CALIFORNIA WILLS, TRUSTS & ESTATES — BAR ONE-SHEET (ELEMENTS & MNEMONICS)
Lean California issue-spotting checklist — elements and mnemonics only. Pair with the full California Wills, Trusts & Estates Master Outline for depth, then practice timed essays at BarExamNextGen.
KEY PRINCIPLE #1 — INTESTATE SUCCESSION
- Prob. §6401: surviving spouse takes ALL community property + ALL quasi-CP.
- Spouse's share of decedent's SP: ALL if no issue/parent/sibling; ½ if one child or parents/siblings; ⅓ if more than one child.
- Issue take by representation (§240); §6402 distributes to descendants, then parents, then siblings' issue.
- 120-hour survival rule (§220); adopted children inherit (§6450); stepchild only if foster/adoption barrier (§6454).
KEY PRINCIPLE #2 — WILL FORMALITIES & HOLOGRAPHS
- §6110 attested will: writing, signed by testator, witnessed by two who saw signing/acknowledgment.
- §6110(c)(2) harmless error / dispensing power: non-conforming will admitted if proponent shows by clear and convincing evidence testator intended it as a will.
- §6111 holographic will: material provisions + signature in testator's handwriting; date NOT required; no witnesses needed.
- §6112 interested witness: will still valid, but creates presumption of wrongdoing → interested witness loses excess over intestate share unless presumption rebutted.
KEY PRINCIPLE #3 — REVOCATION & REVIVAL
- Revoke by subsequent writing or physical act (burn, tear, cancel) with intent (§6120).
- §6122 — divorce/annulment revokes all provisions in favor of former spouse (and fiduciary nominations); revived on remarriage.
- DRR (dependent relative revocation): disregard revocation premised on mistaken belief a new disposition is effective when it isn't.
- Revival: revoked will revived only if testator shows intent to revive (§6123).
KEY PRINCIPLE #4 — COMPONENTS, LAPSE & CHANGES IN PROPERTY
- Anti-lapse §21110: if predeceasing beneficiary is kindred of testator (or testator's spouse), gift passes to that beneficiary's issue — unless contrary intent / words of survivorship.
- Ademption by extinction (specific gift gone); §21134 traceable proceeds; §21133 stock splits/dividends pass.
- Incorporation by reference; acts of independent significance; pour-over to trust (§6300).
- Class gifts; abatement order: intestate → residuary → general → specific.
KEY PRINCIPLE #5 — OMITTED SPOUSE & CHILD
- §21610 omitted spouse (married after will): takes intestate share (½ CP + SP share, capped at ½ SP). Exceptions §21611: intentional omission shown, provided for outside will, or valid waiver.
- §21620 omitted child (born/adopted after will): takes intestate share. Exceptions §21621: intentional omission, provided for outside will, or substantially all to other parent.
KEY PRINCIPLE #6 — CAPACITY, UNDUE INFLUENCE & DON'T-INHERIT RULES
- Capacity (§6100.5): know nature of act, the property, natural objects of bounty.
- Undue influence presumption: confidential relationship + active procurement + undue benefit.
- §21380 presumption: donative transfer to drafter, care custodian, fiduciary (and their relations) presumed product of fraud/undue influence; rebut by clear and convincing evidence; §21384 independent attorney review (certificate) cures.
KEY PRINCIPLE #7 — NO-CONTEST CLAUSES
- §21310–21315: no-contest clause enforced ONLY against (1) a direct contest brought without probable cause, (2) certain creditor/ownership challenges, or (3) pleading to challenge a transfer if the instrument so provides.
- Probable cause = reasonable likelihood the contest would succeed (safe harbor for good-faith challenges).
KEY PRINCIPLE #8 — TRUST CREATION & REVOCABILITY
- Elements: settlor with intent + trust property (res) + ascertainable beneficiaries + valid purpose + (testamentary needs will formalities). Mnemonic: "I-R-B-P."
- §15400: in California a trust is presumed REVOCABLE unless the instrument expressly says irrevocable (opposite of common law).
- Revoke per method in instrument; if none, by writing delivered to trustee (§15401).
- Charitable trusts: indefinite beneficiaries OK; cy pres when purpose fails; AG enforces. RAP doesn't apply to charitable.
KEY PRINCIPLE #9 — TRUSTEE DUTIES & MODIFICATION
- Duties: loyalty, prudence (UPIA), impartiality, not to delegate (limited), account/inform. No self-dealing.
- Spendthrift clauses valid; exceptions: child/spousal support, necessaries, certain creditors.
- Modification/termination: settlor consent (revocable) or all beneficiaries + no material purpose frustrated; cy pres / changed-circumstances (§15409).
KEY PRINCIPLE #10 — NONPROBATE TRANSFERS & SIMULTANEOUS DEATH
- Will substitutes pass outside probate: joint tenancy (right of survivorship), POD/TOD accounts, life insurance, revocable trusts, retirement beneficiary designations.
- §5040: nonprobate transfer to a former spouse is revoked by dissolution (mirrors §6122).
- Slayer rule §250: one who feloniously and intentionally kills the decedent is treated as h
ADDITIONAL HIGH-YIELD POINTS
Integration vs. incorporation by reference. Integration asks which papers were physically present and intended as part of the will at execution; incorporation by reference (§6130) admits a separate writing if it existed when the will was executed, the will manifests intent to incorporate it, and it is described with reasonable certainty. Distinguish from acts of independent significance, which validate references to facts/documents having their own lifetime purpose.
Tangible-property list (§6132). CA permits a will to refer to a separate signed (or handwritten) writing disposing of tangible personal property (not cash/business assets) up to statutory value caps; the list may be made or altered after the will is signed. A statutory CA exception to the rule that incorporated writings must pre-exist the will.
No residue of a residue. A void or lapsed residuary gift that escapes anti-lapse does not pass to other residuary takers under common law; California §21111 reverses this—a failed residuary share passes to the other residuary beneficiaries pro rata before falling to intestacy. CA-distinct rejection of the common-law trap.
Lapse hierarchy (§21111). A failed gift passes: (1) per anti-lapse to the predeceasing beneficiary's issue, else (2) to remaining residuary takers, else (3) by intestacy. Words of survivorship (“if she survives me”) defeat anti-lapse.
Exoneration abolished (§21131). A specific gift of encumbered property passes subject to the lien; the beneficiary takes it with the debt unless the will directs otherwise. CA rejects the common-law presumption that liens are paid from the residue.
Powers of appointment. Donee may appoint only as the instrument permits; a general power allows appointment to self/creditors/estate, a special (limited) power excludes them. Exercise requires the requisite intent; a residuary clause exercises a general power only if it shows intent or the power lacks a gift-in-default. Property under an unexercised general power can reach the donee's creditors.
Predeceased-spouse property (§6402.5). If an intestate decedent leaves no spouse or issue, real property the decedent received from a predeceased spouse (within 15 years) or personal property (within 5 years) passes back to the predeceased spouse's kin. CA-distinct “back-to-the-family” carve-out.
Advancements (§6409). A lifetime gift is an advancement against an intestate share only if a contemporaneous writing by decedent (or acknowledgment by heir) so states; otherwise it is not deducted. CA writing requirement narrows the common-law presumption.
Disclaimer (§275 et seq.). A beneficiary may disclaim by signed writing filed within a reasonable time (presumed timely if within 9 months); the disclaimant is treated as predeceasing, so the gift passes as if she died first—a valid post-death planning and slayer/creditor tool.
Prudent Investor (§16045–16054). Trustee must invest as a prudent investor managing the whole portfolio for risk-adjusted total return, diversify unless special circumstances, and may delegate investment functions with care in selecting/monitoring the agent. Modern portfolio theory replaces asset-by-asset prudence.
Spendthrift exceptions. A valid spendthrift clause bars voluntary/involuntary transfer of the beneficiary's interest, but reachable by: child/spousal support, suppliers of necessaries, restitution to crime victims, and (as to the settlor-beneficiary) the settlor's own creditors to the extent of the settlor's retained interest.
Revocable-trust creditors (§18200; §19001). During the settlor's life, property of a revocable trust is reachable by the settlor's creditors; at death, the trust estate is liable for the settlor's debts to the extent the probate estate is insufficient. Revocability does not shield assets from settlor's creditors.
Trustee removal (§15642). Court may remove a trustee for breach, unfitness, insolvency, hostility/conflict impairing administration, excessive compensation, or where removal serves beneficiaries' best interest; a no-contest clause does not bar a good-faith removal petition.
Resulting & constructive trusts. A resulting trust returns property to the settlor/estate when an express trust fails or its purpose is satisfied; a constructive trust is an equitable remedy compelling a wrongful holder (fraud, undue influence, breach) to convey to the rightful party—not a true trust.
Honorary & pet trusts (§15212). A trust for the care of a designated animal is enforceable for the animal's life; trusts for noncharitable purposes without beneficiaries are honorary and limited in duration.
Financial elder abuse (Welf. & Inst. Code §15610.30). Wrongful taking/retention of an elder's (65+) property by undue influence supports civil liability with attorney's fees and double damages; intersects with §21380 transfer presumptions and undue-influence will contests. High-yield CA overlay on capacity disputes.
★ ONE-LINE ATTACK ORDER
Valid will? (capacity → execution §6110 / holographic §6111 / §6110(c)(2) harmless error) → components & changes (revocation, §6122 divorce, anti-lapse §21110, ademption) → omitted heirs → contests (capacity / undue influence §21380) → trusts (creation, type, trustee duties) → intestacy §6401.