120-hour rule – beneficiary of a testamentary instrument is considered to have pre-deceased the

decedent if they are unable to survive for at least 120 hours after the decedent passes.
Beneficiary who fails to survive the grantor by 120 hours is presumed to have pre-deceased
them.

Abatement – reduction of an intended gift. Occurs during Spouse’s Elective Share and Omitted
spouse/child

Acts of independent significance ademption – permits a testator to effectively change the

disposition of their property without changing a will if acts or events changing the disposition
have some significance beyond avoiding the requirements of the will. Applied when a testator
controls the membership devises assets to a class of beneficiaries or when a testator devises a
general type of property and then changes the specific items of property within that category. Act
that occurs that can affect the distribution of a will or trust, but not with the intention of affecting
the distribution.

Ademption – if a gift given in a testamentary instrument no longer exists, or is no longer the

testator’s property at death. Gift simply not given.

Adopted child – treated like a natural child if formalities are met. Considered issue.

Adoption – legal process by which a non-natural child becomes considered a natural child.

Agent – a fiduciary who hold responsibility on behalf of another. Someone/something that works
on behalf of an interested party, often their employer.

Allocation of principal and income – Trustee has a duty to allocate income to a living beneficiary
(life tenant), and principal to a remainderman. Duty extends that income cannot be sought at the
expense of principal and vice versa – trustee must remain loyal to all beneficiaries to the trust –
successive beneficiaries. Allocation is governed by the terms of the trust or will.

Anti-lapse – A statutory solution to lapse in which a gift that is supposed to pass to a deceased
beneficiary may pass to their issue. Run out of issue  goes to the residuary. If no residuary
clause, then the gift goes to intestacy.

Attestation – the action of being a witness to a will.

1) Intent, 2) writing, 3) signed/dated, 4) disinterested witnesses.

Attorney-in-fact – person who acts under power of attorney – an agent who is authorized to act
in a fiduciary capacity on someone’s behalf.

Beneficiary – the recipient of a gift.

Capacity to make a will – Testators ability to understand the extent of their bounty and the nature
of their actions in gifting their bounty as well as the circumstances of property and family.
Testamentary capacity exists when the testator understands the nature and extent of their
property and knows the natural objects of their bounty.

Caretaker presumption – rebuttable presumption that if a caretaker is a beneficiary in a

testamentary instrument, that they exerted undue influence or fraud. Don’t receive gift.
Rebuttable by the 6-month rule. A rebuttable presumption of undue influence arises when a
dependent adult makes a testamentary gift to their caretaker. The presumption may be rebutted
by proving, through clear and convincing evidence, that the gift was not the product of fraud or
undue influence.

Cash dividends from stock (Trust) – Trust income.

Charitable Trust – a trust that does not have an ascertainable beneficiary.

- Intent, trust res, trustee, legal purpose, no ascertainable beneficiary

Community property – In CP states, presumption that all property and debts incurred during the
life-span of a marriage are considered community property, with some exceptions given to bonds
and inheritance.

Consanguinity – intestate line of inheritance. Level of blood relationship. Degree of relative

generational lineage.

Constructive Trust – trust created by the court as a remedy for unjust enrichment. The party that
was unjustly enriched acts as a trustee.

Creditor rights to trust-held funds – if beneficiary can attain trust held funds, so can a creditor.
The beneficiary has access to trust held funds when they take a disbursement, unless they are
also the settlor of a living trust, in which case they always have access. Exception:
Child/Spousal, repayment of public support, and necessaries of life can be accessed w/o
beneficiary access.

Cy pres – applies to charitable trusts, means “as near as”, must find another beneficiary that is as
close as possible to the one described if it no longer exists. Charity with same/similar purpose.

Decedent – the dead guy or gal.

Dependent relative revocation (DRR) – allows a previously revoked will to be revived when a
subsequent will is revoked with that intention.

Discretionary Trust – trustor gives wide discretion to the trustee as to how do distribute the trust
assets.

Disinterested witness – witnesses to a will cannot be beneficiaries. Witness that does not receive
anything from the will.

Diversify – duty of trustee to invest the trust in diverse fields. Prudent investor rule. Must
diversify the investments of the trust to avoid one investment pulling down the value of the trust,
because they have a duty to preserve the trust property.

Drafter presumption – conclusive presumption (unrebuttable) that if the drafter of a will is a

beneficiary, there was fraud or undue influence.

Duress – undue influence or a constraint (pressure applied) illegally exercised to force someone
to perform an act.

Duty of loyalty – duty of a trustee to act without personal economic conflict. (no self-dealing)
Duty to the beneficiaries. Fiduciary duty.

Duty to administer – duty of a trustee to carry out the terms of the trust.

Duty to communicate – duty of a trustee to keep beneficiaries and settlor’s informed of the
trust’s progress.

Duty to defend – duty of a trustee to defend the trust in legal action. Comes up in omitted child
or creditor rights.

Duty to follow instructions – duty of trustee to carry out the terms of the trust.

Duty to preserve trust property – Duty of trustee to preserve trust property. Cannot let property
fail, duty to keep productive.

Duty to separate/not to comingle funds – duty of trustee to keep funds separate, especially theirs.

Escheats – decedent’s estate goes to the state when no heir can be located.

Estate – all the money and property owned by a particular person, especially at death.

Probate estate v. non-probate estate – some estates go through probate, other estates or portions
of them do not because they are bequeathed by a testamentary instrument that does not require
probate. Wills always require probate. Properly executed trusts do not require probate. Certain
pay on death instruments, such as life insurance, do not require probate.

Executor – person appointed by testator or by court to disperse of testamentary gifts as per the
terms of the will.

Exoneration – Common Law rule that requires that real property be descended without debt.
Does not apply to personal property. (now can pass w/ mortgage or lien)

Express Trust – trust created in express terms. (intent, legal purpose, trust res, and ascertainable
beneficiary)

Faulty adoption – Attempted adoption is not completed due to some legal impediment. Know
that adoption wasn’t completed.
Fiduciary duty – the duty to act in the best interest of another person or entity. (duties of loyalty
and care)

Fiduciary presumption – Certain professions or positions hold a presumption of having a

fiduciary duty.

Fraud – intentional misrepresentation of material fact to induce someone to do something that

they would not have ordinarily done but for the deception.

Fraud in inducement – lie to get gift written into the will.

Fraud in execution – lie that affects the distribution.

Freedom of disposition – freedom to dispose of your property any way you want. Cannot be
illegal or against public policy.

Gift changes in form – Tracing.

Heir – a beneficiary appointed by the court. Beneficiary named in a testamentary instrument.

Holographic wills – valid unwitnessed will where the substantive portions are handwritten in the
testators handwriting and signed by the testator.

Implied Trust – court decides a trust exists based on someone’s intention but not expression.

Income vs. Principal (trust) – trusts have principal, property/assets they hold when they were
created, and income, that is the profits gained from the investment of the trust principal.

Incorporation by reference – the act of including a second document or subsequent documents in

another document by mere mention of the second or subsequent documents.

Insane delusion – false conception of reality that affects a will’s creation or disposition (gifting).

Integration – Combining multiple documents at the same time to create a testamentary

instrument with that intent.

Interested Witness – a witness that is a beneficiary to the will. Invalidates their status as a
witness. Invalidates attested will since it does not follow formalities.

Intestate – to die without leaving a (valid) testamentary instrument.

Lapse – beneficiary of a gift pre-deceases the testator.

Line of sight/conscious presence – The will must be signed by witnesses who have a line of sight
and awareness of the testator’s signing.
Married – to be legally married.

Next of kin – Closest living relative.

Omitted child – a child that is born after a will is written and is unintentionally left out. Can also
be an unknown child for a male testator if unknown at the time the will is written. Entitled to
intestate share, usu. requires abatement of listed beneficiaries’ gifts/shares. (only an issue when
kids are named – avoid by saying: to all my children)

Omitted spouse – spouse married after will is written and not amended. Entitled to intestate
share, usu. requires abatement of listed beneficiaries’ gifts/shares.

Oral wills – Not a valid will.

Per capita – CA Law  shares are determined at the first generational level with living issue.
Alive and deceased w/living issue determine the number of equal shares. Only applies to
Intestate succession.

Per stirpes – equal shares determined at the next generational level (children/directly beneath the
decedent). If deceased, shares pass to issue.

Policy balance formalities vs. intestacy – Reasonably avoid intestacy. Will forgive a formality
flaw in order to appease the clear intent of the testator. Balancing question.

Pour-over will – legal document that ensures an individual’s remaining assets will transfer to a
previously established trust upon their death.

Probate – legal process of testamentary instrument review to determine validity and authenticity.
Legal process by which probate estate is distributed. Wills and Intestate go through probate.

Provided for outside of the will – assets that cannot be conveyed to others through a will, do not
pass through probate – pay on death accounts.

Prudent investor rule – trustee has a fiduciary duty to act as a prudent investor on behalf of the
trust. This includes (inter alia) the duty to diversify, understand the market and tax consequences
of investments, and attaches to duty to make the trust productive.

Putative adoption – a good-faith belief that an adoption is valid/legal. Almost always a fraud
issue.

Putative spouse – a good-faith belief that a marriage is valid/legal. Almost always a fraud issue.

Quasi-community property – property acquired by spouses in another state, that had it been
acquired in CA or CP state, would have been considered community property. Domiciled in CA
at time of execution – death or divorce.
Registered domestic partner – treated the same as a legally married spouse at the time of
testator’s death.

Republication by Codicil – A document that amends a will if it meets the same will formalities
(intent, witnessed, signed/dated, in writing). It effectively republishes the date of the will.

Residuary estate – assets of the estate that are left over after all gifts are bequeathed and debts,
taxes, admin costs, probate fees, and court costs are paid. (Last in order – what remains) Any
portion not specifically designated and with a residuary clause.

Residue – aggregate of all the probate assets of the estate which have not otherwise been paid
towards debts, expense, or taxes of the estate, or given away in the testator’s will via specific,
demonstrative, or general gifts. (Last in order – what remains) Residuary clause saves from
becoming intestate.

Resignation as trustee – refers to the steps a trustee must take to resign if they no longer wish to
administer a trust. (do not need consent – 13th amendment)

Resulting Trust – equitable reversion that arises by operation of law whenever a person has
created an express intentional trust, but the express trust fails or does not completely dispose of
trust property. Made by court when trust is completed but there are still trust assets that need to
be distributed.

Revocation of a will – a testator revokes a will by physical act or subsequent instrument.

Sales of trust assets – trustee can sell trust property when it is specified in the trust document.
Duty to preserve trust property. Can sell trust property when it is required and is in the interest of
the beneficiaries.

Secret trust – non-enforceable. property is left to a person with the understanding that they will
hold the property as a trustee for the benefit of beneficiaries not named in the will.

Self-proving affidavit – a document that can be presented to the probate court to affirm that a
deceased person’s last will and testament is true. (requires notary or witness formalities)

Separate property – property that is acquired outside of a marriage, or by gift or devise

(inheritance).

Settlor – person who writes/creates the trust.

Signature – a person’s individual handwritten mark of authenticity. Often times someone’s name
written in a distinctive way as a form of identification in authorizing or validating an official
document. Mark that authenticates identity.

Slayer Rule – killer cannot inherit/not entitled to benefit if they intentionally and feloniously
killed testator. Extends to step-kids. An individual who intentionally and feloniously kills
decedent, cannot inherit.

Spendthrift Clause – Clause in trust that prevents creditors from accessing trust funds by making
the distribution discretionary upon the trustee.

Spouse – legally married person.

Stock dividends from stock – profits shared with shareholders of companies, independent of
stock price.

Testacy v. Intestacy – to die with a testamentary instrument vs. dying without a testamentary
instrument.

Testamentary Trust – trust created in a will. (requires formalities of a will and formalities of a
trust)

Testate/Intestate - to die with a testamentary instrument vs. dying without a testamentary

instrument.

Testator – the person who made a will.

Testator’s Intent – the intent of the decedent to disperse their estate as they see fit.

Trust – a relationship whereby one person holds legal title for the benefit of another/others. A
trust requires: legitimate purpose, trust res, a trustee, and ascertainable beneficiaries. (4)
- Intent
- Trust Res
- Ascertainable Beneficiaries
- Legal Purpose
- (trustee) appointed by court, so not an element at creation, but element at execution

Trustee – person given control over administration of property in a trust with a legal obligation to
administer it solely for the purposes specified.

Trustee duties – Many, but mostly, duty of care, duty of loyalty, duty to diversify, duty to
preserve the trust property, duty to put the trust property to work (invest), duty of impartiality,
duty to communicate, duty to defend, duty to not delegate that which he can do, duty to account,
duty to administer under the terms of the trust.

Trustee standard of care – trustee must perform their administrative duties with the same care
and skill as would be expected from a prudent person performing in a similar capacity. Prudent
investor rule.

Trustor – entity that creates a trust.

Undue influence – excessive persuasion that causes another person to act or refrain from acting
by overcoming that person’s free will which results in inequity.

Will – a testamentary instrument that passes wealth upon death that goes through probate.

Will formalities (4)

- Intent
- In Writing
- Disinterested Witnessed
- Signed/Dated
- (Capacity)
- (Must be 18+)

Witness capacity (4) – sufficient mental capacity to perceive, remember, and narrate the incident
they observed – in this case, attestation of a will. (1) understanding language, (2) being an adult
of sound mind, (3)understand what they are witnessing is a will or testamentary instrument, (4)
during testator’s lifetime.

Remedies against trustee

- To compel the trustee to perform the trustee’s duties
- To enjoin the trustee from committing a breach of trust
- To compel the trustee to redress a breach of trust by payment of money or otherwise.

- Can be held personally liable for the damage they cause as trustee.
- Can be removed as trustee.

Surviving Spouse’s right to SP upon intestacy – CA law allows that a surviving spouse, with
more than 1 issue, gets 1/3 of SP in intestacy. The other 2/3 are split between the remaining issue
if there are at least 2.