Essay Issues Flashcards
Omitted Child - what do they receive?
If a decedent fails to provide for a child born or adopted after the execution of a will (or will substitute, such as a trust), the omitted child receives a share equal to that which the child would have received if the decedent had died intestate.
In CA, the omitted child protection extends to who?
children who the testator believed to be deceased or the birth of whom the testator was unaware.
When does the omitted child statute not apply?
- It appears that the omission of the child was intentional
- The testator had other children at the time the device was executed and left substantially all of his estate to the other parent of the omitted child or
- The testator provided for the child outside of the devise and intended it to be in lieu of a provision for the device
In CA, under omitted child statute, when the omitted child must take his intestate share, how is that share paid for?
out of any assets not disposed of by will or trust, and then if necessary, by abating the other beneficiaries gifts in proportion to the value they respectively receive.
California Intestate Share - how is it divided
In CA, the decedent’s surviving spouse is entitled to the decedents one half of CP and QCP, and one third of the SP if the decedent is survived by more than one lineal descendant.
Termination by Consent
A trust may be terminated by consent if the settlor is decreased or has no remaining interests in the trust, and if all of the beneficiaries and the trustee consent to the termination. However, even when all beneficiaries consent, a trust won’t be terminated if there is still an unfulfilled material purpose of the trust.
When does a trust automatically terminate?
When the trust purpose has been accomplished
What can beneficiaries do when there have been losses from the trust because of the trustees breach?
Sue the trustee and seek damages for a breach resulting in lost profits, lost interests, or other losses
Termination for Lack of a Trustee
A trust will not fail if a trustee dies, becomes disabled, resigns or refuses to accept the office.
What happens if the trustee of a trust dies, become disabled, resigns or refuses to accept the appointment?
The court wil appoint a successor trustee, unless the settlor expressed an intent that the trust should continue only as long as a particular trustee served
Duty to disclose (trustee)
A trustee must disclose to the beneficiaries any possible breaches of trust
