prescribed statutory formalities Requisite mental capacity, Testator must posess both 1. Testamentary intent 2. Testamentary capacity Term CA Wills Execution Requirements: General Definition A will is valid if its execution complies with: 1. CA statutes for attested wills, statutory wills, or international wills 2. The law of the place executed 3. The law of the place testator was domiciled or had a place of abode or was a national at the time of execution or at time of death Term Definition Term CA Wills Attested WIl Definition Generally, a will must be: 1. In writing, signed by the testator 2. Witnessed by two persons Interested witnes: a witness who receives a beneficial disposition under the wil CA: will is valid, but the gift to the interested witness is presumed to have been the result of undue influence The gift fails unless the presumption of undue influence is rebutted, but the witness may take the amount of the devise up to any intestate share he would have been entitled Term CA Wills Holographic Wills Definition A will in the handwriting of the testator and signed by the testator, but unattested by witnesse CA: Recognizes holographic wills if the material provisions are in the testator's handwriting If no statement as to the date of hte execution and if the omission results in 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 the execution of the other will Term CA Wills Codicils Definition CA: "will" includes a codicil A codicil is an addition to or alteration of a will and must be executed with the same formalities Absent contrary language or inconsistency, a codicil modifies rather than replaces the will's provisions A validly executed codicil validates an invalid will if the codicil refers to the will with sufficient certainty or if on the same paper as the will Term CA Wills Revocation and Revival: Types Definition 1. By subsequent act 2. By physical act 3. Revocation due to changed circumstances 4. Dependent relative revocation Term CA Wills Revocation and Revival:By Subsequent Will Definition A will may be revoked in whole or in part by a subsequent will that revokes the prior will or part of it either expressly or by inconsistency Term CA Wills Revocation and Revival: By Physical Act Definition A will may be revoked by being burned, torn, cancelled, obliterated, or destroyed with the intent and for the purpose of revoking it By either the testator or another person, in the testator's presence, and by the testator's direction - Testator must have same testamentary capacity to revoke a will as is needed to execute a wil Cancelling a wil: must be some defacement of words or signature of the will, coupled with the intent to revoke - Where testator crossed out several legatees and wrote in penceil notations changing the amounts, intended to call a lawyer to change the will but didn't, court found no revocation Partial Revocation: may be made by crosing out or drawing lines through particular clauses in the will If a will known to exist can't be found,last known to be in the testator's possesion, testator was competent until death, will presumed destroyed by testator If alterations made after execution, changes are effective if the remainder standing alone would be an understandable testamentary disposition Term CA Wills Revocation and Revival:Revocation Due to Changed Circumstances Definition CA: Allows for implied revocation of any disposition or appointment of property made to the testator's former spouse if the testator's marriage is subsequently dissolved or annulled - This proviion revokes gifts to "my spouse's children" or "my spouse's issue" upon dissolution of the marriage, unless contrary intent is expressed in the will Term CA Wills Revocation and Revival:Dependent Relative Revocation Definition A testator may revoke an old will with the intention that the newly executed will replaces it CA: If the new will is not made or is invalid, CA will admit the revoked will to probate on the theory that the testator would only have intended the old will to be revoked if the new will were valid - The revocation occurred through a mistake of law or fact - Doctrine sometimes called the conditional revocation Term CA Wills Disposition of Other Writings: Incorporation by Reference Definition Most states allow a testator to incorporate by reference a separate document into a will when certain conditions are met The separate document need not met the execution requirements for a will CA: A writing in existance when a will is executed may be incoproated into the will by reference if the will manifests this intent and describes the writing sufficiently to identify it Term CA Wills Construction of Wills: Rules of Construction Definition A will is construed to pass all the testator's separate property and 1/2 of the commuity property and quasi community property belonging to the decedent at death, including property aquired after the execution of the will and property acquired after the testator's death In accordance with the rules for determining relationships for purposes of intestate succession, half bloods, adopted persons, persons born out of wedlock, stepchildren, and foster children are included in terms of relationship in wills and trust instruments Term CA Wills Classification of Legacies and Devises Definition Specific Gift: transfer of specifically identifiable property General Gift: transfer from the general assets of the transferor Demonstrative Gift: general gift that specifies the fund or property from which the transfer is primarily to be made Pecuniary Gift: gift that is either expressly stated as a fixed dollar amount or is a dollar amount determinable by the provisions of the instrument Residuary Gift: transfer of property that remains after all specific and general gifts have been satisfied Term CA Wills Ademption: By Extinction and Satisfaction Definition When a testamentary gift is adeemed by extinction, it fails This occurs when property specifically bequeathed or devised is not in the testator's estate at the time of the testator's death CA: If after execution of a will containing a specific devise, the decedent alters but does not wholly divest his interest in the specifically devised property, the beneficiary of the specific gift has the right to the remaining interest of the trasnferor in the property - Applies only to property specifically described in the will, not to general or demonstrative dispositions Doctrine of Ademption by Satisfaction is analogous to the doctrin of advancement in intestate estates Term CA Wills Class GIfts: Lapse and Anti-Lapse Definition Class gift exists when a testator makes a gift to a number of persons as a group and the group may either increase or decrease in number CA Anti-Lapse: A statute that, in some instances, pass the gift that would otherwise have lapsed to issue of the deceased beneficiary CA: Anti-lapse statute states that, unless a different interpretation is made or required by the will, if a beneficiary dies before the testator, leaving issue who survive the testator, the isue take the estate as the beneficiary would have done if the beneficiary had survived the testator - If there is more than one residuary beneficiary, and hte share of one residuary beneficiary fails, that share passes to the other residuary beneficiary in proportion to their respective interests in the residue Term CA Wills  Probate and Will Contests: Grounds for Contest of a Will Definition Grounds to contest a will generally include: Lack of testamentary capacity Undue influence Fraud Mistake Term CA WIlls Probate and Will Contests: Undue Influence Definition Any species of coercion that subverts the sound judgment and genuine desire of the individual constitutes undue influence There is a presumption of undue influence where the contestant of the will can show all of the following: 1. a confidential or fiduciary relationship existed between the testator and the person who allegedly exerted the undue influence 2. person actively participated in preparation or execution of the will 3. person unduly benefited substantially from the will If undue influence is alleged for part of the will, the court may reject that part and admit the rest to probate If entire will is tainted, all property passes by intestacy Term CA Wills Will Substitutes: Inter Vivos Gifts and Gifts Causa Mortis Definition Absolute title to the property passes at completion of the gift A valid gift generally requires 3 elements: 1. Present donative intent 2. Delivery (actual or constructive) 3. Acceptance by the donee Gift Causa Mortis: gift of personal property made by the fonor in anticipation of imminent death from a specific cause - May not be revoked by donor's will; passes outside of probate - Revocatiom is automatic if the donor does not die as anticipated Term CA Wills Multiple Party Accounts: Savings Accounts Definition Savings Account Trus: one type of revocable inter vivos trust that may be used as a substitute for a will Totten Trust: A settlor may create a savings account trust by depositing money in a bank in the name of "A in trust for B" - Recognized in CA - In CA, the Totten Trust account can be reached by the decedent's creditors, or by a surviving spouse under the right of election or through community property rules Term CA WIlls Protection of Surviving Spouse Definition The comunity property concept in CA prevents the decedent from totally disinheriting a spouse or registered domestic partner, so there is no right of election A spouse who has been ommitted from the will executed before the marriage may also be protected Waiver of All Rights, such as in a complete property settlement agreement, means a waiver of: 1. right to take community property or QCP against the will 2. right to take statutory share of an ommitted spouse Term CA WIls Protection of Surviving Spouse: Omitted Spouse Definition If decedent fails to provide in the testamentary instrument (will or irrevocable trust at death) for the surviving spouse who married the decedent after the execution of all of the instruments, the omitted spouse receives the folowing: 1. 1/2 community property 2. 1/2 quais community property 3. a share of the separate property equal to receipt under intestacy, but only up to 1/2 of the value of the separate property in the estate Term CA Wils Protection of Surviving Spouse: Omitted Children Definition If decedent fails to provide for his child born after the execution of in all testamentary instruments, the omitted child will receive a share equal to what he child would have received in intestacy Omitted child's share is first taken from decedent's estate that was not disposed of by will or trust, if any, and then from the shares of all beneficiaries under the decedent's testamentary instruments proportionately, as far as necessary to satisfy the omitted child's share Child does not receive share if: 1. omitted intentionally 2. decedent had other children and decised substantially all to other parent 3. transfers outside of estate in lieu of inheritence