Wills & Succession

Intestate succession, execution and revocation of wills, will contests, and the California Probate Code rules on construction.

1 chapter1 hour of reading15 practice questions

Read chapter 1 free Practice essays

Chapters

1Intestate Succession and the Effect of Death on Marital PropertyThis chapter explains what passes at death without a will, and to whom, under the California Probate Code. It separates probate from nonprobate property, splits community and quasi-community property at death under Probate Code §§ 100 to 102, and applies the 120-hour and simultaneous-death rules. It then computes the surviving spouse’s share (§ 6401) and the other heirs’ shares (§ 6402), divides among descendants under §§ 240, 246 and 247, and closes with four California practice items and a mini-essay.74 minFree

How California differs

From chapter 1

CACalifornia distinction

Survivorship title for spouses

General rule (federal / majority)

Many common-law states let spouses hold land as tenants by the entirety, a form of joint ownership with survivorship open only to married couples.

California

California does not recognize tenancy by the entirety. Spouses may instead take title as community property with right of survivorship (Civ. Code § 682.1). When one spouse dies, the survivor takes the whole without probate.

If a deed in the facts uses this title, the decedent’s half is a nonprobate asset. It does not pass through the will or intestacy.

CACalifornia distinction

No elective share in California

General rule (federal / majority)

Most states that are not community property states protect a surviving spouse with an elective share. The survivor may reject the will and take a fixed fraction of the estate, often one-third.

California

California has no elective share. Ownership protects the survivor instead. The survivor owns one-half of the community property during marriage and receives one-half of the decedent’s quasi-community property at death (§ 101).

On a California essay, do not write “elective share”. Write the § 100 and § 101 split instead.

CACalifornia distinction

Survival of will beneficiaries

General rule (federal / majority)

A number of states follow the Uniform Probate Code (§ 2-702). It applies the 120-hour survival rule to will beneficiaries and to most other transfers at death, not only to heirs.

California

California applies it only to intestate heirs (§ 6403) and to the California statutory will (§ 6211). Other will beneficiaries need only survive, shown by clear and convincing evidence (§§ 21109, 222).

Test an intestate share for 120 hours; test a will gift for survival alone.

Lessons

Thomas Ellison

Wills & Succession lecturer

Certified Specialist in Estate Planning, Trust and Probate Law; probate litigator.

Our lecturers are AI-voiced teaching personas; the portraits are illustrations.

Video lessons for Wills & Succession are being recorded.

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