Estate and Incapacity Planning Flashcards
PC 6100.5 - first part
Three Prongs:
- Does not understand the testamentary act
- Does not understand the nature and situation of the individual’s property
- Does not remember the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will
PC 6100.5
Suffers from a mental disorder with symptoms including delusions and hallucinations
Capacity to create a will v. trust
The capacity to create a trust is a higher capacity because it is a contractual capacity as opposed to preparing a will
PC 6110
Witnessed Will
Signed by the testator
*or by another person, at the testator’s direction and
while the testator is present
*it can also be signed with his or her mark and the
witness can write the name
Witnesses present at the same time, who either witness the testator’s signing the will or her acknowledgment of the signature. The witnesses must understand that this is the testator’s will.
PC 8220(b)
Self Proving Will
An affidavit in the original will that includes or incorporates the attestation clause.
It can be admitted to probate with no evidence from any attesting witness other than the affidavit in the will.
Pour Over Will
It is a back-up to the trust. It is a technique to make sure that assets can be poured over to the living trust. Can be used to collect any assets that are not titled in the living trust.
PC 6111(a)
Holographic Will
Is a will where the signature and the material provisions are in the handwriting of the testator, and it does not have to be witnessed.
You will need to prove that the handwriting is the testator’s handwriting. You would need witnesses who can provide an affidavit that this is the testator’s handwriting. You also need to provide the court with a transcription of the will.
PC 6110(c)(2)
Will Proven by Clear and Convincing evidence
If the will was not executed in compliance with statutory requirements, it will be treated as a valid will if the proponent of the will establishes by clear and convincing evidence that the testator intended the will to constitute the testator’s will.
Example - the will was notarized. You can still present this will to the court, and if you can prove with clear and convincing evidence that this was intended to be the testator’s will.
Codicil
An amendment to the will that changes portions of the will but not the entirety.
PC 6120
Revocation of a Will
Express - Another document that revokes the will or a second document which contradicts the first will.
Destruction - It is physically destroyed or crossing out part of the will or by writing on the face of the will.
PC 6121
Duplicate Will
If you revoke one of the wills, then the duplicate will is revoked.
PC 6124 - Presumption
Lost Will - Presumption
If you cannot find the will, at the testator’s death, there is a presumption that the testator intended to revoke the will.
PC 6124 - Rebuttal
Lost Will - Presumption - Rebuttal
The witness can overcome this presumption by:
1. Signed declarations by the witnesses, drafting attorney
2. Declarations by family members
PC 6123
Revival of Revoked Wills
Will 1 is revoked by Will 2, and then you have a separate revocation of Will 2. There is no revival of the first will, unless it is clear that the testator intended to revive the first will.
PC 6130
Incorporation by Reference
A document in existence when the will is executed may be incorporated by reference to interpret the will if the will states the intent to incorporate the document and describes it sufficiently to identify it.
Creation of a Living Trust
PC 15200
- Declaration of the Settlor
- By Transfer - transfer assets to the trustee
- Exercise of a Power of Appointment to create a trust
- Enforcement of promise to create a trust
Elements of a Living Trust
- Settlor
- Settlor’s intent to create the trust
- Trust property
- Beneficiaries - unless it is a charitable trust
- Valid Trust Purpose
