Test Tips Use CA law, but consider all arguments you could make to CA court in good faith.

When considering who takes, consider public policy  intent, fraud, and administrative costs. Put rule in its own sentence before applying it. Next sentence – apply and conclude. Non-probate and probate-testate property both require documents. You don’t have heirs until you die, you have “heirs apparent.” What you expect to inherit is an expectancy  cannot usually be transferred b/c not a property interest. When gift fails for want of delivery, try to argue it was a trust and settlor is trustee transferring property to himself with intent to create a trust, holding it for the benefit of someone else (but most courts won’t buy this argument). Start with non-probates, then probates, then intestacy. Take the issues in the order they appear on the exam. For trusts, lead with the common law, then consider modern trend. For wills, use CA law.


Issue: Who gets your stuff when you die? It depends if it’s probate or non-probate. Non-Probate (4 kinds)  this is “opt-in” b/c you must execute instrument (these are will substitutes  they act like a will but don’t’ have to go through probate) (1) Joint Tenancy  decedent’s share of joint tenancy extinguishes and he cannot pass interest, shares for other joint tenants are recalculated (right of survivorship, decedent’s share is extinguished; nothing’s being transferred, just shares recalculated) • Community property with right of survivorship  get double step-up and avoid probate • Multiple party bank accounts  historically always pick joint tenancy b/c protects banks, but modern trend says there is a presumption that inter vivos the parties owned in proportion to their contribution and after death there is presumed right of survivorship (like payment on death clause). (2) Life Insurance  K between insurance company and insured, not a transfer from decedent but from insurance company to a 3rd party beneficiary  in CA also any K with a payment clause (like pension plans)


Only non probate property not automatically revoked from spouse in divorce.

(3) Legal Life Estates & Remainders  must be written in deed (4) Trusts (primary mechanism)  bucket • 3-party transaction  (1) settlor (gives property); (2) trustee (holds legal title, can’t use for own benefit, has legal obligation to create income); (3) beneficiary (holds equitable interest) • Ok for one person to wear all three hats so long as there is at least one other beneficiary (need to be able to sue someone) • “A trust will not fail for want of a trustee”  if trustee dies, court will appoint successor, or trust document can specifically provide for successor. • Trustee must accept position, but then can’t walk away w/o court approval. • Trust only applies to property you own at moment you make trust; must continuously update. • Settlor has no standing to sue trustee for not doing a good job or for giving to beneficiary early b/c settlor has made a gift and has no remaining interest in gift, unless it is a revocable trust. • Resulting trust  not a trust, but if settlor makes trust that fails, court will create a trust so trustee doesn’t end up with property. (Sibling of constructive trust – judicial remedy). Property will go back to settlor’s estate and it will fall into probate  first to residuary of will then to intestacy. o Charitable trusts can fail when the purpose for the charity is satisfied. o Cy Pres – To the extent you have a charitable trust, and the particular purpose becomes impossible, look at the general purpose that the particular purpose is in, and see if you can find another specific purpose in the same general area that the trust can be shifted to before imposing a resulting trust. Types of trusts Inter vivos (typical)  stuff put in bucket during life, avoids probate Issue is, is it revocable or not? At common law it is NOT revocable b/c it’s a gift and you’ve relinquished dominion and control over the asset. This is the default unless you specify that it is revocable. If you say it is revocable  If you are the Settlor and Trustee and Life Beneficiary, with a remainder beneficiary, you haven’t passed anything to the beneficiary, then this actually looks like a will with a residuary. If B hasn’t taken anything, is this really an inter vivos transfer, or is it a testamentary transfer? If it’s a testamentary transfer it requires a writing. 2

Rule: Revocable trusts are fine, even if you are the Settlor, Trustee, and Life Beneficiary b/c intent is clear and potential for fraud is low. How do you revoke a revocable trust? It’s up to the Settlor. If Settlor says it’s revocable, any and all acts that settlor means to revoke are revoked. But revocation requirements mirror creation requirements. If it’s real property that required compliance with statute of frauds and writing, then you also need writing to revoke. Can revoke orally if not real property. As a general rule, the wills revocation methods are sufficient to revoke. BUT most trustees require that terms of trust say there must be a writing delivered to the trustee so trustee has notice. Testamentary  stuff put in bucket upon settlor’s death through his will, does not avoid probate because made via will, must be in writing. If no trustee appointed, personal rep is trustee. Power of appointment  power to revoke in the hands of someone else. Utata  at death, does not avoid probate. Uniform testamentary additions to trust act
A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his or her estateat the time of his or her death shall be distributed to the Trustee of the trust. Such device was always void at English common law, because it was not deemed as a binding trust, in that the testator can change the disposition of the trust at any time and therefore essentially execute changes to the will without meeting the formalities required for the change.

UTATA (Uniformed Testamentary Additions to Trust Act) • Try to make it easier to validate pour over clause • CA UTATA: (last page of our statutory handout) o Implicit in pour over: § (1) Pour over clause (will)– ids trust § (2) Terms are set forth in an instrument other than a will (if they were it would be a basic testamentary trust) o (2) Trust instrument is executed (signed) prior to or concurrently with testators execution of the will § Okay if unfunded until death § Subsequent amendments are valid regardless of when created o If not signed – back to CL o If cant – fail – failed gift – failed gift rules o No probate supervision for life o Just to the original signing of the will Property going through pour over clause • Doesn’t avoid probate


Future profits are not a property interest that can be put in trust (but may be able to if it’s classified as a gift) Expectancy is not property interest that can be transferred. This was precatory gift. (Like if W makes will saying he gives all the property he expects to get from his mom when she dies to Lulu) Ascertainable beneficiary Clark – Provision in will disposing tangible personal property to personal rep to give to friends as he sees fit. trustee to beneficiary (3) Gift bifurcated into Principle/Income Trustee has legal obligation to use prop to generate income Trust is an ongoing gift Creating a Trust Intent to make a gift in trust (don’t need to specifically state. almost per se evidence that trust is being created) Jiminez definition  anytime one party transfers property to a second party for the benefit of a third party Precatory trust  not a trust.• If testamentary trust – stays in probate • If not – just goes through Want to try to give effect to the testators intent still – can fail – but look at the 3 ways to validate You can combine and such to get it to work: use republication and UTATA How are trusts bifurcated? (1) Recipient bifurcated into Trustee/Beneficiary Trustee holds legal title Beneficiary holds equitable title (2) Delivery bifurcated into Funding/Ascertainable Beneficiary Funding is when an asset is transferred to the trustee 2-step delivery  settlor to trustee. just a gift with a hope or wish that it will be used in a certain way (watch out for this!) Jimenez – Grandma gave money to dad to use for daughter’s education. courts require additional information to show intent. Funding  trust created when something put in bucket for benefit of 3rd party. but if trust language is used. grandma hoped dad would use it for daughter’s education. Where settlor is also trustee. Dad treated money as his own and daughter sued dad. but he had no legal obligation to do so. Make sure it’s not a gift or a gratuitous promise. This is a trust b/c 3 party transaction with 4 .

But does trust fail? Yes. Issue. arguing it was a precatory trust. trust terminates and property distributed to ascertainable person. So son would get to keep property and remedies don’t apply. Is a pet an ascertainable beneficiary? Trust for lifetime of dog. and they agree that after the treatment son would give it back. Personal rep tried to keep. She funds trust by transferring deed. Is this a valid trust? No b/c dog doesn’t have standing to sue.rep acting as conduit. kid refuses to return. and upon death. not a real trust so not subject to statute of frauds. HYPO: Mom transfers house to son when she’s sick to avoid bank going after property to pay medical bills. then it is actually a gift b/c the trust isn’t enforceable b/c SOF requires writing. “Friends” are not ascertainable beneficiaries. Resulting trust doctrine kicks in. Should have said to my son as trustee. but court characterized this as an honorary trust  not a real trust. tells kid she wants him to have her real property if she dies but if she beats cancer she wants kid to give it back. Writing? Only required if there is real property b/c of statute of frauds or testamentary b/c it’s through a will HYPO: Mom has cancer. 5 . but it failed b/c it was for real property and not in writing. children (including unborn ones). or relatives can all be ascertainable beneficiaries. Honorary trust can also be used for maintenance of your gravesite. Court assumes remainder beneficiary will watch over trustee. Modern Trend Remedies  constructive trust b/c unjust enrichment. and dog still gets gift b/c it was for a specific honorable purpose. But courts will not appoint successor trustees for an honorary trust – only lasts for length of time trustee will honor the terms of the trust. Or resulting trust and trustee must give property back b/c trust failed which also isn’t subject to statute of frauds b/c not real trust. Deed says mom to son and son orally agreed that if she beats the cancer he’ll transfer it back. Money would go to remainder of trust and then use resulting trust doctrine. We need to know who has standing to take under the trust and to sue the trustee b/c settlor can’t sue. and separate document with terms of the trust. Rule  if you have an inter vivos trust with respect to real property that fails for want of writing. Gravesite does not have standing to come in and sue. not an ascertainable beneficiary but courts allow it. She wanted to make a trust. Exception to rule that trust won’t fail for want of a trustee. They’re not legally required to honor b/c there is no one with standing to hold them to it. Equity will not serve ones who comes to court with unclean hands. When mom recovers.

This is a semi-secret trust with a patent ambiguity. If acting in good faith Trustee is protected. Settlor might set forth particular standard that Trustee should keep in mind when exercising discretion to grant disbursement. Once a trust is validly created. and then after that can exercise discretion (Reasonable & in good faith) Duty to exercise discretion in a Rx way and w/ good faith  if trustee properly inquires. but can impose resulting trust. it is hard to nail them for abuse of discretion Settlor can effect exercise of discretion in 2 ways: Settlor can say trustee has sole and absolute discretion  doesn’t really mean that b/c it would be a precatory trust. Duty to inquire is a heavy burden. won’t take extrinsic evidence with patent ambiguity so court doesn’t know who beneficiaries are so can’t impose constructive trust. Secret trust  Unclear from four corners of the will whether it is an outright gift or trust (latent ambiguity). so this trust fails. but for testamentary trust the terms of the trust must be in writing. what is the extent of beneficiary’s interest? Look at the words of the trust to determine if: Mandatory  “shall”  if T doesn’t do it T can be sued for breach of trust Discretionary  within Trustee’s control. This gives rise to either a semi-secret or a secret trust. but modern trend is that courts don’t distinguish b/t latent and patent ambiguity and you can let in extrinsic evidence. It is evidenced by the four corners of the will and you get a resulting trust. Difference  courts will impose constructive trust on secret trust and resulting trust on semi-secret trust. At CL. Before exercising discretion. Trustee must exercise judgment in line with Settlor’s intent to determine whether or not to make disbursement of principle. just in good faith.HYPO: T leaves in her will estate to Reverend to distribute at his discretion in line with how T expresses her intent. and will references trust but doesn’t state all the terms. Just means Trustee doesn’t have to act reasonably. “For beneficiary’s comfortable support and maintenance”  keep beneficiary at standard of living he had at the time he became a 6 . so you can always impose constructive trust. burden is on Trustee to follow up. T must exercise due diligence. check in with Beneficiary – there is a duty to inquire as to B’s status so in exercising discretion he can do so in an informed manner. Semi-secret trust  trust where there has been an oral agreement to create a trust. Sounds like he is trustee of testamentary trust. Ex: Trustee sent B questionnaire  this is not enough to satisfy inquiry.

Issue is you can’t get minors or unborn children to consent to termination. so might not want it to end. If standard of living begins to slip. Many Settlors put spendthrift clause in trust that says B cannot voluntarily or involuntarily transfer interest. If it’s an inter vivos irrevocable trust.beneficiary. or should some be able to pierce? If W runs off with Lulu and leaves G. it ends. If it’s an inter vivos revocable trust. but if interest is discretionary. we don’t want to let Settlor hide behind the Trustee’s discretion. If Beneficiaries and Trustee agree. creditor can force it. Spendthrift clause puts up a wall and prevents creditor from taking from trust. If beneficiary’s interest was mandatory. should G be able to go after his interest in the trust? Does she have special standing? categories of creditors that can pierce: Ex-spouses entitled to alimony Children entitled to child support Government – if you owe taxes or Medicaid services Creditor who provides basic necessities  doctors Tort creditors are subject to spendthrift clause If there is a mandatory interest. creditor can force trustee to give to creditor. creditor cannot force Trustee to give to creditor. Creditor can reach any property that can be transferred Creditor steps into shoes of beneficiary. Trustee has duty to give principle to B to maintain standard of living. Courts can appoint guardian ad litem for minors and unborn children who can consent for them if it is in their best interest. creditor can force Trustee to exercise discretion to pay creditor. and Settlor exercises right to revoke. Public policy issue  should all creditors be subject to spendthrift clause. they can terminate. so even if interest is discretionary. even if the B is a Settlor. We don’t want to let Settlors hide assets in a trust. If beneficiary could have forced it. must wait till beneficiary has it. If B is Settlor. 7 . we can force the Trustee to give the property to the creditor. Settlor has no interest. Trustees make money from managing trusts. Termination of a Trust  ends when bucket is empty When should we permit premature termination? (Consider (1) is the trust revocable or irrevocable? (2) is Settlor alive or dead? (3) Is there an unfulfilled material purpose? (4) All contingent on agreement of all Beneficiaries.

then to the kids. If G and kids get together and agree to let Trustee use principle to give to G for her medical expenses. Unfulfilled material purpose: Spendthrift clause Discretionary as to principle Support trust (Trustee’s ability to disburse is limited to amount necessary for support) Modification of the Trust  Requirements All beneficiaries must consent Must have been unforeseen change in circumstances Which is materially frustrating Settlor’s intent Court can order modification of terms of Trust to promote Settlor’s intent. Says mandatory as to the income but forgot to give her interest in the principle. If S is dead – Claflin Doctrine  beneficiaries can force premature termination as long as there is no unfulfilled material purpose. (2) pay creditors. H dies intestate. there is a better chance  Divine case – religious leader had T killed before she could change her will to exclude him Mahoney – W kills H. (3) distribute remaining probate property to those entitled to it either by the will or through intestacy 8 . antilapse. can Settlor override Trustee’s objection? Yes. K’s with Payment on Death clauses  these are valid non-probate transfers  for will substitutes apply wills doctrines (lapse. even though S has no interest. Income from trust not enough to provide. HYPO: W finds out he has cancer. to G for her life. court probably won’t use. so wife would collect. but Trustee can’t use principle for her benefit.What if all beneficiaries intent. abatement) Probate (default)  Beneficiary must survive to take (Probate is administered by personal representative: (1) inventory assets. If there is. if S sides with B’s it removes T’s right to block it. but if it’s the fault of a 3rd party. T can block. B’s consent G came down w/ cancer (unforeseen) W’s intent was to take care of G Constructive Trust  court may change beneficiary  requires (1) unjust enrichment and (2) wrongful conduct by 3rd party who seeks to benefit If it’s T’s fault. sets up trust for his life. but Trustee argues it is counter to Settlor’s intent  can beneficiaries force Trustee to terminate? If Settlor is alive and agrees with B’s. Then G gets cancer and her expenses go up. Court imposes constructive trust (fiction) and gives to other beneficiaries.

BOP shifts to D to show no undue influence. undue influence Requirements: Confidential relationship  low threshold D active in procurement/execution of document D unduly benefits Objective – what would D take if will not valid (intestacy) Subjective – does relationship justify gift? * If elements met. Alternative argument requirements: susceptible to undue influence Influencer had motive to exercise undue influence D had opportunity to exercise influence Disposition is result of influence fraud/duress 9 .Will (testate) – taker is devisee – traditional way of opting out of intestacy Requirements: Testamentary capacity (threshold very low) 18 years Sound mind at time of execution Understand nature/extent of property Know who beneficiaries/issue are Understand disposition of property – nature of testamentary action being performed Know how it relates to forming orderly disposition of property Defects in capacity (strike only portions of will affected by defect): insane delusion  CA approach is more protective of T’s intent than most states  if there is any factual basis to support the belief it is NOT an insane delusion (other states use std of any Rx person could come to same conclusion then not delusion (rational basis test)) Must show (1) insane delusion at time of execution and (2) delusion caused defect (but for) Even if you are generally insane but had a moment of lucidity when you made the will. potential for fraud) unless mistake rises to level of insane delusion *Is it an ID or a Mistake? Only fix mistake if it is an ID. Can also consider if traumatic event started it (prostate surgery in Honigman) Religiously based beliefs not subject to insane delusion analysis Can’t invalidate will based on mistake (expensive. Factual evidence must have sufficient nexus w/ purported defect. you have testamentary capacity.

court can strike the wrong words and see if there is enough left to determine intent. How long? Rx time. (like wrong number in house address in will) Signed by either (1) T. and (2) judicial interpretation of what degree of compliance with formalities is required Wills Act Formalities Requirements: Writing Misdescription doctrine: if you have a validly executed will that has a misdescription. (2) present at same time. 10 . in T’s presence. Same requirements necessary for revocation Strong presumption of capacity. 2 Kinds Fraud in the inducement (trick ahead of time) Fraud in the execution (trick into signing) * Only strike portion of will affected by defect (if lacking general testamentary capacity. (2) another in T’s name. (3) must witness either signing or acknowledgment of will. This is delayed attestation. Tortious interference w/ expectancy  can try this if other defects due to 3rd parties fail (Anna Nicole Smith) Advantages: Avoids no contest clause Can get punitive damages Statute of frauds longer b/c tort instead of probate. strong evidence needed to rebut.Elements: Intentional misrepresentation Made with the intent to influence T’s testamentary scheme That causes T to dispose of prop in a way he wouldn’t have otherwise. by T’s direction. (3) by conservator pursuant to court order Signature can be anywhere on will Any mark you make that you intend to be a signature is Witnessed (1) by at least two people. Proper Execution  depends on (1) wills act formalities. (4) must understand instrument being signed is T’s will (CA’s rules are easier. entire will void) Lawyer drafting will can use his judgment to determine capacity. Remedy  Constructive trust  more likely if there was wrongful conduct by 3rd party who is unjustly enriched. Witnesses should sign while they still have vivid recollection of what they are signing. but must be strictly complied with) CA does not require that witness sign in T’s presence.

Telephonic presence? Not ok under strict compliance and probably not ok under substantial compliance. isn’t in room when T signs. takes him longer. Groffman  T has two witnesses accompany him across hall to sign will.Interested witness: If a witness is also a taker under the will. but if you die during signing not ok under strict compliance. there is a conflict. smoothes out probate administrative process Judicial Interpretation  what degree with the wills act formalities is required? *Always start with strict compliance. Took strict interpretation. Functions of Requirements Evidentiary (writing) Protective (witness)  ensures voluntary intent (no coercion. Modern Trend: less stringent than Groffman. Electronic signature? Not ok. signer understands) Ritualistic  impresses on T finality and gravity of act Channeling  we want to channel people to lawyers to ensure their wishes are expressed in way that maximizes probability that they’ll be carried out. W2 has bad leg. For witnessing will. Will not properly witnessed b/c 2 witnesses not in T’s presence at same time when T signs and acknowledges. Substantial compliance  clear and convincing evidence that decedent intended the document to be his will clear and convincing evidence of substantial compliance with wills act formalities (must be close to having writing/signed/witnessed) 11 . but should be able to if he looks Conscious presence test  consider totality of circumstances to see if each party was consciously aware the other was signing (CA) Short form of signature? Ok if this is intent. allows substantial compliance. 2 approaches to presence: Line of sight  doesn’t actually have to see witness sign. but they must be complied with strictly. Taker will be purged of excess of what he would have gotten under intestacy or under a prior will. CA requirements are not as harsh. but not tested yet. then consider substantial compliance and harmless error.

(CT is only state that uses. Must show clear & convincing evidence of scrivener’s error and clear and convincing evidence of effect on T’s intent. Personal usage doctrine CA Rule: Use extrinsic evidence to determine if ambiguity. only need to show that there is clear and convincing evidence that T intended the document to be the will. Curative Doctrines under Strict Compliance Scrivener’s Error  if the invalid execution is the lawyer’s fault. but actually is this. But can only use 12 . there is ambiguity and you can use extrinsic evidence. Ambiguity = any time there is express language in will reasonably susceptible to 2 or more interpretations. but can argue to CA ct in gf b/c judicially adopted) Extrinsic Evidence  court should generally be opposed to b/c properly executed will is best evidence of intent.Flexible strict compliance  strict compliance. CA claims to be strict. but uses substantial compliance on certain doctrines. don’t take extrinsic evidence unless there is an ambiguity (below). fix the mistake. (From Russell dog case). Consider purpose  Construction  only 4 corners of document. Consider type of ambiguity if construction Patent  obvious from 4 corners of the document Latent  arises when court tries to construe and give effect to terms of a will (like “I give my property to my favorite student Brittney” but there are 2 Brittneys in the class) Validity  take extrinsic evidence Misdescription doctrine Equivocation doctrine. If there is. Only consider if there is an ambiguity. use extrinsic evidence (doesn’t matter if latent or patent). Harmless error (aka dispensing power)  courts can dispense with anything they need to figure out the will – same as substantial compliance but eliminates 2nd element. Favor extrinsic evidence of circumstances surrounding T at time of execution over selfserving declarations b/c of concern for fraud.

doesn’t have to be created before will is executed. Expanding Scope of Will Incorporation by Reference Requirements: T intent to incorporate by reference is expressed in will Will describes document to be incorporated with reasonable Document must be in existence at time will is executed (most important requirement) Application: first 2 requirements applied loosely. Aggregate of all gifts cannot be greater than $25K and individual items cannot be worth more than $5K. can make list that serves as codicil but doesn’t have to meet requirements of will. Doctrine of Republication by Codicil Must have validly executed codicil Re-executes and re-dates underlying will Acts of Independent Significance  softens rule that you must execute codicil every time you change a gift or beneficiary Considerations: What is the referenced act? 13 . will controls. 3rd strictly. Requirements: Unrevoked will that refers to writing Writing is dated Writing is handwritten or signed by T Writing describes items and recipients with Rx certainty extrinsic evidence permitted to help meet requirements and strict compliance with requirements not always needed (flex strict compliance) 1. ($$ does not constitute tangible personal property). What Constitutes a Will? Doctrine of Incorporation  any pieces of paper present at time of execution and intended to be part of the will constitute the pages of the will. Purpose: permits documents already in existence to be incorporated. If will references. so long as will says you’re creating a list. Tangible Personal Property List: for tangible property.extrinsic evidence consistent w/ one of the possible interpretations. BUT if there is an inconsistency with will.

this tort can result in punitive damages SOL longer b/c tort not probate No Contest Clause  clause in will that if you contest you get nothing Softening doctrines: Pretermitted Spouse Protection Doctrine: If you have a will before you get married. but assistant changes each year. but if W gets new assistant b/c old one graduates. Holographic Will  only writing and signed (no witness). home-made will by lay person (recognized by ½ states. including CA) Requirements: Written in testator’s handwriting (makes fraud more difficult)  all dispositive provisions must be in T’s handwriting (who gets what) Testamentary intent that document be probated as a last will & testament  intent must be either (1) in T’s handwriting or (2) in form language of commercial will.Does the act have significance independent from the will? Act must be performed for valid reason aside from affecting who takes what under the will. get married. What is the potential for fraud? HYPO: W puts in will $1000 to research assistant. so a no contest clause does not apply Unlike will contests. Negative inheritance CL Rule: T cannot disinherit an heir w/o affirmatively naming others to give property to UPC/Modern Trend Rule: allows for express exclusion CA Rule: consider intent. then die before changing will. If W fires assistant for purpose of changing beneficiaries. This is not an attack on the will. this is not independent significance. 14 . can argue CL and modern Tortious Interference with Expectancy COA Anna Nicole Smith  sued kids of husband for trying to hide assets. it is on a third party. this is. Used when things change after the will is made (Republication by Codicil (look back to will) and Incorporation by Reference (look back to not will) are look back doctrines). this doctrine protects spouse.

Contracts Relating to Wills 2 Types: K to put provision in will  must either be in writing or referenced in will but can also show clear and convincing evidence to enforce K (CA’s flex strict compliance approach). but in attested will stronger argument that this is valid condition precedent. Probably not valid holographic codicil b/c W’s intent for holographic part must be in handwriting or as part of from will. but it is helpful. If there is an undated holographic will and a dated attested will then attested will prevail unless it can be proved that holographic came after attested (but if not inconsistent can give effect to both) If T may have lacked capacity at time holographic will was made. all my possessions to Lulu”  in holographic wills we assume this is not a condition precedent and he’s just expressing his fear. Signature  anything T intends to be his signature and must actually be T’s (can’t ask someone else like in regular wills) Kimmel – Dad signed letter giving stuff to his kids as “father” – this is sufficient signature b/c that’s what he intended it to be. Condition precedent  like “if I don’t survive the cruise. High opportunity for fraud. CA does not require dating. use the printed words to determine the context in which the handwritten words are being used to help ascertain testamentary intent. Later adds at bottom $10K to Lulu. Contextual approach  If T attempts a holographic will on a document that has printed material on it. if there is an ambiguity in the handwriting regarding testamentary intent. 15 . But that is only an argument in CA. So you can change valid holographic will with handwriting. we presume it was executed when he lacked capacity and it is invalid.HYPO: W has lawyer-drafted will. unless it can be proven it was executed at a time T had capacity. Presumption is rebuttable by preponderance of the evidence. Holographic Codicil Dukeminier – any handwritten interlineation to a holographic will is a valid holographic codicil. Not sure if a CA court would agree since the statute specifically says in the testator's handwriting or the printed words of a form will.

In & Out is different b/c NOT PUBLICLY TRADED COMPANY  gifts of privately held stock are de facto specific gifts. so 2nd will is still probated. then (3) beneficiary gets benefit of change. which is less strict than for regular wills where a codicil must be a valid will in and of itself meeting wills act formalities. Executor must go out and buy stock to give to B and E. it is probably codicil Handwritten changes to a valid holographic will counts as a valid codicil. crosses out $10K and writes $1 and initials. so they don’t have to give them if they don’t own them at time of execution. May be valid if original will was holographic. This is a handwritten interillation and is not a valid holographic codicil. HYPO: W types in will “I give $10K to Eric” then gets mad at Eric. Stocks as Gifts  difficult b/c by their nature they change CA Rule for Stock Splits: If (1) T owns matching shares at time of execution and (2) change in stocks is initiated by the corporation. but if you just revoke the codicil the underlying will remains in tact If second instrument has residuary clause. PROBATE = CONSTRUE AND GIVE EFFECT TO Write a new valid will Express revocation Implied revocation if new will is inconsistent Codicil  must be valid will meeting all requirements that modifies or partially revokes a prior will If you revoke a will all codicils associated with it are also revoked. 16 . Revocation (testamentary act requiring capacity. THEN PROBATE IT.K not to revoke will  K not to revoke must expressly be put in will. If there had been a stock split then executor still needs to give 100 shares. W dies. if not. then beneficiary of first will sue under K using 1st will as evidence. it is probably whole new will. You can make an attested codicil to a holographic will and vice versa. Remedy for breach  this is breach of K. Hypo: W gives 100 shares Amgen stock to B and 100 of In & Out Stock to E. some jx make it easier to revoke than to write) – IF A VALID WILL IS NOT REVOKED. W doesn’t own either of these. Court will impose a constructive trust. not 200 b/c W didn’t own matching shares at time of execution. not implied simply because mirror or joint wills.

Non-Probate Property  if you execute before or during marriage. Not rebuttable as to wills.Physical act = (1) destructive act and (2) intent to revoke CL: destructive act must affect part of written will CA/modern: will doesn’t have to be destroyed by T. Only applies to spouse. Revocation by Presumption Doctrine  use if: Will was last in T’s possession Can’t find will after death Only if can’t find either original or duplicates There is rebuttable presumption that will is revoked If not rebutted. but rebuttable with clear & convincing evidence (but doesn’t include life insurance. and provisions in will are revoked by operation of law. Issue w/ partial revocation  they are implicitly new gifts b/c if something is crossed out that gift goes to residuary or intestacy. Destructive act must be done by T (not his attorney. will goes into intestacy If rebutted. not to spouse’s issue. etc) Partial Revocation by Act  like drawing a line through part a sentence in a will. Revocation by Operation of Law When there is a divorce before will is changed. most states don’t recognize but CA does. Lost Will Doctrine applies If T had testamentary capacity until time of death. then revocation is ineffective and is ignored (exception to general rule that we don’t correct mistakes). instrument is revoked by operation of law. Court will take extrinsic evidence to show revocation by act. surviving spouse treated as having predeceased. Requirements (think of as 2 doctrines depending on how revoked): Valid revocation Based on a mistake T would not have revoked but for mistake (causation) Generally only permitted by courts in 2 circumstances b/c of high potential for fraud  17 . Dependant Relative Revocation (DRR)  If T revokes based on mistake and wouldn’t have revoked but for mistake. assume there was intent to destroy and testamentary capacity. so that must be affirmatively changed).

Must prove by clear or convincing evidence or else treated as no will and intestate. If revocation is by WRITING  there is a mistake specifically recited in terms of the revoking instrument AND mistake beyond T’s knowledge Ex: T executes instrument revoking gift to sister b/c sister is dead and giving gift to Pepp.” T crosses out $1000 and writes in $1500. 18 . Then consider intent -. This is partial revocation. Possible writings  By transferor – contemporaneous with inter vivos gift By transferee – any time By transferor – in instrument saying that if inter vivos gifts are made then they will count against gift.$1500 is closer to $1000 than to $0. Lost Wills Doctrine  Court will use extrinsic evidence. If we ignore revocation. Doctrine of Satisfaction  Inter vivos gift does not count against testamentary gift unless there is writing expressing that gift count against time of death share. Must show that but for mistake. but if no revocation. and B1 would get nothing. taker gets nothing.If revocation is by ACT  only where there is alternative plan of disposition that fails – like attempt to make new will or codicil OR Ex: Strike out name of B and write in new name. Like advancement for intestacy (1st two writings apply) Doctrine of Satisfaction applies only to general gifts b/c for specific gifts addemption kicks in. or drafts. taker gets gift. DRR allows gift to be restored to B1. copies. This is a revocation based on a mistake (failed attempt at alternate disposition b/c thought he had valid holographic codicil). the first will can be revived with evidence that T intended the first will to replace the second. but this is difficult (only happened once in CA) Spectrum analysis: If part of the will is revoked. Can try to argue that there is clear & convincing evidence of a mistake that doesn’t fit into 2 categories. but it is not valid codicil. T would not have revoked. HYPO: Will says “I give $1000 to X. X gets $1000. X gets nothing. so B2 gets nothing. DRR gives effect to prior will so sister can take. Revival  if a second will is revoked. but sister not dead. If will is revoked.

1st is antilapse. residue & remainder”  everything not otherwise given away. (If B dead at execution. one of a kind gift. APPLY ANTILAPSE FIRST UNLESS IT IS A VOID GIFT INSTEAD OF A LAPSED GIFT AND T KNOWS GIFT IS VOID AS TO THAT MEMBER)  if gift is class gift and fails as to one member. gift void) Where does failed gift go? Depends on Type of Gift General  usually money Specific  “my __ to __”. or former spouse (but cannot actually be T’s spouse) Applies to both lapse and void gifts (if B disclaims interest and is treated as predeceased) and to all NP documents except for JT Goes to issue of predeceased transferee (not to estate of transferee) if transferee has issue. check for antilapse! Saves gift by allowing it to go to issue of predeceased beneficiary b/c we presume that T would prefer gift to go to issue of predeceased B. other gets all instead of half going into intestacy.) Residuary  “rest. so if more than one residuary. and only members at that time can take. Antilapse  anytime there’s a lapse. goes to intestacy. Considerations for Class Gift Who? Specific names vs. If residuary fails. Issue could not take under antilapse b/c “living” sufficient express language to show contrary intent to issue taking. trusts. But modern trend says you can have residue of residue. deeds. Class Gift Doctrine (2nd way to save a gift by giving to remaining members of class. Membership in class determined at time of death. that portion goes back in the pot and is redistributed to other members. gift fails. If fails. One brother dies. goes to residue. deceased. Unless there is express contrary intent in the instrument Exception for “if he survives me” clause  does not go to beneficiary’s issue Allen – T gave property to “living” brothers and sisters. collectively 19 .Death of Beneficiary (for wills. Demonstrative  dollar amount from specific source ($10K from by checking account at Bank of Am. Requirements: Requisite degree of relationship  transferee must be related to T or related to T’s surviving. and life insurance Ks) Lapsed Gift  if B dies before T. but survived by issue.

This could also be change in form. but transferor is entitled to receive payments. give it. Then W sells VW to K for $5K. If gift fails it would fall in intestacy to her heirs. Avoidance & Softening Doctrines for Ademption Characterization as a general gift so ademption doesn’t apply (b/c only applies to specific) Change in form.” then changes band to Wamu. Courts might allow this. Construe at time of death instead of at time of execution (overlaps with Acts of Independent Significance) Ex: “I give my car to E. Ex: Change bank account to CD  courts probably won’t allow – this is more substance. must give replacement or monetary value.What? Property described in whole vs. not substance Ex: “I give E my checking account at Bank of Am. Outstanding Balance Doctrine (CA)  if specific item not in estate. If W dies. non-rebuttable presumption that T intended to revoke gift. No extrinsic evidence.” At time of execution T has VW. if it’s not there then no gift. beneficiary can get outstanding balance. Modern Trend  T still intended to make gift so if it’s not there. and are there other individuals in the class who were left out T’s overall testamentary scheme – what would happen if doctrine not applied and is it consistent with T’s intent? Dawson – T specifically said she didn’t want her property to go to her heirs. Change in Property Promised to Beneficiary Ademption Identity Approach (CL/CA)  if we can identify the gift. K actually gets VW + $4K. Ex: W wills VW to Eric. K gives $1K and owes W $4K. Eric can get outstanding balance. “I give 1/5 interest in my farm”) Common characteristics between individuals. not substance. 20 . in shares (“I give my farm to my kids” vs. but to husband’s heirs. at time of death T has jag. Only applies to specific gifts.

we assume he would have executed a codicil if he could have. HYPO: W can give everything to Lulu. so addemption applies. but beneficiary gets FMV of car. Car not in estate. survivor gets 100% of deceased spouse’s half. but for wills & trusts there is a surviving spouse until divorce decree or death Community property  property acquired by either spouse during marriage as a result of labor  each spouse has equal interest in CP during marriage. Ex: W in accident and in hospital. but cannot give property that is his earnings during marriage. Intestacy (* you could die both testate and intestate if you don’t leave everything and you don’t have a residuary clause) – taker is heir – heirs take in following order: Surviving spouse takes first (In CA spouse and registered DP are same) Surviving  CL = irreversible cessation of lung or heart activity. Conservator sells W’s car for $2500. after death of one. unless document expressly states that a longer survival time is required Spouse  CP ends when spouses clearly indicate to each other that the marriage is over.Conservatorship Doctrine (CA)  Gifts disposed while in conservatorship are turned into general gifts and beneficiary gets general (FMV) value. If conservatorship ends and T survives for more than a year. Modern trend = irreversible cessation of brain activity Survival analysis: (1) did spouse actually survive? (2) did spouse legally survive? Duration of Survival Requirement  Party claiming right to take must show by clear and convincing evidence that second spouse to die survived by at least 120 hours (CL rule was that one spouse more likely survived the other by a millisecond) This is different from non-probate/probate-testate survival requirements  clear and convincing evidence of survival by a millisecond. beneficiary cannot invoke conservatorship doctrine b/c T has time to make codicil. 21 . W dies. Because T lacks capacity.

gifts acquired before or during marriage (inter vivos or testamentary) Distribution depends on family situation: If no issue. Ct said kids couldn’t inherit. Step-parent adoption: If W & G divorce. H’s brother dies intestate. surviving spouse gets 100% If there is one child or issue of one deceased child. issue take next in equal* amounts of 100% Issue: can be naturally. earnings are no longer CP. relationship b/t adoptive parents and child is same as natural parent-child relationship with full inheritance rights in both directions Child-natural parent relationship: general rule is complete severance with no inheritance in either direction. surviving spouse gets 33% If there is no surviving spouse. T is not step-parent and classic adoption rules apply and P-C relationship with W is severed. but CA statute permits child to inherit from natural parent even if there is no legal relationship Post-death adoption: no severance of P-C relationship if (1) there was a P-C relationship before death and (2) adoption after death of either parent Hall – H&W married with kids. artificially naturally (sperm bank). or no issue but parent or issue of parent. H dies. or surviving issue of more than one child. G marries Tank. surviving spouse gets 50% If there is more than one child. Anytime there is an adoption there is full inheritance in both directions. Tank adopts W’s kids (W must consent to give up P-C relationship). (Child gets punished for socially unacceptable situation) Children can inherit from step parent/foster parent if: There is a P-C relationship that begins while children are minors and continues throughout lifetime of both parties 22 . W remarries and S adopts. CA would have allowed b/c kids can inherit from and through natural parents via post-death adoption and step-parent adoption doctrines.Separate property  if marriage ends (death/divorce). If G & T did not get married but T still adopted. or artificially legally (adoption) Adoptive issue: moment child is adopted. parents or issue of parents. But kids can also still inherit from W in this situation.

you can inherit from. This is not a true P-C relationship and remedy is damages for breach of K and parent cannot inherit from child. At CL child considered born at conception. Same sex couple glitch: Lesbian couple wants to have baby. but not through. Posthumously born kids  If W dies while G is pregnant. one artificially inseminates and other wants to adopt. CA Rule: Follows O’Neil  promise or intention to adopt must be shown by clear and convincing evidence. giving from and through inheritance rights. presumption that W is father and child can inherit from W.Step-parent would have adopted (attempted adoption) except for legal barrier (natural parent didn’t consent) Equitable adoption  equity regards as done that which ought to have been done. Traditional adoption inheritance scheme would kick out natural mother when second adopted because adoption severs relationship with same-sex partner. parent. so if child born w/in 300 days of one parent’s death. Must show by clear 23 . high threshold. In Minary b/c it was a trust (non-probate) W wouldn’t inherit b/c didn’t live with H as a minor. not just to H’s brother’s kids. If you prove. This does not affect relationship with natural parent. Adopting spouse  gives inheritance rights from and through as opposed to just from Minary – H adopts W so that H’s mom’s property would go to W when H died. CA & most states allow adult adoption. Must show that father consented and acknowledged that sperm could be used posthumously. Child is claiming breach of K and damages are inheritance rights that she would be entitled to. To fix  equitable adoption or both adopt at same time. CA Rule: For registered DPs samegender rule doesn’t apply so if lesbian step-mom moved in with natural mom and adopted she would replace natural dad. BUT different rule for nonprobate and probate testate  adopted child must live with adoptive parents as a regular member of the household (or household of parent’s sibling. they are considered child for intestacy. or spouse) as a minor.

BUT neither a parent nor a relative of a natural parent can inherit from child who has been adopted by another couple HYPO: Lulu is pregnant. default is guardian or conservatorship. W cannot inherit from child unless he or a member of his family (1) acknowledges and (2) supports the child. Trustee usually a professional trustee or bank. 24 . Also need writing to revoke permission. must babysit property until they reach age of majority. CL: guardian held property until age 18. Minors taking property  no legal capacity to own. Making deposit at sperm bank not enough to show consent in CA. Child can inherit from W if child proves paternity. virtually irebuttable presumption that husband is father. If couple is married. Burden of proof for paternity inter vivos is preponderance. claims W is father. Woodward – father banked sperm before dying and mom uses it later to get pregnant. W denies paternity. but W denies. Child grows up and wins lotto. This must be opted into. had to go to court to do anything with it. CA Rule for Posthumously Conceived Kid: writing signed dated notice to person distributing property w/in 4 mos. W can inherit because relative of natural parent acknowledged and supported. trustee holds and distributes per terms of trust. post death clear & convincing. W’s mom comes forward and supports child. Then W dies. Child must be alive or dead but survived by issue HYPO: Lulu is pregnant.and convincing evidence in writing (signed and dated). had no power over property. Modern trend: conservatorship  greater power to manage property for best interest of child Most flexible: trust  put property in bucket. of death child must be in utero w/in 2 yrs (so other beneficiaries don’t have to wait too long) Sperm can be devised in will but cannot be transferred by devisee.

Qualifying property  depends if it’s real or personal Real prop: recapture all real property if spouse died less than 15 years ago 25 . regardless of generation from T In CA if a will says T leaves property “by representation” this means per stirpes. but that means T is testate. girl uses sperm from condom to impregnate herself.Donator of sperm is not natural father if sperm comes from an authorized sperm bank and is done in a hospital. parents take in equal amounts of 100% BUT first see if RECAPTURE DOCTRINE APPLIES: Recapture doctrine: If decedent dies with no surviving spouse or issue. After he leaves. Ball player is natural father and must support child. but others can be used if specified in written instrument. Issue can take in 3 ways Per stirpes  division made at first generation. shares drop by bloodline Bloodline: (traditional approach) issue of one deceased taker take equal shares from taker. ask Was there a predeceased spouse? If YES. There is no legal father. recapture all qualifying property second spouse to die received from first spouse upon death. one share given to each party alive or dead but survived by issue at that tier. shares are pooled Pooling: (modern trend) all in same generation take same amount If no surviving spouse or issue. and each member of that generation who is alive or dead and survived by issue gets one share. Per capita by representation (CA. HYPO: Ball player has sex. uses condom. drops by bloodline Per capita by generation  division made at first tier with live taker with one share to each party alive or dead but survived by issue at that tier. so this is default)  division made at first tier with live taker.

or parents. all equally* If no surviving spouse. or issue of GP. parents. GP take equally. parents. and (3) there is an aggregate value of at least $10K. all equally If no surviving spouse. (2) there is a written record. their issue take equally* If no surviving spouse. or next of kin. issue of GP. issue of predeceased spouse. then parents or issue of parents of predeceased spouse take. issue of GP. issue of predeceased spouse. issue of predeceased spouse. GP. next of kin. parents. Degree of relationship with parentelic tie breaker (CA approach)  those in the closer parentelic lines take to the exclusion of those in more remote parentelic lines If no surviving spouse. then next of kin take all equally* Parentelic  go down family lines  Parents and issue of parents GP and issue of GP GGP and issue of GGP Degree of relationship  find closest common ancestor between T and B and count the tiers to the B. issue. issue. GP. grandparents or issue of grandparents take. issue. issue. if no GP. Distribution of qualifying property (qualifying takers): Issue (equally) Parents Issue of parents * If no qualifying takers. parents. issue of predeceased spouse take next. issue. parents or issue of predeceased spouse. then it escheats to the state 26 .Personal prop: recapture if (1) spouse died less than 5 years ago. no recapture If no surviving spouse. GP. issue of GP. GP.

or intestacy is treated as having predeceased decedent. A disclaiming party whose shares will pass to his heirs  party will not be treated as predeceased for purposes of calculating shares. Donor must create writing contemporaneously with transfer. so lapse/anti-lapse doctrines kick in Hypo: W’s dad dies intestate. not at the kids level. makes $100K (separate property). B and P. B dies. Lulu gets $100K. OPP. low threshold). If P disclaims. decedent’s half goes to probate and killer can’t take it. If W’s will gives all prop to Lulu. trust. W & G move to MO. If W disclaims. CL Rule = advanced gift counts against time of death gift. doesn’t allow parties to disclaim to get more shares Ex: M has two kids. so his side gets 90%. JT property is severed and turned into T in C – killer keeps his/her half. just preponderance of evidence. mom gets all. W’s will gives all to Lulu. Mom gets 1/3. If all brothers disclaim. HYPO: W earns $100K in CA. Homicide  killer that is taker under will. When W dies he has $50K.Disqualifying Doctrines Advancement Doctrine  CA/Modern Rule: inter vivos gift does NOT count against time of death share unless there is writing evidencing intent that gift count against time of death share. W dies. Donnee can create writing at any time (no dating or signing needed. shares will be calculated at his level so he gets half. 27 . G has no CP assets. his portion will just go to the other brothers. You can disclaim to avoid creditors (except IRS) – court may put in constructive trust (rare) to avoid creditors. Must disclaim w/in 9 months of T’s death and must be in writing. Miscellaneous Migrating Couple HYPO: W spends career teaching in MO. P has 9 kids. G can technically double dip b/c she gets her $50K of CP and she can elect to take ½ or 1/3 from W’s will. and 4 sons get 2/3. W & G move to CA and W dies. Only applies to intestate property. Manslaughter will meet requirements for homicide doctrine if it is voluntary (intentional). B has one kid. Disclaimer Doctrine  donnee affirmatively states he does not want to take. treated as predeceased.

Migrating runs risk of slipping through cracks  in hypo G is legally protected but really isn’t b/c assets are characterized at time of acquisition but type of protection is determined at time of death. If wage-earning spouse dies first. (Like if in hypo G gave all to Pepp. If you write a codicil or will after marriage or if you set up a revocable inter vivos trust. Protection Doctrines Predermitted Spouse Doctrine  Presumes deceased spouse intended to change will after marriage to provide more for surviving spouse. Shares come pro rata from other beneficiaries. Requirements: Will executed prior to marriage Generic disinheritance clause (not sufficient to disinherit future spouse unless done with an eye toward marriage) 3 ways to rebut: Will expressly states intent to disinherit There was a transfer to spouse outside of will that was intended to be in lieu of transfer under will – must show evidence that it was made in lieu Spouse waived rights – premarital agreement If surviving spouse successfully invokes  spouse gets intestacy share (1/2 or 1/3) and 100% of CP (gets this anyway). If non-earning spouse dies first result is different. 28 . This is exception to general rule that we don’t correct mistakes b/c public policy provides for spouse after death. she doesn’t have CP just b/c she moved to CA to give away) FIX: Uniform Disposition of CP Rts at Death Doctrine  You cannot claim elective shares of CP assets. you cannot invoke (but can if trust is irrevocable) Pretermitted Child Doctrine  Presumes that parent made mistake and intended to provide for child. but G had no earnings. FIX: Quasi-CP  Property that would have been characterized as CP but was earned in a non-CP state is classified as quasi-CP at time of death. result is same as true CP.

Problem with CP is that it goes through probate while JT doesn’t. so maybe could use Scrivener’s Error Doctrine.5M. T goes to lawyer to provide for new kid. PDC doesn’t work b/c T executes codicil so kid is out of luck even though T intended to provide. 29 .5M and then W dies. W’s basis was $250K. Stepped-Up Basis HYPO: G & W buy house for $500K. If will created after child is born it is Omitted Child Doctrine. but steps up to $750K. G has no gain. In the mean time T executes codicil unrelated to new kid. G’s basis is still $250K. d. When W dies. HYPO: Same but G & W take as CP. taking as JT. House appreciates to $1. not T. basis jumps to $1. but CA fixed this by creating CP with right of survivorship  get double step-up and avoid probate. Unknown child  child can take from parent using PCD even if parent didn’t know he had child and child would get intestacy share.3 ways to rebut (first 2 same as for spouse): Will expressly states intent to disinherit There was a transfer to child outside of the will that was intended to be in lieu of a transfer under will – must show evidence that it was made in lieu T can leave all to other parent of child claiming PCD – logic is that child will take later from other parent and in the meantime parent will provide for child – T must have done this for other kids too If child successfully invokes  child gets share he would have under intestacy. New kid born. c. This doctrine also applies if you erroneously think kid is dead. Lawyer was going to look into it and T was going to come back. kid would have taken. basis is $1M so G only has gain of $500K instead of $1M. If there had not been a codicil. If G sells. therefore no taxes. Writing in will that you specifically disinherit any child doesn’t work. Attorney caused problem. b. They get double step-up. Only way to get out of it is to track down all possible kids and find their names and specifically disinherit by name. T dies before changing to provide for new kid. Azcunce  T provides for wife and kids in will.

Must describe document with Rx certainty 4. not subject to Probate Ct supervsion. IF there is a subsequent amendment to trust can we give effect to it? No. Trust Trust avoids probate and is easier to create. and (3) trust is signed prior to or concurrently with execution of the will you get: pour over clause is valid any amendments are valid regardless of when they’re created 30 . Pour over will must have pour over clause (typically in residuary clause)  gives rest of property to Trustee of trust to hold and distribute pursuant to terms of trust. This is ok b/c of Doctrine of Incorporation by Reference  you’re incorporating the language of the trust instrument (terms of the trust) into the will. Pours property from will into trust. 2. Problem is that people are reluctant to put money into trust inter vivos. If it’s an inter vivos trust. have to sign checks. Will vs. you must transfer assets into it.Any and all assets with appreciation potential can be held as CP w/ right of survivorship. property doesn’t go through probate. To create a trust. but only if trust created inter vivos and has property in it at time of death. so this is preferable. Trust is subject to Probate Court supervision for its whole life. Can be a hassle to put checking account in it. How to solve  will with pour over clause into a trust It’s an inter vivos trust so doesn’t go through probate If it’s a testamentary trust (trust in will) property in trust goes through probate. Amendment not in existence at time will was executed. Must validate pour over clause or else it is a failed gift. Document must be in existence at time of reference 3. UTATA –Uniform Testamentary Additions to Trust Act  if (1) the will references the trust (pour over clause) and (2) terms are set forth in separate document. not default. so can’t do it under Incorporation. but can under Acts of Independent Significance. “W as trustee of W’s trust” Have to constantly update trust. Must specifically put in. … Also could use Acts of Independent Significance if trust document not in existence.

If you cannot meet the requirements of UTATA. If you see a pour over clause. Property still goes through probate. then fall back to CL doctrines to validate the pour over clause so it doesn’t fall to intestacy. it’s not subject to Probate Ct supervision. but once it’s poured into the trust you get the benefits of it being an inter vivos trust.even if trust is completely unfunded until you die. validate it! Use 3 doctrines! 31 .

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