CALIFORNIA WILLS, TRUSTS & ESTATES MASTER TREATISE OUTLINE
California wills, trusts, and estates is one of the most heavily tested subjects on the California Bar Examination, appearing in both the essay and performance-test components and frequently crossing over with Community Property, Professional Responsibility, and Civil Procedure. Unlike many MBE subjects, this area is governed almost entirely by the California Probate Code rather than common law, and California has made a series of deliberate departures from the majority and Uniform Probate Code (UPC) approaches that the examiners love to test precisely because they catch students who studied only the national rules. This treatise walks through the field in the order an estate moves from death to distribution: intestacy, the law of wills (capacity, execution, holographs, revocation, and construction), trusts (creation, the revocable living trust, modification, and trustee duties), and the cross-cutting doctrines of powers of appointment, the rule against perpetuities, and probate administration. Every section carries an essay-writing tip, a California-specific bar tip, and a worked example, because the difference between a passing and failing answer is almost always whether the student spotted the California distinction and cited the correct Probate Code section.
I. INTESTATE SUCCESSION
Intestate succession governs distribution when the decedent dies without a valid will, when a will fails to dispose of all property (partial intestacy), or when a will is wholly or partially invalid. The statutes distribute property to ever-more-remote relatives in a fixed statutory order.
A. The Surviving Spouse's Share — Community and Separate Property
Rule: The surviving spouse (or surviving registered domestic partner, who is treated identically) takes the decedent's one-half of the community property and one-half of the quasi-community property, meaning the spouse ends up with 100% of all community and quasi-community property (Prob. Code § 6401(a)-(b)). The decedent owned only half of the community estate; that half passes to the survivor, who already owned the other half.
Rule: The surviving spouse's share of the decedent's separate property depends on who else survives (Prob. Code § 6401(c)): (1) the spouse takes all separate property if the decedent left no surviving issue, parent, sibling, or issue of a deceased sibling; (2) the spouse takes one-half if the decedent left one child (or issue of one deceased child), or left no issue but a parent or issue of a parent; and (3) the spouse takes one-third if the decedent left more than one child, one child and the issue of a deceased child, or the issue of two or more deceased children.
Quasi-community property is property acquired by the decedent while domiciled outside California that would have been community property had it been acquired here; on death it is treated like community property (§ 66, § 6401(b)).
ESSAY WRITING TIP: Always begin an intestacy essay by characterizing every asset as community, quasi-community, or separate property before applying any distribution rule. The spouse's share is calculated separately for each category, and a single sentence misclassifying an asset will cascade into a wrong distribution for the entire estate. Lay out a property-by-property chart in your scratch outline.
CA BAR TIP: Watch for the registered domestic partner. California treats a surviving registered domestic partner exactly like a surviving spouse for all intestacy purposes (Prob. Code § 37), a point the examiners use to test whether you know California's broader definition. Also remember quasi-community property has no analog in most MBE materials — its presence is a near-certain signal that the question was written specifically to test California law.
EXAMPLE: H dies intestate domiciled in California, survived by W and two children from a prior marriage. The estate consists of $400,000 community property and $300,000 of H's separate property. W takes H's half of the community property ($200,000) plus her own half, for $400,000 total community property, and one-third of the separate property ($100,000) because more than one child survives. The two children split the remaining two-thirds of the separate property ($200,000), $100,000 each, by representation.
B. Distribution to Issue, Parents, and Collaterals
Rule: The portion of the intestate estate not passing to the surviving spouse, or the entire estate if there is no surviving spouse, passes in the following order (Prob. Code § 6402): (1) to the decedent's issue, by representation; (2) if no issue, to the decedent's parents equally; (3) if no parent, to the issue of the parents (the decedent's siblings and their issue), by representation; (4) if none, to the grandparents or their issue (aunts, uncles, cousins); (5) if none, to the issue of a predeceased spouse; (6) if none, to the next of kin in equal degree; (7) if none, to the parents of a predeceased spouse or their issue; and (8) if no taker whatsoever, the estate escheats to the State of California.
Rule — Representation (§ 240) versus Per Capita. California's default method of dividing among issue is "representation" under Prob. Code § 240 (sometimes called modern per stirpes or per capita with representation): the estate is divided into equal shares at the first generation in which there are living takers, with one share for each living person at that level and one share for each deceased person at that level who left living issue; the shares of deceased persons drop down by right of representation. Strict (English) per stirpes (§ 246) and per capita at each generation (§ 247) apply only when the instrument expressly so directs.
Rule — Portion Attributable to a Predeceased Spouse (§ 6402.5). When a decedent dies intestate without issue but had been married, certain real property from a predeceased spouse who died within 15 years, and certain personal property (worth $10,000+) from a predeceased spouse who died within 5 years, passes to the predeceased spouse's relatives rather than the decedent's own collaterals — an "anti-windfall" statute preventing one family's property from ending up with in-laws.
ESSAY WRITING TIP: When dividing among issue, draw the family tree and label each generation. State explicitly that California uses § 240 representation by default, find the first generation with at least one living member, and divide there. Examiners award points for naming the method and applying it correctly, not merely for reaching the right dollar figure.
CA BAR TIP: Section 6402.5's predeceased-spouse carve-out is a uniquely Californian trap that rarely appears in national bar prep. If a fact pattern stresses that the decedent's spouse died a few years earlier and that the property (especially a house) originally came from that spouse, flag § 6402.5 — it can redirect an entire estate away from the obvious takers.
EXAMPLE: D dies intestate, unmarried, no living children but three grandchildren: A (child of deceased son S1) and B and C (children of deceased son S2). Under § 240, the first generation with living takers is the grandchildren, so the estate splits into three equal shares — A, B, and C each take one-third. Under strict per stirpes it would split first at the children's level (half to each son's line), giving A one-half and B and C one-quarter each — illustrating why naming the method matters.
C. Status Problems — Adopted, Stepchildren, Foster, and Nonmarital Children
Rule: A parent-child relationship for intestacy exists between a person and the person's natural parents regardless of marriage, and between an adopted person and the adopting parents (Prob. Code § 6450). Adoption generally severs the relationship between the adopted child and the natural parents (Prob. Code § 6451), so the adopted child inherits from and through the adoptive family, not the natural family.
Rule — Stepparent/Foster Adoption Exception (§ 6451(a)). The relationship between an adopted person and a natural parent is not severed (allowing inheritance from both lines) if (1) the natural parent and child lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other at conception and died before birth; and (2) the adoption was by the spouse of either natural parent or after the death of either natural parent.
Rule — Equitable Adoption (§ 6454). A foster parent or stepparent may be treated as a parent if (1) the relationship began during the person's minority and continued throughout their joint lifetimes, and (2) clear and convincing evidence shows the foster parent or stepparent would have adopted the person but for a legal barrier. The "legal barrier" is strictly applied and must have existed throughout the relationship.
Rule — Nonmarital Children. A nonmarital child inherits from the natural mother automatically and from the natural father if paternity is established under the Uniform Parentage Act standards incorporated into § 6453 (e.g., a court paternity judgment, a holding-out, or clear and convincing evidence the father openly acknowledged the child).
ESSAY WRITING TIP: Status questions are essentially threshold questions — resolve whether a parent-child relationship exists before you place anyone on the family tree. Phrase your analysis as "Is there a parent-child relationship under §§ 6450–6454?" and march through each sub-rule. A child who fails the status test simply is not "issue" and drops out of the distribution entirely.
CA BAR TIP: The dual-inheritance stepparent-adoption scenario (child adopted by stepparent after a natural parent's death) is heavily tested in California because it produces the counterintuitive result of inheriting from three parental lines. Memorize the two-prong § 6451(a) exception cold. Likewise, the § 6454 equitable-adoption "legal barrier" rule is a frequent essay hook — and note that under Estate of Ford, mere love and affection without a would-have-adopted-but-for-a-barrier showing is insufficient.
EXAMPLE: Child C's natural father F dies. C's mother then marries stepfather SF, who adopts C. Under § 6451(a), because the adoption was by the spouse of a natural parent (mother) following the other natural parent's (F's) death, C's relationship to F's line is preserved. C may therefore inherit from SF's family and from F's family — a classic dual-inheritance result.
D. Survival, Advancements, Disclaimers, and Bars to Inheritance
Rule — 120-Hour Survival (§ 6403). A person who fails to survive the decedent by 120 hours (five days) is deemed to have predeceased the decedent for intestacy purposes, and the burden is on the party asserting survival to prove it by clear and convincing evidence. (For wills and trusts, the parallel requirement is § 21109; the simultaneous-death rules also apply to community property and joint tenancies under §§ 220–224.)
Rule — Advancements (§ 6409). A lifetime gift to an heir is treated as an advancement (an advance on the inheritance, to be deducted from the heir's share via "hotchpot") only if (1) the decedent declared in a contemporaneous writing that the gift was an advancement, (2) the heir acknowledged it in writing as such, or (3) the writing otherwise indicates it is to be deducted. The common-law presumption that any substantial lifetime gift to a child is an advancement has been abolished in California.
Rule — Disclaimer (§§ 275–286). An heir or beneficiary may disclaim any interest by a written, signed disclaimer identifying the interest, filed within a reasonable time (within nine months of the transfer is conclusively timely). A valid disclaimer relates back to the transfer date, so the disclaimant is treated as predeceased and cannot be reached by his creditors.
Rule — Slayer Bar (§§ 250–259). A person who feloniously and intentionally kills the decedent is treated as predeceased (the "slayer rule," § 250); a final criminal conviction is conclusive, and absent conviction the probate court may decide the issue by a preponderance (§ 254). Section 259 similarly bars a person shown by clear and convincing evidence to have committed elder financial abuse or neglect.
ESSAY WRITING TIP: The 120-hour rule and the slayer rule are "predeceased" rules — when they apply, do not delete the person and forget them; instead treat them as predeceased and let their issue take by representation where appropriate (unless an anti-lapse or slayer-disqualification principle redirects the share). Stating the "deemed predeceased" mechanism precisely earns easy points.
CA BAR TIP: California's abolition of the advancement presumption (§ 6409) is a frequent distinction from the common law tested on the essay. If a parent gave a child a large lifetime gift and there is no contemporaneous writing, the gift is not an advancement and the child's intestate share is undiminished — the opposite of the old common-law result many students reflexively apply.
EXAMPLE: Parent P gives daughter D $50,000 during life but signs no writing calling it an advancement. P dies intestate leaving $250,000 to be split among D and son S. Because § 6409 requires a contemporaneous writing and there is none, the $50,000 is ignored: D and S each take $125,000, and no hotchpot is performed.
II. WILLS — CAPACITY AND TESTAMENTARY INTENT
A valid will requires a testator with legal and mental capacity who acts with present testamentary intent — the intent that this very instrument operate as a disposition of property to take effect at death.
A. Legal and Mental Capacity
Rule: A testator must be at least 18 years old and of sound mind (Prob. Code § 6100). Mental capacity requires that, at the time of execution, the testator be able to understand (1) the nature of the testamentary act, (2) the nature and situation of his property, and (3) his relations to the persons who are the natural objects of his bounty and whose interests are affected by the will (Prob. Code § 6100.5(a)(1)). This is a low threshold — far lower than the capacity required to contract.
Rule — Insane Delusion. A testator who has general capacity may still lack capacity as to a particular provision if he suffered from an insane delusion — a false belief to which the testator adheres against all evidence and reason — that materially affected or caused the challenged disposition. Only the portion of the will produced by the delusion fails; the remainder stands.
ESSAY WRITING TIP: Recite the three-part § 6100.5 test verbatim and apply each prong to the facts. Then separately address insane delusion as a distinct theory, because a testator can pass the general capacity test yet still have a specific gift invalidated by a delusion. Keep the two analyses cleanly separated — examiners deduct when students blur them.
CA BAR TIP: California sets the capacity bar deliberately low and presumes capacity; the contestant bears the burden of proving incapacity. Note that under § 811, a determination that a person lacks capacity must be supported by evidence of a deficit in specified mental functions, not merely a diagnosis or old age — a refinement the examiners use to reward sophisticated answers.
EXAMPLE: T believes, without any basis and contrary to DNA evidence, that his son is not biologically his, and on that belief disinherits the son. T otherwise understands his property and his family. The disinheritance is the product of an insane delusion and that clause fails; the rest of T's will stands, and the son takes the share he would have received absent the delusion.
B. Undue Influence, Fraud, Duress, and Mistake
Rule — Undue Influence (Common Law). Undue influence is pressure that overcomes the testator's free will and substitutes the will of another, such that the instrument reflects the influencer's desires rather than the testator's. A common-law presumption of undue influence arises when (1) a person in a confidential relationship with the testator (2) actively participated in procuring the will, and (3) unduly benefits from it; the burden then shifts to the proponent to rebut.
Rule — Statutory Presumption (§ 21380). A donative transfer is presumptively the product of fraud or undue influence — and therefore void — if the recipient is (a) the drafter of the instrument, (b) a fiduciary who transcribed or caused it to be transcribed, (c) a care custodian of a dependent-adult transferor, or (d) a person related to, cohabiting with, or employed by any of the above. The presumption is rebuttable only by clear and convincing evidence (§ 21380(b)).
Rule — Independent Review Exception (§ 21384). The § 21380 presumption does not apply if an independent attorney reviews the instrument, counsels the transferor out of the presence of any interested heir, and signs a "Certificate of Independent Review" stating the transfer is not the product of fraud or undue influence. Certain relatives of the transferor are also exempt.
Rule — Fraud, Duress, Mistake. Fraud in the execution (deceiving the testator about the document's nature) and fraud in the inducement (a false representation causing a gift) invalidate the affected provisions; duress invalidates provisions produced by unlawful coercion. A mistake in the inducement generally does not invalidate a will unless both the mistake and what the testator would have done appear on the will's face; a mistake in execution (signing the wrong document) can void the will entirely.
ESSAY WRITING TIP: When the facts involve a drafter, caregiver, or fiduciary who benefits, lead with the statutory § 21380 presumption (it is more powerful and California-specific) and then, in the alternative, apply the common-law confidential-relationship presumption. Always discuss the § 21384 independent-review safe harbor, because its presence or absence usually decides the question.
CA BAR TIP: The § 21380 statutory presumption — voiding gifts to drafters and care custodians absent clear and convincing rebuttal or an independent-attorney certificate — is one of the most heavily tested California-specific wills rules. The classic fact pattern is a caregiver who befriends an elderly testator and ends up with a major bequest. Cite §§ 21380 and 21384 explicitly; reciting only common-law undue influence leaves serious points on the table.
EXAMPLE: Attorney A drafts T's will leaving A a $200,000 bequest. Under § 21380, the gift is presumptively void as a transfer to the drafter. Because no independent attorney reviewed the instrument and signed a § 21384 certificate, and A cannot show by clear and convincing evidence that the gift was untainted, the bequest fails and that $200,000 passes as if A had predeceased T.
III. WILLS — EXECUTION FORMALITIES
California recognizes two principal forms of valid will: the formal (attested) will and the holographic will. Statutory wills and certain other forms also exist. Strict compliance was historically required, but California has adopted a harmless-error safety valve.
A. Attested (Formal) Wills
Rule: An attested will is valid if (1) it is in writing; (2) it is signed by the testator, by some person in the testator's name in the testator's presence and at his direction, or by a conservator pursuant to court order; and (3) it is witnessed by at least two persons who, being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will, and who understand that the instrument they sign is the testator's will (Prob. Code § 6110(a)-(c)(1)).
Rule — Harmless Error (§ 6110(c)(2)). Effective January 1, 2009, even a will not executed with the two-witnesses-present-at-the-same-time formality is valid if the proponent establishes by clear and convincing evidence that, when the testator signed, he intended the document to be his will. This "harmless error" rule cures defects in attestation; California courts have not extended it to excuse the absence of the testator's own signature.
Rule — Interested Witnesses (§ 6112). A will is not invalid merely because signed by an interested witness (one who takes under it). But unless there are two other disinterested subscribing witnesses, the interested witness is presumed to have procured the gift by duress, menace, fraud, or undue influence. If he fails to rebut, he takes only his intestate share, capped at what he would take under the will (§ 6112(c)-(d)). The will remains valid; only the excess gift is purged.
ESSAY WRITING TIP: March through the § 6110 elements one at a time — writing, signature, two competent witnesses present at the same time who understood it was a will. If any element is missing, immediately pivot to the § 6110(c)(2) harmless-error rule and discuss whether clear and convincing evidence of testamentary intent exists. Treating harmless error as an afterthought is a common point-losing mistake post-2009.
CA BAR TIP: The 2009 harmless-error rule is a major California development that has generated heavily tested fact patterns. The leading case, Estate of Stoker, used § 6110(c)(2) to validate a holographic-style document and to revoke an earlier will. When witnesses sign at different times or one is missing, do not declare the will void — apply harmless error. Also remember the interested-witness rule purges the gift, not the will.
EXAMPLE: T signs her typewritten will in front of W1, who signs. Two hours later T shows the signed will to W2, acknowledges her signature, and W2 signs. The witnesses were not present at the same time, so strict § 6110(c)(1) compliance fails. The will is nonetheless valid if the proponent proves by clear and convincing evidence that T intended the document as her will (§ 6110(c)(2)).
B. Holographic Wills
Rule: California recognizes holographic (handwritten) wills. A holographic will is valid — regardless of witnesses — if (1) the signature and the material provisions are in the testator's own handwriting (Prob. Code § 6111(a)). Printed, typed, or preprinted matter (such as on a commercial fill-in-the-blank form) may be disregarded so long as the handwritten portions alone supply the material provisions, and statements of testamentary intent may be set forth either in the testator's handwriting or in printed form (Prob. Code § 6111(c)).
Rule — Date and Extrinsic Evidence. A holographic will need not be dated; however, if it is undated and inconsistent with another will, or if its validity depends on whether the testator had capacity, the undated holograph is invalid only to the extent of the inconsistency unless its date is established to be after the other will, or within the period of capacity (Prob. Code § 6111(b)). Extrinsic evidence is admissible to determine whether a document constitutes a will and to interpret its terms, including evidence of the testator's intent (Prob. Code § 6111.5).
ESSAY WRITING TIP: For any handwritten or partially-handwritten document, immediately test it as a holograph under § 6111: are the signature and material provisions handwritten? Then ask whether the document also satisfies (or fails) § 6110 as an attested will. A single document can be analyzed under both theories, and the better answer addresses both rather than assuming the form of will.
CA BAR TIP: Holographic wills are a quintessential California testing vehicle because many states (and the strict UPC view) treat preprinted-form holographs harshly. California's § 6111(c) is generous: you ignore the printed form language and ask only whether the handwriting alone supplies the material provisions. The recurring trap is a commercial will form where the dispositive language is handwritten — that is a valid holograph in California even with zero witnesses.
EXAMPLE: T fills in a stationery-store will form, writing in her own hand "I leave my house to my sister Jane" and signing at the bottom; no one witnesses it. Disregarding the printed form text, the handwritten signature and material provision satisfy § 6111. The instrument is a valid holographic will even though it would fail as an attested will for lack of witnesses.
C. Statutory and Conditional Wills
Rule — Statutory Will (§§ 6200–6243). California provides a fill-in-the-blank statutory will form (Prob. Code § 6240) that a testator may complete and execute with two witnesses; properly executed, it is a valid attested will. Its provisions are supplied by statute, which simplifies drafting for simple estates.
Rule — Conditional Wills. A will may be made expressly conditional on the occurrence (or non-occurrence) of an event, in which case it operates only if the condition is satisfied. Courts construe apparent conditions narrowly, often treating language describing the occasion or motive for making the will (e.g., "in case I die on this trip") as mere inducement rather than a true condition, so that the will operates even if the stated event does not occur.
ESSAY WRITING TIP: When you see conditional language, frame the issue as condition versus inducement and argue both sides. Courts prefer the inducement construction to avoid intestacy, so note the strong judicial presumption favoring validity, but acknowledge that clearly conditional language will be enforced as written.
CA BAR TIP: Conditional wills are tested less often than execution and holographs, but the inducement-versus-condition distinction is a clean issue-spotter. Pair it with the policy preference against intestacy, which the examiners reward when you articulate it.
EXAMPLE: T writes a valid holographic will stating "If I do not survive my surgery tomorrow, I leave everything to my brother." T survives the surgery but dies years later. A court will likely construe the surgery reference as the inducement or occasion for writing, not a true condition, and admit the will so the brother takes — avoiding intestacy.
IV. WILL COMPONENTS — INTEGRATION, INCORPORATION, AND POUR-OVERS
Several doctrines determine what papers and acts make up the testamentary plan and allow a will to reach beyond its four corners.
A. Integration, Incorporation by Reference, and Independent Significance
Rule — Integration. All papers actually present at the time of execution that the testator intended to be part of the will are integrated into and form the single testamentary instrument. Physical connection (staples, page numbering) and an internal coherence of language evidence the testator's intent to integrate the pages.
Rule — Incorporation by Reference (§ 6130). A writing in existence when a will is executed may be incorporated by reference if (1) the will manifests an intent to incorporate the writing and (2) the will describes the writing sufficiently to permit its identification. The external writing need not be executed with testamentary formalities, but it must already exist at the time of execution.
Rule — Acts of Independent Significance (§ 6131). A will may dispose of property by reference to acts and events having significance apart from their effect on the will, even if occurring after execution and within the testator's control (e.g., "the car I own at my death to X"). The lifetime act of buying the car has independent, non-testamentary significance, so the disposition is valid.
Rule — Tangible Personal Property List (§ 6132). California permits a separate writing referred to in the will disposing of tangible personal property (not money or business interests), even if prepared after the will, provided it is dated, handwritten or signed, describes items and recipients with reasonable certainty, and stays within statutory limits ($5,000 per item, $25,000 aggregate) — a relaxation of incorporation by reference.
ESSAY WRITING TIP: Distinguish these doctrines precisely, because each has a different timing requirement: integration concerns papers present at execution; incorporation requires the writing to exist at execution; independent significance and § 6132 permit later acts or lists. State the timing element first — it usually resolves the issue.
CA BAR TIP: Section 6132's tangible-personal-property list is a California-specific exception that lets a testator dispose of items by a list created after the will, which would otherwise violate incorporation by reference. Watch for it when the facts mention a "list of who gets what" prepared later, and note the dollar caps that limit its reach.
EXAMPLE: T's will says "I leave the items listed in the memorandum I keep in my desk to the persons named there." If the memorandum existed at execution and is sufficiently described, it is incorporated by reference under § 6130. If T instead created the memorandum after the will, it may still be effective under § 6132 if it is signed or handwritten, dated, and within the value caps.
B. Pour-Over Wills
Rule — Pour-Over Wills (§ 6300). A will may validly devise property to the trustee of a trust established (or to be established) during the testator's lifetime, including an amendable or revocable trust and one amended after the will, provided the trust is identified in the will and its terms are in a writing executed before, with, or after the will (§§ 6300, 6301, the Uniform Testamentary Additions to Trusts Act). Poured-over property is administered under the trust's terms as they exist at death, including later amendments.
ESSAY WRITING TIP: Treat the pour-over will as the companion to the revocable living trust. Explain that the will "pours" probate assets into the trust at death so that all property — both trust assets and probate assets — is ultimately distributed under one set of trust terms. Note that the pour-over is what catches assets the settlor forgot to transfer to the trust during life.
CA BAR TIP: Pour-over wills validate gifts to trusts that are amended after the will is signed — a point that distinguishes the modern statute from the older common-law incorporation-by-reference approach. The examiners pair the pour-over will with a revocable living trust to test whether you understand the unified estate-planning structure that dominates California practice.
EXAMPLE: Settlor S creates a revocable living trust and a pour-over will leaving "the residue of my estate to the trustee of the S Family Trust." S later amends the trust to add a beneficiary, then dies owning a bank account never transferred to the trust. The account passes through the pour-over will into the trust and is distributed under the amended trust terms, valid under §§ 6300–6301.
V. REVOCATION OF WILLS
A will is ambulatory — it has no effect until death and may be revoked or amended at any time before death by a testator with capacity.
A. Revocation by Physical Act and Subsequent Instrument
Rule — Subsequent Instrument (§ 6120(a)). A will or any part of it is revoked by a subsequent will or codicil that revokes it expressly or by inconsistency. A later instrument inconsistent with an earlier one revokes the earlier only to the extent of the inconsistency.
Rule — Physical Act (§ 6120(b)). A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, either by the testator or by another person in the testator's presence and at his direction. Both the physical act and the simultaneous revocatory intent are required; an accidental destruction does not revoke.
Rule — Dissolution (§ 6122). Unless the will provides otherwise, a dissolution or annulment of the testator's marriage revokes (1) any disposition to the former spouse, (2) any power of appointment conferred on the former spouse, and (3) any nomination of the former spouse as executor, trustee, conservator, or guardian, treating the former spouse as predeceased. A mere legal separation does not trigger § 6122; a final dissolution or annulment is required.
ESSAY WRITING TIP: For physical-act revocation, separately analyze act and intent — many fact patterns supply one without the other (a will found torn but no proof the testator did it, or a testator who declares an intent to revoke but never acts). For dissolution, state the predeceased fiction and check whether the will expressly overrides § 6122.
CA BAR TIP: Section 6122 revokes gifts to a former spouse only upon final dissolution or annulment, not separation, and only as to the spouse — gifts to the former spouse's relatives generally survive (a narrower rule than some UPC states). The examiners test the separation-versus-dissolution line frequently, often combining it with a Community Property issue.
EXAMPLE: T's will leaves everything to spouse W. T and W divorce; the decree is final before T dies, and the will is silent on divorce. Under § 6122, W is treated as predeceasing T, and the gift to W is revoked. The property passes to the alternate beneficiary or, if none, by intestacy.
B. Lost Wills, Duplicate Originals, and Partial Revocation
Rule — Lost-Will Presumption. When a will last known to be in the testator's possession cannot be found after death, or is found in a mutilated condition, a rebuttable presumption arises that the testator destroyed it with intent to revoke. A lost or destroyed will may nonetheless be probated if its execution and contents are proved (Prob. Code § 8223 governs proof of a lost or destroyed will).
Rule — Duplicate Originals (§ 6121). Where a will is executed in duplicate originals, revocation of one duplicate (by physical act) revokes both. By contrast, destruction of an unexecuted copy has no revocatory effect.
Rule — Partial Revocation by Physical Act. California permits revocation of part of a will by physical act (e.g., crossing out a single bequest), but additions or interlineations increasing a gift require re-execution or qualification as a holographic codicil, because a testator cannot make a new gift simply by writing it in.
ESSAY WRITING TIP: When a will is missing or mutilated, expressly invoke the lost-will presumption of revocation and then ask whether the proponent can rebut it and prove the contents. State who bears the burden — the presumption shifts it to the will's proponent to show the will was not revoked.
CA BAR TIP: The duplicate-original rule (§ 6121) is a recurring California trap: a testator who tears up one of two signed originals revokes the will entirely, even though a second signed original survives intact. Do not assume the surviving original controls.
EXAMPLE: T executes her will in two signed originals, keeping one and giving one to her lawyer. T later burns her copy intending to revoke. Under § 6121, destroying one duplicate original revokes the will, so the lawyer's intact original is no longer valid and T dies intestate (absent a saving doctrine).
C. Dependent Relative Revocation and Revival
Rule — Dependent Relative Revocation (DRR). If a testator revokes a will (or a provision) under the mistaken belief that a substantially identical alternative disposition is thereby made effective, and that belief is the reason for the revocation, the court may disregard the revocation and probate the revoked will if doing so comes closer to the testator's intent than intestacy. DRR is an equitable "second-best" doctrine: it revives the revoked instrument only when the testator would have preferred it to the result the mistake produced.
Rule — Revival (§ 6123). If a first will is revoked by a second will that is later revoked by physical act, the first will is revived only if the circumstances of the second will's revocation, or the testator's contemporaneous or subsequent declarations, show he intended the first to take effect (§ 6123(a)). If the second is instead revoked by a third will, the first revives only if the third will's terms show such intent (§ 6123(b)).
ESSAY WRITING TIP: DRR and revival are frequently confused. DRR addresses a revocation premised on a mistake (and asks whether disregarding the revocation better serves intent); revival under § 6123 addresses the sequential revocation of a later will and asks whether the testator intended the earlier will to spring back. Keep them in separate paragraphs and identify which doctrine the facts trigger.
CA BAR TIP: California's revival statute (§ 6123) rejects automatic revival — the first will does not spring back simply because the second is gone. You must find affirmative evidence of intent to revive. This contrasts with some jurisdictions and is a tested distinction. DRR, by contrast, is a judge-made equitable doctrine; cite it by name and explain the "closer to intent than intestacy" standard.
EXAMPLE: T revokes Will 1 by tearing it up, intending to validate a new Will 2 leaving her estate to the same beneficiary, but Will 2 fails for lack of witnesses. Because T's revocation of Will 1 depended on her mistaken belief that Will 2 was valid, and probating Will 1 better matches her intent than intestacy, a court may apply DRR to disregard the revocation and admit Will 1.
VI. CHANGES IN BENEFICIARIES AND PROPERTY — LAPSE, ADEMPTION, AND ABATEMENT
Between execution and death, beneficiaries may die and property may change, requiring construction rules to determine who takes what.
A. Lapse and Anti-Lapse
Rule — Lapse. A gift lapses (fails) if the beneficiary predeceases the testator (or fails to survive by 120 hours under § 21109). A lapsed gift falls into the residue; if a residuary gift lapses, it passes by intestacy unless the surviving-residuary-beneficiaries rule applies.
Rule — Anti-Lapse (§ 21110). California's anti-lapse statute saves a gift from lapsing if the predeceasing beneficiary was kindred of the testator (or kindred of a surviving, deceased, or former spouse of the testator) and left issue who survive the testator; the gift then passes to that beneficiary's issue by representation. The statute does not apply if the instrument expresses a contrary intention, such as a requirement that the beneficiary survive the testator (§ 21110(b)).
Rule — Surviving Residuary Beneficiaries (§ 21111(b)). If a residuary gift to two or more persons lapses as to one of them and anti-lapse does not apply, the surviving residuary beneficiaries take the failed share in proportion to their interests, rather than the share passing by intestacy.
ESSAY WRITING TIP: Anti-lapse turns on two requirements — relationship and surviving issue. Confirm both. The most common error is applying anti-lapse to a friend or a spouse: the predeceasing beneficiary must be "kindred" (blood relative) of the testator or of the testator's spouse. A gift to a predeceasing friend lapses and anti-lapse cannot save it.
CA BAR TIP: California's anti-lapse statute reaches kindred of the testator's spouse, not merely the testator's own blood relatives — a broader scope than the common law and many states. Also note that "words of survivorship" (e.g., "to my son if he survives me") express a contrary intent that defeats anti-lapse under § 21110(b), an issue the examiners love to bury in the language of the gift.
EXAMPLE: T's will leaves $50,000 "to my brother B." B predeceases T, leaving two children who survive T. Because B is kindred of T and left surviving issue, § 21110 saves the gift: B's two children take $25,000 each by representation. Had the gift read "to B if he survives me," anti-lapse would not apply and the gift would lapse into the residue.
B. Class Gifts
Rule: In a class gift (e.g., "to my children" or "to my nieces and nephews"), if a class member predeceases the testator, the surviving class members ordinarily divide the gift, absorbing the deceased member's share — unless the anti-lapse statute applies, in which case the deceased member's issue take that member's share by representation. Membership in the class is generally determined at the testator's death (the class closes under the rule of convenience when distribution is to be made).
ESSAY WRITING TIP: First decide whether the gift is a class gift at all (a gift to a group described by a common characteristic, where the testator was "group-minded") or a gift to named individuals. The characterization drives whether survivors absorb the share or whether lapse/anti-lapse governs. State the test for "group-mindedness" — typically a gift to a described group rather than to named persons in fixed shares.
CA BAR TIP: California applies anti-lapse within class gifts under § 21110, so a predeceasing class member who is kindred and leaves issue does not simply drop out — her issue take her share. This interaction between class-gift rules and anti-lapse is a favorite layered issue; analyze both doctrines and let anti-lapse trump the default survivors-absorb rule.
EXAMPLE: T leaves "the residue to my children, equally." T has three children; one (C) predeceases T leaving a daughter who survives T. Anti-lapse applies because C is kindred with surviving issue, so C's daughter takes C's one-third share, and the other two children take one-third each — rather than the survivors splitting the whole residue.
C. Ademption, Satisfaction, Exoneration, and Abatement
Rule — Ademption by Extinction (§§ 21133–21135). A specific gift adeems (fails) if the property is not in the estate at death because it was sold, given away, or destroyed. California softens the harsh common-law identity rule: the beneficiary takes any unpaid balance of a purchase price or condemnation award, any unpaid casualty insurance proceeds, and replacement property the testator acquired (§ 21133), plus the value of any portion a conservator or agent transferred during incapacity (§ 21134).
Rule — Ademption by Satisfaction (§ 21135). A lifetime gift satisfies a testamentary gift only if (1) the instrument provides for deduction, (2) the testator declares in a contemporaneous writing it is in satisfaction, (3) the beneficiary so acknowledges in writing, or (4) the property is the same as the subject of a specific gift. As with advancements, California requires a writing — no presumption of satisfaction arises from a mere lifetime transfer.
Rule — Exoneration (§ 21131). A specific gift of encumbered property passes subject to the encumbrance; the beneficiary is not entitled to have the debt paid (exonerated) out of the residue unless the will so directs. This reverses the common-law presumption of exoneration.
Rule — Abatement (§§ 21400–21406). When the estate is insufficient to satisfy all gifts and pay debts, gifts abate in this order absent a contrary intent: (1) intestate property, (2) residuary gifts, (3) general gifts to non-relatives, (4) general gifts to relatives, (5) specific gifts to non-relatives, and (6) specific gifts to relatives, with shares within a class abating pro rata (§ 21402). The testator's expressed plan controls if it differs.
ESSAY WRITING TIP: Classify each gift as specific, general, demonstrative, or residuary before applying ademption or abatement, because the classification dictates the result. Specific gifts adeem; general gifts do not. Abatement proceeds from residuary toward specific. Set out the classification expressly — it is half the points.
CA BAR TIP: California has rejected three common-law presumptions in a row — no presumption of advancement (§ 6409), no presumption of satisfaction (§ 21135 requires a writing), and no presumption of exoneration (§ 21131, gifts pass subject to debt). Memorize this trio of "California requires a writing / takes it subject to" reversals; the examiners test them precisely because they trap students who default to the common law.
EXAMPLE: T's will makes a specific gift of "my house at 1 Oak St." to A. After execution, T sells the house and dies still owed $80,000 of the purchase price. Under common law the gift would adeem entirely; under § 21133, A is entitled to the $80,000 unpaid balance, illustrating California's mitigation of the harsh identity rule.
VII. PROTECTION OF FAMILY — OMITTED SPOUSES AND CHILDREN
California protects spouses and children inadvertently left out of an estate plan executed before the relationship arose.
A. Omitted (Pretermitted) Spouse
Rule (§§ 21610–21612). If a testator fails to provide for a surviving spouse married after executing all testamentary instruments, the omitted spouse receives a statutory intestate share: one-half of the community property, one-half of the quasi-community property, and a separate-property share equal to the intestate share but not exceeding one-half of the separate property (§ 21610). It is not awarded if (1) the omission was intentional and appears from the instrument, (2) the testator provided for the spouse outside the instrument in lieu of a testamentary provision, or (3) the spouse signed a valid waiver (§ 21611).
ESSAY WRITING TIP: The trigger is a marriage that post-dates all testamentary instruments. Verify the timing first: a spouse married before the will was executed and simply left out is not "omitted" and has no § 21610 claim (her remedy, if any, lies elsewhere). Then run the three statutory exceptions in § 21611.
CA BAR TIP: The omitted-spouse share is capped at one-half of the separate property even where the spouse's pure intestate share might be larger, a California-specific limit. Note the interaction with Community Property: the surviving spouse already owns half the community estate, so the omitted-spouse remedy principally affects the decedent's separate and community half.
EXAMPLE: T executes a will leaving everything to his children, then marries W, then dies without revising the will. W was married after the will and is not mentioned. Absent an exception, W takes her omitted-spouse share under § 21610: half of the community and quasi-community property and up to half of T's separate property.
B. Omitted (Pretermitted) Child
Rule (§§ 21620–21623). If a testator fails to provide for a child born or adopted after executing all testamentary instruments, the omitted child receives an intestate-share equivalent (§ 21620). It is denied if (1) the omission was intentional and appears from the instrument, (2) the testator devised substantially all the estate to the omitted child's other parent, or (3) the testator provided for the child outside the instrument in lieu of a testamentary provision (§ 21621). A special rule grants a share to a child believed dead or unknown at execution, even if born before the will (§ 21622).
ESSAY WRITING TIP: As with the omitted spouse, the core trigger is a child born or adopted after all testamentary instruments. Address § 21622's narrow exception when the testator did not know the child existed or believed the child dead — this extends protection to a pre-execution child and is a common twist.
CA BAR TIP: The "all to the other parent" exception (§ 21621(b)) is frequently tested: if T leaves substantially everything to the mother of the omitted child, the child takes nothing under the omitted-child statute because the law assumes the surviving parent will provide. Spot this when a will leaves the estate to a spouse who is also the child's parent.
EXAMPLE: T's will, executed before any children, leaves the estate "to my sister." T then has a child, C, and dies without revising. C was born after the will and is unmentioned; the estate did not go to C's other parent. Under § 21620, C takes an intestate-share equivalent, reducing the sister's gift accordingly.
VIII. NO-CONTEST CLAUSES
A no-contest (in terrorem) clause provides that a beneficiary who challenges the instrument forfeits his gift. California dramatically narrowed the enforceability of such clauses effective 2010.
Rule (§§ 21310–21315). A no-contest clause is enforceable only if the beneficiary brings (1) a direct contest (challenging validity for forgery, lack of capacity, undue influence, fraud, duress, revocation, or beneficiary disqualification) without probable cause; (2) a challenge to the transferor's ownership at death, if the clause expressly so provides; or (3) a creditor's claim, if the clause expressly so provides (§ 21311). "Probable cause" exists if the facts known at filing would cause a reasonable person to believe a reasonable likelihood of success after further investigation (§ 21311(b)). Such clauses are strictly construed (§ 21312).
ESSAY WRITING TIP: Frame the analysis in two steps: first classify the beneficiary's action (direct contest, ownership challenge, creditor's claim, or something else entirely), then ask whether the clause is enforceable against that type of action. A direct contest is only penalized if brought without probable cause, so always evaluate probable cause as the dispositive sub-issue.
CA BAR TIP: Post-2010 California law makes no-contest clauses far weaker than students expect: most challenges either fall outside the three enforceable categories or are protected by probable cause. The examiners test whether you know that a direct contest with probable cause triggers no forfeiture. Cite § 21311 and the probable-cause definition explicitly.
EXAMPLE: B, a beneficiary, contests T's will alleging undue influence, with substantial evidence (a caregiver-drafter and a deathbed change). Even though B loses, the no-contest clause does not forfeit B's gift because B's direct contest was supported by probable cause under § 21311(b).
IX. TRUSTS — CREATION AND CLASSIFICATION
A trust is a fiduciary relationship in which a trustee holds legal title to property for the benefit of beneficiaries who hold equitable title, subject to enforceable duties. California codifies trust law in the Trust Law (Prob. Code §§ 15000 et seq.).
A. Elements of a Valid Trust
Rule (§§ 15200–15212). A trust requires (1) a settlor with capacity and present intent to create a trust (§ 15201) — precatory hope or wish is insufficient; (2) trust property (an existing, identifiable res, § 15202); (3) a lawful purpose (§ 15203); (4) ascertainable beneficiaries (except charitable trusts) able to enforce it (§ 15205); and (5) a trustee — though a trust will not fail for want of a trustee, as the court will appoint one (§ 15660). A trust may be created by declaration, lifetime transfer to a trustee, will, or exercise of a power (§ 15200).
Rule — Statute of Frauds (§ 15206). A trust of real property must be evidenced by a writing signed by the settlor or the settlor's agent or by the trustee; a trust of personal property may be created orally, but its existence and terms must be established by clear and convincing evidence (§ 15207).
ESSAY WRITING TIP: Run the five elements like a checklist and devote the most attention to the two that fact patterns most often defeat: present intent (watch for precatory words like "I wish" or "I hope") and a presently existing res (a promise to fund in the future, or an expectancy, is not a valid res). Naming the missing element is the issue.
CA BAR TIP: California permits an oral trust of personal property if proved by clear and convincing evidence (§ 15207) — broader than jurisdictions requiring a writing for all trusts. But a trust of real property still requires a writing under § 15206. Watch the property type to pick the correct formality rule.
EXAMPLE: S signs a declaration "I hold my brokerage account in trust for my niece N." There is intent, a presently existing res, a lawful purpose, an ascertainable beneficiary, and a trustee (S). A valid trust by declaration exists under § 15200; because the res is personalty no writing was strictly required, though the signed declaration satisfies § 15207.
B. The Revocable Living Trust — California's Dominant Vehicle
Rule — Presumption of Revocability (§ 15400). Unless a trust instrument expressly provides that it is irrevocable, a trust created by a California settlor is presumed revocable. This is a deliberate California reversal of the majority/common-law rule, which presumes a trust is irrevocable unless a power to revoke is reserved.
Rule — Method of Revocation (§ 15401). A revocable trust may be revoked by (1) compliance with any method stated in the trust instrument, or (2) if the instrument does not make its method exclusive, by a writing (other than a will) signed by the settlor and delivered to the trustee during the settlor's lifetime. A 2017 amendment clarified the interplay between a trust's stated method and the statutory method.
The revocable living trust is the centerpiece of California estate planning: it avoids probate, provides incapacity management (a successor trustee steps in without conservatorship), and maintains privacy. During life the settlor typically serves as trustee and sole beneficiary; at death the trust becomes irrevocable and the successor trustee distributes per its terms.
ESSAY WRITING TIP: When a California settlor creates a trust and the instrument is silent on revocability, state the § 15400 presumption of revocability up front — it is the opposite of the rule you learned for the multistate essay. Then identify the method of revocation under § 15401 and whether the settlor complied.
CA BAR TIP: Section 15400's presumption of revocability is among the most testable California distinctions in all of trust law. The examiners write a fact pattern where the trust is silent, a national-rule student wrongly concludes it is irrevocable, and the correct California answer is that it remains revocable and the settlor may amend or revoke at will. Cite § 15400 by number.
EXAMPLE: S creates a living trust that says nothing about whether it can be revoked. Years later S wants to change the beneficiaries. Under § 15400, the trust is presumed revocable, so S may revoke or amend it by a signed writing delivered to the trustee per § 15401 — even though under the majority common-law rule the trust would be presumed irrevocable.
C. Charitable Trusts and Cy Pres
Rule (§§ 15004, 18501 et seq.). A charitable trust must have a charitable purpose (relief of poverty, advancement of education or religion, promotion of health, governmental purposes, or other community benefit) and benefit an indefinite class of beneficiaries or the public; the requirement of ascertainable beneficiaries does not apply, and the Attorney General enforces charitable trusts. Charitable trusts are exempt from the Rule Against Perpetuities and may last forever.
Rule — Cy Pres. If the settlor's specific charitable purpose becomes impossible, impracticable, or illegal to carry out, the court may, under the doctrine of cy pres ("as near as possible"), redirect the trust property to another charitable purpose that approximates the settlor's general charitable intent, rather than allowing the trust to fail and result in a resulting trust to the settlor's estate. The court must find a general (not merely specific) charitable intent.
ESSAY WRITING TIP: To invoke cy pres, establish two things: (1) the original purpose has become impossible or impracticable, and (2) the settlor had a general charitable intent (not just a narrow purpose). If the settlor's intent was purely specific, the trust fails and a resulting trust returns the property to the settlor's estate — argue both possibilities.
CA BAR TIP: Charitable trusts are perpetuity-exempt and AG-enforced — two facts the examiners reward when stated. Pair cy pres with the general-versus-specific-intent inquiry, and remember a resulting trust is the fallback when cy pres does not apply.
EXAMPLE: S leaves $1 million in trust "to find a cure for smallpox." Smallpox having been eradicated, the specific purpose is impossible. If S had a general charitable intent to advance public health, a court applies cy pres to redirect the funds to a related health charity rather than returning the money to S's heirs by resulting trust.
D. Resulting, Constructive, Secret, and Semi-Secret Trusts
Rule — Resulting Trust. A resulting trust is an equitable reversionary device implied by law that returns property to the settlor or his estate when an express trust fails, is fully performed with surplus remaining, or a purchase-money situation arises (one person pays, another takes title). The "trustee" simply holds for the benefit of the person who supplied the property.
Rule — Constructive Trust. A constructive trust is not a true trust but an equitable remedy imposed to prevent unjust enrichment when a person holds title to property that in good conscience belongs to another — typically acquired by fraud, duress, undue influence, breach of fiduciary duty, or wrongdoing. The constructive trustee's sole duty is to convey the property to the rightful owner.
Rule — Secret and Semi-Secret Trusts. A secret trust arises where a will makes an absolute gift on its face but the testator relied on the beneficiary's extrinsic promise to hold for another; courts admit the evidence and impose a constructive trust for the intended beneficiary. A semi-secret trust arises where the will says a gift is "in trust" but names no beneficiary; the traditional rule is that the gift fails and a resulting trust returns the property to the estate.
ESSAY WRITING TIP: Distinguish secret from semi-secret by what the will reveals on its face — an absolute gift (secret, constructive trust enforced) versus a gift "in trust" with no named beneficiary (semi-secret, resulting trust to the estate under the traditional rule). The differing remedies are the entire point of the issue.
CA BAR TIP: Constructive and resulting trusts are "remedies, not trusts" — say so explicitly. The examiners often use a constructive trust to remedy a slayer, a fraudulent will procurer, or a breaching fiduciary; pairing the underlying wrong with the constructive-trust remedy shows mastery.
EXAMPLE: T's will leaves Blackacre "to my friend F absolutely," but T did so relying on F's oral promise to hold it for T's disabled son. This is a secret trust; a court admits the extrinsic promise and imposes a constructive trust requiring F to hold or convey Blackacre for the son, preventing F's unjust enrichment.
X. SPENDTHRIFT, DISCRETIONARY, AND SUPPORT TRUSTS
Trusts can restrict a beneficiary's ability to alienate his interest and shield it from creditors.
Rule — Spendthrift Trusts (§§ 15300–15309). A valid spendthrift provision restraining both voluntary and involuntary transfer prevents the beneficiary from assigning the interest and prevents most creditors from reaching it until income or principal is actually distributed (§§ 15300–15301). Exception creditors may nonetheless reach the interest: (1) a settlor's own interest in a self-settled trust is always reachable by the settlor's creditors (§ 15304); (2) a child or spouse with a support judgment (§ 15305); (3) restitution judgments and certain governmental claims (§ 15305.5); and (4) amounts in excess of that needed for the beneficiary's support, plus a 25% withholding available to certain judgment creditors (§ 15306.5).
Rule — Discretionary and Support Trusts. In a discretionary trust the trustee has discretion whether and how much to distribute; a creditor stands in no better position than the beneficiary and generally cannot compel a distribution, though once the trustee elects to distribute, a creditor (or the trustee with notice of an assignment) may intercept payment. In a support trust the trustee must distribute as needed for the beneficiary's support, education, and maintenance, and the interest is generally not assignable or reachable except by suppliers of necessaries or support claimants.
ESSAY WRITING TIP: For any creditor-versus-beneficiary problem, first classify the trust (spendthrift, discretionary, support, or a combination), then run the exception-creditor list. The two most heavily tested exceptions are the self-settled-trust rule (§ 15304) and the child/spousal-support claimant (§ 15305). Always check whether the settlor is also a beneficiary.
CA BAR TIP: California's exception creditors are statute-specific — cite §§ 15304, 15305, 15305.5, and 15306.5 by number. The single most tested point is that a self-settled spendthrift trust offers no protection against the settlor's own creditors (§ 15304): a settlor cannot shield his own assets from creditors by naming himself beneficiary of a spendthrift trust.
EXAMPLE: Settlor S creates a spendthrift trust naming himself the income beneficiary to shield assets from a future tort judgment. Under § 15304, the spendthrift restraint is ineffective as to S's own interest, so S's tort creditor may reach the trust assets to the extent of S's retained beneficial interest.
XI. MODIFICATION AND TERMINATION OF TRUSTS
Rule — Revocation/Amendment by Settlor. A revocable trust may be modified or revoked by the settlor per §§ 15400–15402, as discussed above. The settlor of a revocable trust owes no fiduciary duty to the beneficiaries during the period of revocability, and the trustee's duties run to the settlor (§§ 15800).
Rule — Modification/Termination by Consent (§ 15403–15404). If all beneficiaries consent, they may compel modification or termination of an irrevocable trust unless continuance is necessary to carry out a material purpose of the trust (the Claflin doctrine, codified at § 15403); a spendthrift restriction is generally treated as a material purpose. If the settlor and all beneficiaries consent, the trust may be modified or terminated even over a material purpose (§ 15404).
Rule — Changed Circumstances (§ 15409). On petition by a trustee or beneficiary, the court may modify the administrative or dispositive terms, or terminate the trust, if owing to circumstances not anticipated by the settlor, continuation would defeat or substantially impair the trust's purposes (equitable deviation).
Rule — Uneconomic and Small Trusts (§ 15408). If the trust principal does not exceed $50,000 (a threshold periodically adjusted), the trustee may, with notice, terminate the trust if its value is insufficient to justify the cost of administration; the court may also order termination or modification of an uneconomically small trust.
ESSAY WRITING TIP: Identify whether the trust is revocable (settlor controls outright) or irrevocable (apply consent and material-purpose analysis). For irrevocable trusts, the pivotal question under Claflin/§ 15403 is whether termination would frustrate a material purpose; argue both whether the purpose is material and whether it has been accomplished.
CA BAR TIP: California codifies Claflin (§ 15403) and equitable deviation (§ 15409) and adds the uneconomic-trust termination power (§ 15408) — cite the sections. Note the distinction between modifying administrative terms (easier, for changed circumstances) and dispositive terms (harder, requires frustration of purpose). A spendthrift clause is a classic "material purpose" that blocks beneficiary-only termination.
EXAMPLE: An irrevocable trust holds $40,000 and directs income to a beneficiary for life, but administration costs consume most of the income. Under § 15408, the trustee may petition to terminate the uneconomic trust and distribute the principal, because continued administration is impractical given the small corpus.
XII. TRUSTEE DUTIES AND POWERS
A trustee is a fiduciary who must administer the trust solely in the interest of the beneficiaries, with the duties enumerated in Probate Code §§ 16000 et seq.
A. Core Fiduciary Duties
Rule — Duty of Loyalty (§ 16002). The trustee must administer the trust solely in the interest of the beneficiaries, avoiding self-dealing and conflicts of interest. Self-dealing transactions (buying trust property, selling to the trust, using trust assets for personal benefit) are subject to the "no further inquiry" rule and are voidable by a beneficiary regardless of good faith or fairness.
Rule — Duty Not to Commingle / Earmark (§ 16009). The trustee must keep trust property separate from the trustee's own property and clearly designate it as trust property; commingling is itself a breach.
Rule — Prudent Investor Rule (§§ 16045–16054). Under the Uniform Prudent Investor Act, the trustee must invest and manage assets as a prudent investor would, considering the trust's purposes, terms, distribution requirements, and circumstances, with reasonable care, skill, and caution (§ 16047). Prudence is evaluated at the portfolio level, not asset by asset; the trustee must diversify unless special circumstances make non-diversification prudent (§ 16048) and must bring assets into compliance within a reasonable time after accepting the trusteeship (§ 16049).
Rule — Duty of Impartiality (§ 16003). When there are two or more beneficiaries (e.g., an income beneficiary and a remainderman), the trustee must act impartially, balancing their competing interests in investing, managing, and distributing.
Rule — Duty to Account and Report (§§ 16060–16064). The trustee must keep beneficiaries reasonably informed (§ 16060), provide trust terms on request, and account at least annually, at termination, and on a change of trustee to each current income or principal beneficiary (§ 16062), subject to enumerated exceptions (§ 16064).
ESSAY WRITING TIP: When analyzing a trustee's conduct, identify each specific duty implicated and analyze them one at a time — loyalty, prudence, diversification, impartiality, accounting. Do not lump them into a generic "breach of fiduciary duty." The prudent-investor analysis in particular should note the portfolio-level standard and the diversification duty separately.
CA BAR TIP: California's prudent-investor rule (UPIA, §§ 16045–16054) judges prudence at the portfolio level and imposes an affirmative duty to diversify — a frequently tested point. For self-dealing, invoke the "no further inquiry" rule: the transaction is voidable even if fair and in good faith. Cite §§ 16002 and 16047–16048.
EXAMPLE: A trustee invests the entire trust corpus in a single speculative tech stock that later collapses. Even if the trustee acted in good faith, the failure to diversify breaches § 16048 and the portfolio-level prudent-investor standard of § 16047, exposing the trustee to liability for the resulting loss.
B. Remedies for Breach
Rule — Remedies (§§ 16420, 16440). On a breach, a beneficiary or co-trustee may petition the court to compel performance, enjoin a breach, compel money redress, appoint a receiver, remove the trustee, reduce or deny compensation, impose an equitable lien or constructive trust on misappropriated property, and trace and recover trust property (§ 16420). The trustee is chargeable with any loss from the breach, any profit made through the breach, and any profit that would have accrued absent the breach (§ 16440). A court may excuse a trustee who acted reasonably and in good faith where equitable (§ 16440(b)).
ESSAY WRITING TIP: After establishing a breach, devote a separate paragraph to remedies and damages — surcharge (the §16440 measure), removal, constructive trust, and tracing. Identify which remedy best fits the wrong (e.g., constructive trust where the trustee bought identifiable property with trust funds).
CA BAR TIP: Note the § 16440(b) equitable excuse — a California-codified discretion to relieve a trustee who acted reasonably and in good faith — and the rule that the trustee surrenders any profit from a breach even if the trust suffered no loss. The examiners reward students who reach remedies and quantify the surcharge under § 16440(a).
EXAMPLE: A trustee self-deals by buying trust real estate at a below-market price and reselling at a profit. The beneficiary may void the sale under the no-further-inquiry rule, and under §§ 16420 and 16440 may impose a constructive trust on the profit and surcharge the trustee for any loss to the trust.
XIII. POWERS OF APPOINTMENT
Rule (§§ 600–695). A power of appointment is authority, created by a donor, allowing a donee (powerholder) to designate the recipients (appointees) of property. A general power permits the donee to appoint to himself, his estate, his creditors, or his estate's creditors; a special (limited) power permits appointment only to a defined class excluding the donee. Powers are also presently exercisable or testamentary. California's Powers of Appointment Act governs creation, exercise, release, and creditors' rights (§§ 680–695).
Rule — Exercise and the Blending/Blanket Clause. A donee exercises a power only if the donee manifests an intent to exercise it; a residuary clause in the donee's will generally does not exercise a power unless the power or the donee's will refers to the power, the donee owns no other property that could pass under the clause, or the will manifests an intent to include the appointive property (§ 641). A purported appointment to an impermissible appointee under a special power is ineffective; capture and other gift-in-default rules then govern.
Rule — Creditors' Rights. Property subject to a general power presently exercisable is reachable by the donee's creditors to the extent the donee's own property is insufficient (§ 682), and on the donee's death by creditors of the estate. Property subject to a special power is generally beyond the donee's creditors because the donee cannot benefit himself.
ESSAY WRITING TIP: Classify the power first — general versus special, presently exercisable versus testamentary — because that classification drives both whether the appointment is valid and whether creditors can reach the property. Then determine whether the donee effectively exercised the power, paying special attention to whether a mere residuary clause sufficed.
CA BAR TIP: The recurring trap is whether a residuary clause in the donee's will exercises a power of appointment. California's default (§ 641) is that it does not, absent a reference to the power or one of the enumerated exceptions. Spot this whenever a donee dies with a will that does not specifically mention the appointive property.
EXAMPLE: Donor gives D a testamentary general power over a trust remainder; D's will contains only a general residuary clause leaving "all my property to X" without mentioning the power. Under § 641, the residuary clause does not exercise the power (D had other property and did not refer to it), so the appointive property passes to the takers in default of appointment named by the donor.
XIV. THE RULE AGAINST PERPETUITIES — CALIFORNIA USRAP
Rule (§§ 21200–21231). California follows the Uniform Statutory Rule Against Perpetuities (USRAP). A nonvested interest is invalid unless (1) it satisfies the common-law Rule (vesting, if at all, no later than 21 years after a life in being at creation), or (2) under the "wait-and-see" provision, it actually vests or terminates within 90 years after creation (§ 21205). An interest that would violate the common-law Rule is valid if it in fact vests within 90 years; if still invalid, the court may reform the disposition to approximate the transferor's intent (§ 21220). Charitable trusts and certain interests are exempt (§ 21225).
ESSAY WRITING TIP: Do the common-law analysis first — identify the measuring life and the validating life, and test whether the interest must vest within 21 years of a life in being. Only if it fails the common-law Rule do you turn to USRAP's 90-year wait-and-see backup and the reformation power. Showing both layers demonstrates command of the California statute.
CA BAR TIP: California's 90-year wait-and-see and reformation provisions (§§ 21205, 21220) rescue many interests that would be void at common law — a major distinction from the rigid common-law Rule still tested on the MBE. Note that the Rule does not apply to charitable trusts (§ 21225) or to most commercial and option interests, and that powers of appointment have their own perpetuities timing rules.
EXAMPLE: A trust grants a remainder "to the first of my descendants to graduate from medical school." This may violate the common-law Rule because the contingency could vest beyond lives in being plus 21 years. Under California's USRAP, the interest is nonetheless valid if a descendant in fact graduates within 90 years of the trust's creation; if not, the court reforms the gift under § 21220.
XV. PROBATE ADMINISTRATION OVERVIEW
Rule (§§ 7000 et seq.). Probate is the court-supervised process of authenticating a will, appointing a personal representative (executor if named, administrator if intestate), marshaling assets, paying creditors and taxes, and distributing the estate. The personal representative is a fiduciary owing duties analogous to a trustee's. California provides simplified procedures for small estates (affidavit collection and petitions to determine succession below statutory thresholds) and a streamlined spousal property petition (§§ 13500 et seq.).
Rule — Independent Administration of Estates Act (§§ 10400–10592). The IAEA authorizes a personal representative to administer most of the estate — selling property, paying claims, distributing assets — without prior court approval, subject to notice of proposed action to interested persons who may object. Certain acts (e.g., sale of real property under limited authority, allowance of the representative's own compensation) still require court supervision.
ESSAY WRITING TIP: Probate administration is usually a supporting issue rather than the heart of an essay, but you should be able to name the personal representative, state the fiduciary standard, and identify the IAEA's notice-of-proposed-action mechanism. Mention non-probate transfers (trust assets, joint tenancy, POD/TOD accounts, life insurance) that bypass probate entirely.
CA BAR TIP: The dominance of the revocable living trust means a recurring theme is probate avoidance — explain that trust assets, joint tenancy property, and pay-on-death designations pass outside probate, leaving only un-transferred assets (caught by the pour-over will) to be administered. The examiners reward students who connect the will, trust, and non-probate transfers into a unified plan.
EXAMPLE: Decedent held a home in a revocable living trust, a joint-tenancy bank account, and a car in his sole name. The home passes under the trust and the account by survivorship, both outside probate; only the car requires administration, likely through a small-estate affidavit, with the pour-over will directing it into the trust.
XVI. THE CALIFORNIA WILLS & TRUSTS ATTACK PLAN
Approach every California wills-and-trusts essay with a disciplined, ordered checklist that mirrors how an estate actually moves from death to distribution. First, characterize the property as community, quasi-community, or separate (the threshold step that controls every distribution) and identify all the players. Second, determine whether there is a valid will: test capacity (§§ 6100, 6100.5, insane delusion), then execution under § 6110 (writing, signature, two witnesses present at the same time) and, if formalities fail, the § 6110(c)(2) harmless-error rule; always test any handwritten document as a holograph under § 6111. Third, screen for will contests — undue influence (lead with the § 21380 statutory presumption against drafters and care custodians, then common law and the § 21384 safe harbor), fraud, duress, and mistake. Fourth, analyze revocation (physical act and intent under § 6120, subsequent instrument, dissolution under § 6122, duplicate originals under § 6121, the lost-will presumption, DRR, and revival under § 6123). Fifth, apply the construction doctrines that change distribution: lapse and anti-lapse (§ 21110, kindred plus surviving issue), class gifts, ademption by extinction (§ 21133) and satisfaction (§ 21135, writing required), exoneration (§ 21131, subject-to), and abatement (§ 21400). Sixth, run the family-protection statutes — omitted spouse (§ 21610) and omitted child (§ 21620) — and evaluate any no-contest clause under the narrow §§ 21310–21315 (direct contest without probable cause). Seventh, if there is no valid will or partial intestacy, distribute by intestacy (§§ 6401–6402, § 240 representation, status under §§ 6450–6454, the § 6403 120-hour rule, and the § 6402.5 predeceased-spouse carve-out). For any trust, confirm the five creation elements (§ 15200), remember the § 15400 presumption of revocability, classify the trust (charitable/cy pres, spendthrift with exception creditors, discretionary, or support), analyze modification and termination (§§ 15403, 15408, 15409), and scrutinize trustee conduct duty by duty (loyalty § 16002, prudent investor §§ 16045–16048, impartiality, accounting § 16062) with remedies under §§ 16420 and 16440. Finally, address any power of appointment (general versus special, exercise under § 641), apply California's USRAP 90-year wait-and-see (§ 21205) to any contingent future interest, and frame the plan against probate administration and non-probate transfers. Above all, cite the Probate Code by section and flag every California distinction — the harmless-error rule, holographic-will generosity, the § 21380 presumption, abolition of the advancement/satisfaction/exoneration presumptions, the § 15400 revocability presumption, and the 90-year wait-and-see Rule — because naming the California-specific rule is what separates a passing answer from a failing one.