WILLS OUTLINE

I. INTRODUCTORY TERMS:
A. Will or Testament – a written document that is a lawful, voluntary disposition of assets
upon death
1. Lawful = conforms to law
2. Voluntary = not under duress, intoxication, etc.
3. Upon death = Evidence of desire to dispose assets upon death
B. Codicil – a written supplement or amendment to a Will
C. Testator/trix (Transferor) – one who makes a Will
1. The person who is detailing how to transfer their assets at death
D. Devise – gift of real property
1. Distribution under the will – historically refers to real property
E. Bequest – gift or personal property
F. Legacy – gift of money
G. Heir/Heir at law – those persons designated by statute as being next in line to inherit
H. Beneficiary (Transferee) – those persons named in the Will to inherit
1. Someone who gets under the will
I. Issue – lineal descendants of decedent (child, grandchild, great-grandchild, etc.)
1. Spouses are not issues
2. Heirs at law but not all heirs at law are issue (b/c heirs at law can be a spouse)
J. Probate, Surrogate, Orphan’s Court – Court having jurisdiction to hear matters arising from
decedent’s estates or trusts
K. Testate – Decedent dies leaving a valid Will which directs disposition of estate
L. Intestate – Decedent dies without a Will and estate is distributed according to state law (in some
states, the laws of succession)
M. Decedent – The person who’s estate we are sorting out
 INTESTACY

A. DISTRIBUTION OF COMMUNITY PROPERTY & Quasi-Community Property

When a person dies intestate, if there are CP or QCP assets, the surviving spouse gets 100% of the CP assets,
even if separated or not living together.
- A spouse must survive the decedent by 120 hours in order to be considered a surviving spouse (see
below).

A person will be considered a surviving spouse until there is a final divorce judgment
- Divorce terminates intestate inheritance rights upon entry of final judgment of dissolution of marriage.

In the event of a divorce, each spouse takes their 1/2 interest of the CP assets.
- A person is considered a spouse if there is:
1) A lawful marriage according to state law; OR
2) The person is a putative spouse.
a. A person is a putative spouse when there is an apparently valid marriage, entered into in
good faith, but is legally invalid due to a preexisting marriage of one of the partners.
b. CA does not recognize common law marriages – i.e., living together for a long time
without getting married.

3) Registered Domestic Partnership (RDP)

4) Common Law Marriages- Not recognized in California

PROF MARTINDILL:

[Estate of McDaniel, (2008) 161 Cal.App.4th 458 note case] -Inheritance rights terminate when property divorce
settlement agreement is complete, even if marriage not yet dissolved.

[Irvin v. Contra Costa Co.(2017) Cal.App.1st Dist., Div. 1, June 30, 2017)-Judgement of legal separation does
NOT terminate marriage and spouse remains a “surviving spouse” for inheritance purposes.
 B. DISTRIBUTION OF SEPARATE PROPERTY

If there is a SURVIVING SPOUSE, the Separate Property will be distributed 1/2 to the surviving spouse
and 1/2 to ONE CHILD or child’s issue (grandchildren), BUT,
IF there is no child or child’s issue, then 1/2 will go to the decedent’s parents or issue of parents.

If the decedent has a surviving spouse and TWO OR MORE CHILDREN, the SP will be distributed
1/3 to the surviving spouse and 2/3 to two or more children or their issue.

If there are NO children or issue, no parents, and no issue of parents, all of the SP goes to the surviving
spouse.

If there is no surviving spouse, all SP will go to the children or issue of predeceased child.

If there is no surviving spouse, no children, and no issue all SP will go to either:

Surviving parents of decedent
Issue of parents (siblings, nieces, nephews)
Surviving grandparents of decedent
Issue of grandparents (blood line aunts/uncles)
Issue of predeceased spouse (surviving step kids and their issue)
Other surviving relatives of decedent
Surviving parents of predeceased spouse (in-laws)
Issue of parents of predeceased spouse (brother/sister in-law or his/her issues)
Escheat to the state

Disinheritance in Equity – If a child dies intestate, the child’s assets can go to a deadbeat parent UNLESS there
is:
1) Intentional abandonment by the parent
2) For 7 consecutive years continuing to the child’s majority
 C. PARENT/CHILD RELATIONSHIP

A parent/child relationship exists between

1) A person and their NATURAL/BIOLOGICAL parents, regardless of the parents’ marital status;
a. *The Husband of a married woman, that is the natural parent, is presumed to be the father.
i. Presumption that makes a prima facie face
ii. Preponderance of the evidence
iii. Clear and convincing evidence (this is what the husband needs to establish that he is NOT father;
usually will show he is impotent or sterile)
iv. Beyond a reasonable doubt
AND
2) An adopted person and their ADOPTING parents
a. (An adoptive parent cannot un-adopt a child)
b. Adult adoptions are legal as well.
c. Father and Mother; or 2 Mothers; or 2 Fathers

After a child has been ADOPTED, inheritance rights to and from the NATRUAL parents are
TERMINATED. (An adopted child may NOT inherit from his intestate deceased natural parents.) (Hall v.
Vallandingham pg. 92 in casebook)

Step-Parent Exception (Estate of Dye page 21 of companion textbook) – However, an adopted child will retain
inheritance rights from BOTH the predeceased natural parent and the adoptive stepparent if the child was
adopted at the DEATH of the NATURAL parent and while still a minor.
For this exception to work the child must be adopted before 18 and the living natural parent and
adoptive step-parent must be married and cohabiting (living together). This exception allows the child to
have 3 lines of intestate inheritance  Predeceased natural parent (bio-father), living natural parent (bio-
mother), and adoptive stepparent (adoptive father).

Adult adoptions are legal and work the same way as child adoptions.

*Presumptive Parentage – The husband is presumed to be the father of a child born into the marriage.
If a father is holding the child out as his own but the parents are not married, his relationship with the
child is rebuttable, so long as it is rebutted within 2 years, otherwise he will be deemed the father
- If the father is trying to establish paternity, he must do so by a preponderance of the evidence
 - If the child is trying to establish paternity, he must do so by clear and convincing evidence

Equitable Adoption – An equitably adopted child can only inherit directly from or to the adoptive parent(s)
– Cannot inherit THROUGH adoptive parent, (i.e., from adoptive father’s mother, [grandmother] etc.)
- A child is considered equitably adoptive when:
1) The parent/child relationship began at minority
2) Continued throughout the joint lifetimes of the child and parent; AND
3) It is established by clear and convincing evidence that the person would have adopted the
child BUT-FOR a legal barrier that lasted a lifetime. (would be adoptive parents had the
intent to adopt)
- Legal barrier = unable to locate biological parent, biological parent does not consent to
adoption

Surrogates (contracted mother who carries baby for a couple) – When there is a surrogate, a Contract
determines who the actual mother is.
If a contract is not properly drawn, the surrogate will be presumed the mother (i.e., bio-dad and surrogate
mother will have intestate inheritance rights).
- If there is an in-vitro baby while married, the man is presumed to be the father, no matter who the sperm
came from
- Genetic donors give up parental rights to the child.
o If the genetic donors do NOT go through the legal mechanism to donate sperm, etc.- then they
may be on the hook for child support.

Posthumous Birth – Occurs when a child is conceived before the father’s death but born after the father’s
death.
If a child is born after the father’s death, the child will still be considered the father’s issue if he was born
within 300 days of the father’s death (9 months).
A child of a decedent conceived after the death of the decedent, will be considered as being born in the
decedent’s lifetime if: (CALIFORNIA RULE)
1) Decedent consented in signed writing
2) There was notice of intent to use decedent’s sperm within 4 months of death, and
3) The child was in utero within 2 years of death
(Ask Prof whether we need to know this for exam) Other Posthumous Birth: where father preserves sperm,
after his death, the wife decides to then use the sperm to conceive child: Woodward v. Commissioner: A child
conceived after the death of the decedent can inherit from the deceased parent if:
1) While alive, the parent consented to posthumous conception in a signed writing or consent is
proven by clear and convincing evidence, and
2) The child is in utero within 36 months; or born no later than 45 months after death.
- Genetic material is not an asset to an estate to be distributed – the intent of the decedent
determines what will happen to the material.

D. EFFECT OF HOMICIDE/ELDER ABUSE

A felonious and intentional KILLING of decedent will TERMINATE all inheritance rights and that person
will be treated as having predeceased the decedent.
- In probate court, the killing of decedent must be proven by a preponderance of the evidence.
- In criminal court, the killing of decedent must be proven by proof beyond a reasonable doubt (higher
standard than probate court).

Physical ABUSE, neglect, or fiduciary abuse of an elderly or dependent adult will terminate all inheritance
rights and that person will be treated as having predeceased the decedent.
- Evidence of ABUSE must be proven by clear and convincing evidence.

E. EFFECT OF PRIOR TRANSACTION

ADVANCEMENT: If a person dies intestate, property given to an heir by the decedent during his lifetime will
be treated as an advancement against the heir’s inheritance ONLY if there is:
1) A contemporaneous writing, or
2) Acknowledgment of the advancement

Expected inheritance rights can be ASSIGNED but the right to inherit is a mere expectancy until the intestate
person dies.
- Intestate person alive = Expectancy interest
- Intestate person dies = Vested interest
- Same applies for Wills
DISCLAIMER: Inheritance rights may be declined or refused by disclaiming them and the person disclaiming
will be treated as having predeceased the decedent.
Disclaimers are valid and shield the declined inheritance from the disclaimer’s creditors, EXCEPT (1) IRS
TAX LIENS and (2) Existing SBA Debt (Small Business Administration) existing at the time of the
disclaimer.
- Must inform the court within 9 months after the inheritance vests (after death) to disclaim.
- The disclaimer is irrevocable
- Cannot direct where the inheritance share will go upon disclaiming
- A disclaimer is not fraudulent under Bankruptcy law

Debt owed by the intestate heir to decedent must be added up and offset from the inheritance and paid back
to the decedent’s estate – Heir gets balance of intestate inheritance minus money owed to the estate.

F. LOOK-BACK Exception/RULE (INTESTATE EXCEPTION)

If decedent dies intestate and has NO surviving spouse or issue (children):

1) Real Property inherited from decedent’s predeceased spouse within 15 years will be taken out of
the decedent’s estate and given back to the predeceased spouse’s estate.
2) Titled Personal Property (bank accounts, stocks or bonds) inherited from the decedent’s
predeceased spouse within 5 years and worth $10K or more will be taken out of the decedent’s
estate and given back to the predeceased spouse’s estate.
- Re-Marriage or a Will cuts off/nullifies look-back exception.

G. FAILURE TO SURVIVE

A decedent’s spouse must survive decedent by 120 hours to be considered a surviving spouse, proven by clear
and convincing evidence. (Janus v. Tarasiewicz)
Simultaneous death results in distro as if each had pre-deceased the other spouse.
But, beneficiaries of life insurance policies, prove by clear and convincing evidence they survived the spouse.
(beneficiary contracts such as life insurance is different from intestacy)
 TESTATE

TESTATOR MAY CHOSE WHICH STATE’S LAW WILL CONTROL, BUT CANNOT DEFEAT CA
COMMUNITY PROPERTY RIGHTS NOR RIGHTS TO ALLOWANCE/HOMESTEAD.

A. TESTAMENTARY CAPACITY

A person must be 18 YEARS OLD AND “OF SOUND MIND” to make a will.
The testator’s COMPETENCE is PRESUMED but can be rebutted by a preponderance of the evidence.

A person must be mentally competent to make a will, which is determined at the time of signing the will, not
at the time of death. A testator’s competence is presumed but can be rebutted by a preponderance of the
evidence.

A person is NOT mentally competent at the time of signing if he does not:

1) Understand the act of making the will

2) Comprehend the property; OR
3) Remember the living descendants whose interests are affected by the will
a. Probate Code 6100.5(a)(1) (the above factors)

Deficits in mental functioning can affect the testator’s testamentary capacity and will make the invalid.
Deficits in mental functioning are those that interfere with the ability to make particular legal decisions.
A person will not be considered mentally competent if he suffers from:
1) DEMENTIA
a. Impairment in 3 out of 5 categories:
i. Language ability
ii. Short term memory loss
iii. Ability to stay focused
iv. Emotion or personality
v. Cognition
 2) DELUSIONS
a. A person suffers from delusions if:
i. He has absolutely no foundation in fact
ii. He is totally devoid of reason; AND
1. It is proven that the will was a product of the delusion; OR
2. The delusion materially affected the will
3) HALLUCINATIONS
a. A person suffers from hallucinations if:
i. There is sensory activation without justification (does not include drugs); AND
ii. The perception is attributed confidently but mistakenly to something which has no
objective existence

Substituted Judgement Rule: Upon petition to the Court by a Conservator, the Court may approve a will for a
person previously adjudicated incapacitated. (If someone does not have capacity to make a Will, the court can
appoint a conservator for purposes of devising the will to make sure the assets are divided as the testator
intends.)

B. TESTAMENTARY INTERFERENCE

An interference with an expected inheritance TORT occurs when there is:

1) A reasonable EXPECTANCE of inheritance;
2) An INTERFERENCE;
3) CAUSATION; AND
4) DAMAGES

Testamentary interference can occur by:

1) Intentional/Negligent Conduct
2) Mistake
a. An interference by mistake must go to the formation of testamentary intent or to whether
the document was intended to be a Will at all
b. Mistake of Fact:
i. Ignorance of material fact, past or present
ii. Belief in thing non-existent
 c. Mistake of Law:
i. A misunderstanding of the law by all parties; OR
ii. A misunderstanding of the law by one party, where others are aware of the mistake at
the time of formation, but do nothing to fix it
3) Duress
a. Unlawful confinement of a person or family member of such person
b. Unlawful detention of property of a person or that person’s family member; OR
c. Harassing/oppressing a person or family member of that person
4) Menace
a. A threat of unlawful and violent injury to the person, property, or that person’s family member;
OR
b. A threat of injury to the character of any such persons
5) Fraud
a. An interference by fraud can be in the form of:
i. Actual Fraud
1. Occurs when a party to the K intends to deceive or induce another party to
the K by:
a. Purposefully telling a lie
b. Saying something is true when truth is uncertain
c. Suppressing facts
d. Promising to perform without intent to perform
ii. Constructive Fraud
1. Occurs when there is a breach of duty without intent where the breaching
party gains an advantage to another’s prejudice
a. i.e., may have forgotten to mention a material fact and gains an
advantage due to such omission
6) UNDUE INFLUENCE
a. To establish undue influence, the person contesting the will must show:
i. Excessive PERSUASSION
ii. That CAUSES another person to ACT or REFRAIN from acting
iii. By overcoming that person’s free will; AND
iv. Results in INEQUITY
b. To determine whether the undue influence caused the result, the Court must consider:
 i. Vulnerability
1. Incapacity, injury, illness, age, etc. of the testator
2. If the undue influence is based on the vulnerability of the testator, capacity of
the testator is presumed, but if it’s rebutted, the burden of proving capacity
remains with the testator – i.e., the testator must prove that he has capacity
ii. Influencer’s Apparent Authority
1. Undue influence is PRESUMED where there is a CONFIDENTIAL
relationship between the testator and the influencer:
a. Fiduciary Relationship
i. Attorney, POA, Trustee
b. Reliant Relationship
i. Relationship based on trust and confidence
c. Caregiver (“Dominant-subservient”)
2. HOWEVER, this presumption does not apply if the gift is to a person who is
related to the testator
3. If there is a confidential relationship, undue influence is rebuttable – The
burden of disproving undue influence shifts to the influencer and must be
rebutted with clear and convincing evidence
iii. Actions/Tactics Used by Influencer
1. Undue influence is also presumed where there is an existence of suspicious
circumstances
a. Weakened condition of testator – physically/mentally susceptible to
undue influence
b. Extent to which influencer participated in the preparation of the will
c. Whether the testator received independent advice in preparing the
will
d. Whether the testator’s attitude towards others changed due to a
relationship with the influencer
iv. The Equity of the Result
1. Economic consequences to the victim
c. If unable to prove confidential relationship or suspicious circumstances, use the fallback test
to determine undue influence:
i. Susceptibility of testator
 ii. Motive/opportunity of influencer
iii. Disposition of results of influence (final outcome of the will)
d. Undue influence will NOT BE PRESUMED if the gift is:
i. Mere remembrances
ii. Independent review
iii. Direct family member
iv. Secret re-marriage to former spouse
1. Children do not have standing to annul marriage
7) Defamation
8) Forgery
9) Suppression of Existing Will
10) Alteration/Depletion of Assets Prior to Death

C. FAMILY PROTECTIONS

A FAMILY ALLOWANCE is a stipend that is paid out of the estate to help transition as a result of the
decedent’s death.
Eligible People for a Family Allowance: Only a surviving spouse, minor children, adult dependent children
(physically or mentally incapacitated), or a dependent parent can request a family allowance but must show
need and the allowance must be reasonable according to the circumstances and available assets.
The family allowance lasts for the duration of the probate proceeding.

A HOMESTEAD allows for a surviving spouse and/or minor children to live in the home that they did not
inherit from a deceased spouse/parent. Only one homestead is allowed per estate.
The property must be a CP, QCP, TIC, or SP. The homestead CANNOT be a Joint tenancy with a 3rd party.
The homestead allowance lasts until either the remaining life of the Surviving Spouse or until the youngest
child reaches 18.

A surviving spouse can exercise the right to a spousal elective share when a will provides less than what the
law says the surviving spouse’s minimum entitlement is. If the will provides less than what the law says the
SS’s minimum entitlement is, the SS can either take under the will or enforce statutory inheritance rights.
 For example, a spouse can’t give away CP unless there is another option – then the SS has to make an
election to take the CP that she is entitled to or elect the other option. Rights to exercise spousal elective share
can be superseded by litigation settlement agreement, unless there is an expressly stated agreement otherwise.

The testator may choose which state’s law controls the Will, but cannot defeat CA CP rights or
allowance/homestead rights.

Unintentionally Omitted Spouse and Omitted Children (Doctrine)

An omission occurs when there is a failure to provide under the last valid testamentary instrument.
If a spouse is unintentionally omitted, the spouse is entitled to:
1) 1/2 of CP
2) 1/2 of QCP
3) 1/2 of SP; UNLESS spouse was 1) INTENTIONALLY omitted (ex: by codicil/amendment),
2) provided for outside of the will with intent to replace inheritance, or 3) there is a valid written
waiver to the inheritance share.

A child is presumed unintentionally omitted if:

1) The child was born or adopted AFTER the will; OR
2) The parents were mistaken as to the death of the child OR unaware of birth of the child; THEN
3) The child receives the same amount as if the testator died intestate – 1/2, 2/3, or all of the SP,
UNLESS the child was 1) INTENTIONALLY omitted, 2) provided for outside the will with intent
to replace inheritance, or 3) named in the will prior to becoming a child.

The omitted child rule does NOT apply to grandchildren.

WAIVER (Class 9)
Inheritance right can be waived. A waiver is valid when:
1) It is in writing
2) There is adequate disclosure of assets/liabilities (debts)
3) There is a fair/reasonable disposition of rights; AND
4) The other party (usually the wife or the husband) has the opportunity for independent counsel
PUBLIC POLICY VS. TESTATMENTARY FREEDOM (class 9, bottom of page)
RELIGIOUS preferences/faith-based conditions are allowed as conditions for inheritance rights.
However, marital status CANNOT be a condition for inheritance rights if it promotes divorce.

Completion of ILLEGAL acts CANNOT be a condition for inheritance rights.

In some jurisdictions, there is a statutory forced share, meaning a certain percent of the estate must be left to the children and
spouse (mostly applicable in Louisiana).

D. CREATION OF WILLS

Will or Testament – a written document that is a lawful, voluntary disposition of assets upon death

A FORMAL WILL must have:

1) a writing,
2) testamentary intent,
3) testator’s signature,
4) testamentary capacity,
5) two disinterested witnesses, and
6) an attestation clause.

-Attestation clause means: boilerplate language attesting to competency and other boilerplate requirements,
typically found underneath the signature. (Under penalty and perjury)
-The two disinterested witnesses must sign the document (initials not ok), both must be 18 and of sound mind,
know that they are witnesses to the will, and be in the presence of the testator (actually present, in line of sight,
and consciously present). Disinterested witness means a person who is NOT a beneficiary in the will (receiving
anything under the will).
-The writing must be ink on paper, NOT an electronic writing/signature.
-The testator’s signature cannot be an electronic signature or a thumbprint, but can be just a mark.
-Testamentary capacity is presumed, unless rebutted.

The HARMLESS ERROR RULE applies to signatures only and allows substantial compliance with other
formalities of a Will if there is clear and convincing evidence that there is no fraud, undue influence, or
forgery, and that the testator intended the Will to be the way it is written. (However, this rule does not work for
an absence of the Testator’s signature)

Full Faith and Credit Provision: A valid Will in one state, will be valid and recognized in another state.
(except FL)

A Conditional Will may be admitted or rejected in conformity with the stated condition. (Travelers that leave
country… “condition this will that IF traveler dies on this trip”) Condition met triggers the conditional will.

Extrinsic evidence/ parol evidence, is admissible to prove that document is a Will or to determine the meaning
of the Will if it is unclear.

A HOLOGRAPHIC will (handwritten will) must

1) be controlled by state law,
2) be in the testator’s handwriting and SIGNED,
3) be dated, and
4) have present testamentary intent.

The testator’s signature may be an initial, mark, or commonly used nickname.

Putting a date on a holographic will is not necessary UNLESS there is inconsistency or incapacity.
Witnesses are NOT required for a holographic will.

Oral wills are NOT recognized in CA. Oral Wills are allowed in 16 other states but only as to personal property.
Additionally, oral wills of soldiers and sailors are also not recognized in CA.

A statutory “fill in the blank” will requires

1) testator’s signature,
2) blanks to be filled in before signing, and
3) two witnesses.

A statutory will is NOT a substitute for a holographic will.

 E. REVOCATION & REVIVAL

A Will may be REVOKED by:

1) A SUBSEQUENT WILL
a. A subsequent will revokes a prior will expressly or by inconsistency
2) PHYSICAL ACTS
a. The will must be DESTROYED with intent of revocation by the testator;
i. Burned, torn, cancelled, obliterated, or destroyed.
b. OR
c. By another person in the testator’s presence at the testator’s direction
3) PHOTOCOPIES/ DUPLICATES OF ORIGINALS
a. Destruction of the first original will also destroys any other duplicate of the original will
b. Destruction of the duplicate original outside of the testator’s presence does NOT revoke the
original will
4) PRESUMPTION OF REVOCATION
a. A will is presumed to be revoked if:
i. The original will was last in possession of the testator
ii. The testator was competent at death; AND
iii. The original cannot now be found; THEN
iv. In such case, intestacy applies
b. The presumption of revocation can be REBUTTED by showing that the testator was NOT
the last person in possession of the will and/or was not competent.
5) OPERATION OF LAW
a. DIVORCE or termination of domestic partnership revokes a will – This pertains to the ex-
spouse as well as gifts to ex-step children
i. However, a will may be revived by re-marriage to former spouse

A revoked will may be RE-ESTABLISHED by: 1) revival, or 2) dependent relative revocation (DRR).
REVIVAL  Once a will is revoked, it is not automatically revived by the destruction of a
subsequent will UNLESS there is express intent from the testator that he wants the first will to be
revived.
 DRR The dependent relative revocation doctrine is used for undoing mistaken revocations. DRR
applies when:
1) A prior will is revoked by a subsequent will
2) With the expectation that the subsequent will is operative or effective
3) Then, if the subsequent will turns out to be invalid, there needs to be a showing that
4) The second will substantially REPEATED PURPOSE of the first will; AND
5) The intent of the second will was to reform the first will, rather than revoke the entire thing
The court will then reinstate the first will or go by intestacy, whichever appears closer to the testator’s
intent.

F. CONSTRUCTION & INTERPRETATION

Rules of construction apply ONLY when intent of the testator is not indicated by the Will!

A valid K to make a will, not to revoke an existing will, or to die intestate can be established by:
1) A Will provision
2) An express reference to contract and extrinsic evidence proving terms of the K
3) A writing signed by decedent evidencing the K; OR
4) Clear and convincing evidence of the K

The law of the state of domicile where the will was executed controls!

The execution of a JOINT WILL (“I Love You Will”) or mutual wills DOES NOT create a presumption of
a K not to revoke the will.
(this is a situation where the surviving spouse later writes a codicil leaving out the predeceased kinfolk’s
interest and they are left with nothing)
(California presumes mirror wills NOT as contracts to not revoke [therefore the surviving spouse CAN
revoke it])

Extrinsic evidence is admissible to show what pages constitute the entirety of the document.
1) Pages actually present at signing
2) Pages intended by the testator to be in the will; OR
 3) A physical connection
- In order to determine whether all the pages are part of a will, Courts will look at the page numbers
or initials by certain paragraphs of the Will to show that no one has substituted various pages with
forgeries.

If there is a codicil (supplement/amendment) to a Will, the Will shall be reinterpreted and updated at the time
the codicil is made. The codicil can also REVIVE a prior revoked will EXCEPT revocation by physical
destruction.

The nature of assets by referring to an outside document may be incorporated by reference and is allowed
when:
1) There is a writing in existence when a will is executed
2) There is intent to incorporate
3) There is a sufficient description to identify the writing

In regards to the disposition of tangible personal property, a Will may refer to a writing that directs
disposition of tangible personal property not otherwise specifically disposed of in the Will. The tangible
personal property cannot be more than $5K per item or more than $25K collectively. If these requirements are
not met, then a writing that directs disposition of tangible personal property must be done before or at the time of
the will, not after the will is done.

A will can fail by the non-existence of facts or assets and intestacy will apply.

Interpretation – The intent of the testator controls, but when there is no intent indicated:
1) Every expression must be given some effect in attempt to avoid intestacy when interpreting the
testator’s intent
2) All parts of the document are to be read to form a consistent whole
3) The words of the document must be given their ordinary and grammatical meaning, unless the
intention to use them in another way is clear and their intended meaning can be ascertained --
technical words are not necessary to give meaning unless the document redefines the term
- The term personal property is used in a common/ordinary way, not in a technical sense (i.e.,
Household furnishings and furniture – Does not include cash or personal effects such as clothes,
etc.)
There are 3 kinds of ambiguity in a Will:
1) Patent
a. Patent ambiguity is obvious on the face of the will; AND
b. Requires extrinsic evidence to figure out the meaning of the ambiguity
2) Latent
a. Latent ambiguity is not obvious on the face of the will without the use of extrinsic evidence
3) Unambiguous
a. An unambiguous will may be reformed if there is clear and convincing evidence:
i. That the Will contains a mistake; AND
ii. What the true intent of the Will was

STOP HERE FOR MIDTERM!

G. PROBLEMS IN ESTATE DISTRIBUTION

Specific Gift – A specifically identifiable asset going to an identified beneficiary

General Gift – A percentage of the net estate (i.e., 50% of my estate). No particular asset or specific dollar
amount mentioned but an identified percentage of the net estate (after all fees, taxes, debts paid).

Demonstrative Gift – A general gift limited to a specific fund (i.e., 50% of my Schwabb account).

General Pecuniary Gift – A fixed dollar amount.

Annuity – Periodic payments – Basically, a pecuniary gift, payable periodically.

Residuary – Money and property left over after all the taxes, fees, liens/debts, and gifts to heirs have been
distributed.

Ademption – Ademption is a revocation of a specific or demonstrative gift implied by law from the acts of the
testator during his lifetime. Ademption of a specific/demonstrative gift can be made by:
1) Extinction; OR
a. Ademption by extinction can be partial or total and only applies to specific or
demonstrative gifts
b. No substitute or replacement gift is allowed if the identified asset is not part of the estate at
death
c. Does not apply to foreclosure proceedings, gift changes in form, or traceable bank accounts
d. Corporate Securities: Ademption if sold by testator – Not ademption of sold by Corporation
e. If a specific asset is sold by a conservator or agent under POA – No ademption
2) Satisfaction
a. Ademption by satisfaction can be partial or total and applies to any type of gift – Established
by:
i. Will or codicil provision
ii. Contemporaneous declaration in writing
iii. Acknowledgment by recipient in writing; OR
iv. Specific property given during lifetime is the same designated in the will

Abatement – Abatement occurs when a testator is in debt at the time of death. To pay the bills, shares of
beneficiaries abate (decrease) in the following order:
1) Intestate assets are the first to pay the bills (if there is a Will that does not distribute everything)
2) If intestate assets don’t exist or are not enough, the residuary pays the bills next
3) If residuary doesn’t exist or not enough, general, demonstrative, and pecuniary gifts pay the bills
4) If not enough or don’t exist, specific gifts to non-relatives pay the bills
5) Lastly, if not enough or don’t exist, specific gifts to relatives pay the bills
- Priority of Bills  Cost of administration/attorney fees, taxes, creditors
 Each classification of gift gets the pro-rata (proportional) reduction after all the bills have been
paid. For example, if there $100K left in the residuary and we have $50K in bills, all residuary
beneficiaries will get a proportional share of what’s left after paying the bills.

Exoneration – Specific gifts pass with encumbrances UNLESS:

1) The Will requires the gift to pass free and clear of any encumbrances; BUT
a. Then, the executor must pay off the loan prior to giving the gift (via abatement above)
2) This does not abate other specific gifts that are not exonerated
a. This means that you cannot sell one specific gift to pay off loan on another

Set-Off – Debt owed by beneficiary to decedent must be added up and offset from the inheritance and paid
back to decedent’s estate. Same as under intestacy.

Class Gifts – To have a class there must be a description of a group of people who MUST survive the testator
and there must be clear and convincing evidence of survivorship (120 hours). Members who survive, take
equal shares of the class gift.

Family Designations – This determines the distribution scheme if required by the Will.
1) Transfers to Heirs
a. If it says “family, heirs, relatives, kin folk, next of kin” the distribution will be according to
intestacy NOT a class
2) Per Capita
a. If the Will says Per Capita, distribution applies only to lineal descendants – i.e., class gifts at
each lineal generation (grandkids, great grandkids, etc. – does not include parents, spouses,
siblings).
i. Example: 4 kids, 2 have predeceased but had 6 kids. The 2 living kids would get 50%
and other 50% would be divided between the 6 grandkids.
3) Per Stirpes
a. Only applies to living children or deceased children’s issue as in lineal intestacy (distribution
by right or representation)
 Per Capita and Per Stirpes is NOT A DEFAULT – In CA, intestacy is default

Lapse – If a named beneficiary fails to survive, proven by clear and convincing evidence, for a period
required by the Will (or 120 hours if period not state), the predeceased beneficiary does not take. The gift then
goes to the alternate beneficiary named in the Will. If there is no other beneficiary named in the Will, the
gift lapses to intestacy.

Anti-Lapse – Anti-lapse was designed to prevent a gift from going to intestacy. The anti-lapse statute applies
only if the predeceased beneficiary was kindred of testator or testator’s spouse. If so, then the gift will go to
the predeceased kindred bene’s issue. If there is no issue or the beneficiary is not kindred, then the gift goes to the
residuary beneficiary. If the residuary beneficiary fails to survive, then the gift goes to the remaining residuary
beneficiaries OR issue of kindred beneficiaries (pro rata). If no residuary beneficiary, then the gift lapses to
intestacy.

H. WILL SUBSTITUTES

Non-Probate Transfers – A provision for a non-probate transfer is valid, even when the instrument does not
comply with the requirements for execution of a Will. Non-probate transfers include ERISA benefits, life
insurance, etc., and are not governed by wills/probate statutes. Contract law applies to partnership or
insurance death benefits – A partnership agreement that provides for payment of the partners interest to a
beneficiary after death is valid outside the Will. However, divorce cuts off transfer rights of non-probate transfers.
- If a testator has a life insurance policy, the testator must change the beneficiary upon divorce if they do
not want a named beneficiary to get the benefits upon testator’s death
- Death and retirement benefits are not subject to intestacy
- Typically, bank accounts will be subject to probate to determine beneficiaries, BUT bank accounts can
be established as non-probate transfers (i.e., no probate/will required and not subject to intestacy) by
doing one of the following:
o ITF (In Trust For) – Can pay on some triggering condition other than just death
o POD (Pay on Death) – Money from a POD account will be paid on the person’s death
o TOD (Transfers on Death) – Like a POD but pertains to stocks rather than bank accounts
o Proportional & Beneficial Ownership – Depositor can change, take from, or add to the
account up until his death and whatever is left in the account upon depositor’s death is what is
transferred to the bene (i.e., that’s all the bene is entitled to)
 - A Will does not change beneficiary designations UNLESS specifically addressed
o General language in a Will does not supersede non-probate accounts/transfers
o Specific references to a Will do supersede non-probate accounts/transfers if it specifically
references the person’s account and the intention to revoke designation

Joint Tenants – A joint tenancy is when a property is held under circumstances that entitle one or more to the
whole of the property on death of the others. If H and W take the property together as JT’s – there is a
presumption of ROS. This presumption is rebuttable by clear and convincing evidence that:
1) There was no donative intent; OR
2) The JT was a mere convenience; OR
3) There was no desire to preserve a survivorship right
- “OR” means JT
- “AND” means TIC
A JT can be terminated by:
1) Death of a joint tenant
2) Dissolution of marriage
3) Homicide or Elder Abuse
4) Unilateral severance
a. Can deed property to yourself to change JT to TIC

Community Property with ROS – ROS is not presumed for CP. Must state that you want ROS in the deed
then spouse will not have to pay a Capital Gains Tax.

I. PROFESSIONAL RESPONSIBILITY

The attorney must be competent in representation – must have legal knowledge, skill and preparation
reasonably necessary for the representation.

The attorney owes a duty of confidentiality and loyalty to his clients, including intended beneficiaries. An
intended beneficiary can sue the attorney for drafting errors BUT prospective beneficiaries CANNOT sue the
drafting attorney when the Will was never signed by the testator.
The attorney must avoid representing clients with adverse interests. A non-client spouse is not owed a duty of
care when representing only one spouse as a client. When representing spouses in mutual estate planning, the
attorney must put spouses on notice of potential conflicts and have them sign a waiver that they understand.

The attorney-client privilege belongs to the client and the client can waive it. After death, the attorney-client
privilege belongs to the person’s personal representative (i.e., administrator, executor). A husband and wife
both have the attorney-client privilege.

Corrective Action: If the attorney makes a mistake and if the client is still alive/competent, the attorney
should redraft the documents. If the attorney makes a mistake after death of the client, the attorney should
petition the Court to reform the documents. Basically, use DRR scrivener’s error.

Fees: The attorney must have written engagement and fee agreement when services are expected to exceed
$1K. Statutory fees apply for ordinary probate services.

Retainers: Retainers must have a reasonable amount accountable to client, the attorney must promptly refund
unearned fees at conclusion of services, and deposit into attorney/client trust account and properly disburse.

The attorney CANNOT help his clients with the clients’ unlawful wishes.

TRUSTS OUTLINE

A. TRUSTS PARTICIPANTS & CLASSFICATIONS

Trustor/Settlor/Grantor – The person who puts the assets in the trust. Equivalent to the testator.

Trustee – Person who has legal title and is designated in the trust to carry out its terms. Basically, the legal
owner of the trust’s assets – Equivalent to executor or administrator.

Beneficiary – Holds equitable/beneficial title to assets in the trust. Types of beneficiaries include:
1) Outright – Asset/money goes directly to beneficiary, no strings attached
2) LE/TOY – Income or principal; Certain amount in trust is held to be paid to beneficiary for a life term
or TOY
 3) Remainder – Beneficiary who gets money/income from an asset after it has been given to another
beneficiary for life or TOY
4) Vesting – Beneficiary who gets money from the trust once his interest has vested upon the
occurrence/non-occurrence of a condition

Problem of Merger – A person can only be a trustor, trustee, and beneficiary at the same time if the trust
creates a LE for the trustor and the remainder beneficiary gets the trust after expiration of the LE.
There are two types of trusts: (1) express trusts AND (2) trusts by operation of law.

Express Trust – An express trust can be inter vivos OR testamentary.

An inter vivos trust is a trust made during the life of the trustor and the beneficiary doesn’t have to
wait for the trustor to die.
A testamentary trust is a trust that is stated in the Will.
An express trust can be created by:
1) Declaration by trustor
2) Lifetime transfer by owner to trustee
3) Testamentary transfer (i.e., pour over will)
4) Exercise of power of appointment
a. Beneficiary under a trust is able to kick some of those assets out into a new, different
trust creating a mini-trust with assets from existing trust
5) Enforceable promise

Trust by Operation of Law – A trust by operation of law can be a resulting trust OR a

constructive/involuntary trust.
A resulting trust is created when there is:
1) A purchase money trust; OR
a. Trust that results from the default of the buyer
i. In CA, this kind of trust makes the borrower a trustor and the trustee is someone
the bank nominates, which allows the trustee to take title of property if the
trustor does not make mortgage payments and the trustee transfers title to
bank/lender – Trustee does not have a legal right to foreclose unless the
payments have not been made
2) Incomplete disposition of trust property
 a. An equitable reversionary interest to effectuate the probable wishes of the trustor
b. Assets are pulled out of the trust then, if there is a Will, the assets are distributed in the
same manner
c. Fall back is intestacy
A constructive/involuntary trust is a remedy – NOT a trust. It is designed to put a hold on assets
when there is a dispute over who the beneficial owner is. It is not a remedy to cure a faulty Will. A
constructive trust can be used to enforce an oral promise to gift real property at death with justifiable
reliance.

B. ELEMENTS

To have a valid trust, there MUST be:

1) Trustor’s intent
a. Intent to place assets into trust for the benefit of someone else
b. Must have capacity – 18 years old and of sound mind
c. Capacity can be rebutted
2) Trustee
a. A trustee is not necessary at formation but necessary for administration
3) Trust property
a. Trust property is REQUIRED
b. Trust property can be in the form of:
i. Real property
1. Must be in signed writing (deed signed before trust is OK)
2. A trust that pertains to real property will only be valid if it signed by the
trustor and the trustee
ii. Personal property
iii. Life insurance
iv. Testamentary distributions by Will or death benefit designation
1. A trust can be funded by distribution of a Will
2. A valid trust exists even if trust is waiting for assets to pass through Probate
v. Petition to Court to confirm ownership of assets by Trust when not titled in Trust
vi. Social media accounts
4) Beneficiaries
 a. The beneficiaries MUST be ascertainable with reasonable certainty
b. The trustor has the power to select beneficiaries based on standard or discretion of trustee; OR
c. Power of appointment (see below)
5) Valid purpose
a. The purpose of the trust must not be illegal or against public policy
b. May be determined from distribution terms of Trust if not directly stated
6) Consideration
a. Not necessary at transfer of assets to trust

Oral Trusts – An oral trust can be made only for personal property with clear and convincing evidence of the
trustor’s intent and the terms. If real property is to be held in a trust, the SOF MUST be satisfied.

C. POWERS OF APPOINTMENT & RAP

Power of Appointment – The power of appointment is the power granted by the trusts’ terms to someone
other than the trustor to redirect the trust assets to those other than the named beneficiaries.
- Donor = The trustor – Person who has initial authority over creation of the trust
- Donee = Person who has received power of appointment
- Appointee = Person named to receive the assets
- Creating instrument = The trust itself
- Appointive property = The assets from the trust that are being redirected

The power of appointment requires:

1) Capacity; AND
a. Capacity for donor to grant
b. Capacity for donee to exercise
2) Donee’s method and intent to exercise
a. The power of appointment must be in writing with specific details that such writing is for
the exercise of the power of appointment

RAP – RAP applies to the power of appointment when successive generations are granted the authority.
A non-vested property interest will only be valid if:
 1) When the interest is created, it is certain to vest or terminate no later than 21 years after
the death of the measuring life; OR
2) The interest either vests or terminates within 90 years after its creation

If an instrument seems to violate RAP, an attorney can petition the Court to reform the document so that
RAP is not violated. The attorney must do this before the document is invalidated as a result of the
RAP violation.

Savings Clauses prevent the property from violating RAP because they set out a distribution scheme as
a way to look out for the intended beneficiaries.

Some states have exceptions for RAP:

1) Some states have completely done away with RAP for personal property
2) Some states allow a person the opportunity to opt out – But NOT in CA
3) Some states raise the number of years for personal property (90 years in CA – up to 1,000 in
other states)
Business entities ARE NOT subject to RAP (i.e., Corp, LLC, etc.).

D. BENEFICIARIES’ INTERESTS

To enforce a beneficiaries’ interest, there must be:

1) Probate Court jurisdiction/venue
2) Mandatory & discretionary distributions; AND
3) Standing

Probate Jurisdiction/Venue – To enforce the beneficiaries’ interest, the probate court must have:
1) SMJ over estates and issues arising out of trusts
2) In personam PJ over those named in the trust; OR
3) In rem PJ over anybody who stands to receive title of an asset; AND
4) The proper venue
a. Proper venue = Any judicial district within the county that the decedent died or where the
trustee lives
 b. If the trust explicitly states a choice of law to govern the trust, that choice of law should
be applied

Mandatory Distributions – Mandatory distributions are allowed under a trust. A mandatory distribution is
when a beneficiary is specifically named in the trust (i.e., reasonably ascertainable) and the trustee has no
choice but to pay funds to the beneficiary if funds are available. Language such as “shall” or “must” suggest
mandatory distributions.

Discretionary Distributions – For a discretionary distribution, there is no absolute or imperative distribution.

If the trust indicates that the trustee has discretion to pay the beneficiary according to the beneficiary’s
needs, then it is discretionary. If the trust is a needs-based trust, the trustee has an affirmative duty to inquire
as to the needs. If the trust is a care-based trust, the trustee has the right to tell the beneficiary that he will
not reduce the distribution amount (i.e., he can still go tell the beneficiary to go out and get a job). Tax
planning is an allowable consideration based upon the needs to reduce taxes.
BUT, regardless of what the distribution says, the trustee must be:
1) Reasonable in his exercise of discretion; AND
2) Distribution must be made consistent with fiduciary principles
a. Following the trust’s purpose
b. Acting in good faith
c. No self-dealing
i. Not illegal but creates a conflict of interest
d. No favoritism within a class of beneficiaries
i. No exculpatory clauses

Standing – To have standing, there must be an interest in the outcome. Person’s who typically have an interest
in the outcome are:
1) Spouses
2) Heirs at law
3) Named beneficiaries
4) Named trustee
a. Arbitration Clauses: CANNOT be enforced against the beneficiaries – the trustee cannot
force a beneficiary into arbitration
No Contest Clauses – A no-contest clause is a provision that penalizes a beneficiary for filing a pleading in
any court. If a beneficiary contests a trust, he may be disinherited.

No-contest clauses WILL ONLY BE ENFORCED IF:

1) There is a direct contest without probable cause; OR
a. If there is probable cause, then a direct contest can be made, even if there is a no-
contest clause
b. There is probable cause if, at the time of filing the contest, the facts known to the
contestant would cause a reasonable person to believe that there is a reasonable
likelihood that the requested relief will be granted after an opportunity for further
investigation or discovery
i. Exceptions to Probable Cause: If these are present, they can be brought against
a will or trust regardless of a no-contest clause – forgery, fraud, menace, duress,
undue influence, revocation, disqualification
2) An indirect contest when prohibited by the trust
a. An attempt to reclassify trust assets; OR
b. A creditor’s claim to avoid off-set for beneficiary’s debt
i. If alleged creditor is also a beneficiary, a no-contest clause can be triggered

It will NOT be considered a contest when a beneficiary files a petition for:

1) Interpretation of trust terms; OR
2) Trustee’s actions/honesty
a. i.e., if the beneficiary is unhappy with the trustee’s actions, he can file a petition to
review what the trustee has done
b. A challenge to the trustee’s action is not a contest to the trust itself because it’s a claim
that there’s something wrong with what the trustee is doing, not the trust itself

Transferability – Generally, a beneficiary has the right to voluntarily/involuntarily assign inheritance from
a will/trust AS LONG AS there is no spendthrift provision. Spendthrift provisions restrain the beneficiary’s
ability to voluntarily/involuntarily transfer his interest in the trust – He cannot give away or sell his rights
future income/capital and his creditors are unable to collect or attach such rights.

HOWEVER, these types of creditors are able to get to the trust assets even if there is a spendthrift clause:
 1) Child/spousal support
2) Felony restitution
3) Public support
a. i.e., if the beneficiary is on social security or other public aid – the government entity
can get the money back that they’ve expended for the beneficiary’s care
b. EXCEPTION  SPECIAL NEEDS TRUST: A trust that states the beneficiary will
only receive an amount that will not disqualify him from public benefits  Prevents
public support creditor from getting to the beneficiary’s assets in the trust
4) Federal tax lien
a. If the tax lien comes before the beneficiary has vested, then the federal government can
come after you
b. If the tax lien comes after the beneficiary has vested, then the federal government
cannot come after you
5) Income levy (limited to 25%)
6) Fraudulent transfers

In CA, spendthrift clauses DO NOT protect the trustor from his creditors. If the trustor is also a
beneficiary, a spendthrift clause cannot protect his own retained interest from his creditors.

Disclaimers – Beneficiary’s are allowed to disclaim/renounce their inheritance from the trust, except as to IRS
tax liens. Disclaiming/renouncing benefits of a trust are not a prohibited voluntary transfer under spendthrift
clauses.
For example, $100 back pay of child support is owed by trust beneficiary, but disclaimer of his entire trust
share is not a fraudulent transfer to avoid payments to ex-spouse.

Acceleration of Remainder Interest – Acceleration of the remainder interest after disclaimer of a LE (i.e., LE
expires) is generally allowed UNLESS:
1) There is intent to delay distribution based on expected lifespan of first beneficiary; OR
2) There is a spendthrift clause

E. MODIFICATION & TERMINATION OF TRUSTS

A trust can be modified or terminated by:

 1) The trustor
2) The trustee
3) The beneficiary
4) Law
5) Judicial authority

By Trustor – A trust can be modified/revoked while the trustor is alive and consent of the beneficiary is not
needed. Once the trustor dies, the trust is irrevocable and cannot be modified. If a trust is silent as to
modification/revocation, then it is presumed to be modifiable/revocable. If a trust is revocable, it is amendable.

If a trust is silent on how to modify/revoke, then it may be modified/revoked by a writing originating

from the trustor that is delivered to the trustee (statutory method).

If a trust states a method on how to modify/revoke, then it must be modified/revoked using the stated
method in the trust.

If there are multiple trustors, each trustor can modify/revoke the trust without consulting the others
BUT only as to the property that he contributed to the trust.
Power of attorney to modify/revoke a trust cannot be used. This is only allowed in CA.
By Trustee – When the trustor is dead and the trust is irrevocable, the trustee can modify/revoke the trust, but
must have a reason to do so:
1) Uneconomical principal
a. A trust is presumed uneconomical to continue if the principal amount of the trust is $40K or
less unless the court determines there are more important purposes or reasons for the trust to
continue to operate
2) Changed economic or tax circumstances unanticipated by the trustor
a. If something occurred financially that the trustor could not have reasonably anticipated, it may
be reasonable for the trustee to petition the Court to modify the trust in order to keep it viable
3) Combining simple small trust or sub-dividing complex large trust
a. A trustee can petition the court to combine mini trusts because it is uneconomical
b. A trustee can petition the court to make a large, complex trust into mini trusts for each
beneficiary to make it easier to run the trust
By Beneficiary – After the trust has become irrevocable, any beneficiary can revoke/modify the trust when
there is:
1) An uneconomical principal; OR
2) Changed economic or tax circumstances

Beneficiaries NEVER have the power to revoke/modify while the trustor is still alive. If the trust
becomes irrevocable, all beneficiaries (and the trustor if alive) can petition the Court to
modify/revoke the trust, UNLESS doing so defeats the material trust purpose.

By Law – A trust can be revoked/modified by law when there is:

1) Expiration of term
2) Fulfilled purpose
3) Unlawful purpose
a. In this case, assets go back to the trustor
4) Impossible purpose
a. Assets returned to estate by way of resulting trust (see above)
b. Basically, trusts purpose can never be fulfilled
5) Revocation
6) Court authority
a. The court determines when the trusts purpose has been fulfilled and to order distribution and
termination of trust

Judicial Authority – Trusts do not require judicial oversight to administer, but if there is a problem, probate
courts can modify/revoke the trust terms by looking at the choice of laws in the trust and applying the trust
definitions and rules of construction.
- Trust can have another state’s law in it so long as it doesn’t violate the CA CP laws
- The same rules used for constructing Wills also apply to trusts
o If it is a testamentary trust  Probate Courts will have jurisdiction over it
o If it is an inter vivos trust  Probate Courts are given statutory authority for jurisdiction

The Court may deviate from the trust terms (modify) if there is a substantial impairment to the
material trust purpose. Deviation will be allowed only:
1) To protect the material purpose of the trust
 2) Under grave circumstances; BUT
3) Not as mere sympathy for the beneficiary

HOWEVER, you can modify a trust to reform it if there is a scrivener’s error and the Court may
allow a deviation from the distribution provision based on principles of equity and the intent of the trustor.

Equitable deviation is not allowed in CA  This is a developing trend to allow deviation that is in
furtherance of the material trust purpose.

A subsequent will does not modify the trust UNLESS there are specific references to the trust.
The substituted judgment rule can be used to create a special needs trust.

F. CHARITABLE TRUSTS

The purpose of a charitable trust is to provide a benefit to the community to promote philanthropic or
humanitarian purposes – i.e., religious, scientific, public safety, literary, educational, environmental, amateur
athletics, prevention of cruelty to animals or children, social welfare, etc.

A benevolent purpose of a trust is not for a community benefit, rather its more of just a kind gesture.

A trust that has a charitable purpose is not subject to RAP and does not require an ascertainable
beneficiary.

Charitable trusts have the following special characteristics:

1) Favorable tax considerations
a. Exempt from decedent’s taxes
2) Ascertainable beneficiaries not required
3) RAP does not apply
4) Enforcement by State AG’s office
a. Generally, a beneficiary of a charitable trust cannot sue for the benefits from the trust
b. Instead, enforcement suits are brought by the AG’s office
Cy Pres Doctrine – Under the Cy Pres Doctrine, a court is required to award the funds to a charity that most
resembles the one that was to be the recipient of the trust

To apply the Cy Pres Doctrine, look for:

1) Charitable purpose
2) Impractical, impossible, illegal, or surplus funds for specific purpose
3) Charitable intent of trustor
4) Necessary modifications are reasonable

Honorary Trusts & Pet Trusts – An honorary trust that has an honorary purpose is valid but not enforceable –
i.e., erecting statues of dead people, care of graves, care of animals, saying of masses. Pet trusts are enforceable
when the trust pertains to the care of a definite group of animals, for the lifetime of animals alive at the death
of the trustor, but are subject to Court review for excessive funding at the expense of remainder beneficiaries.
RAP applies, but the measuring life can be a non-human.