From Essays

Question 1

Elements for Testamentary Trust

Answer 1

1. intent to create a trust
2. beneficiary
3. trust property
4. a valid trust purpose
5. trustee with duties (but trust will not fail for want of trustee)

Question 2

Where to find Essential Elements of Testamentary Trust

Answer 2

1. terms of the will
2. existing writing incorporated by reference
3. exercise of a power of appointment created in the will

Question 3

Rules for Charitable Trust

Answer 3

1. for a charitable purpose (benefit public not individuals)
2. may be perpetual
3. Cy pres doctrine applies when necessary
4. Usually enforcable by attorney general

Question 4

Mixed Trust for both Charitable and Non Charitable

Answer 4

In that interest special rules for charitable trusts do not apply but two separate trusts found if there is some indication as to (1) how much of corpus the settlor intended to be applied towards charitable purposes or (2) how long the settlor intended the corpus to be applied towards charitable purposes.

Question 5

Cy pres Doctrine

Answer 5

1. when specific purpose is acomplished/becomes impracticable to serve settlor’s general charitable intent court may amend the trust or redirect the assets to another charitable puprose as close as possible to the original one, rather than allow trust to fail.
2. court must decide whether the settlor intended trust to fail or would have wished property devoted to similar use.

Question 6

Modification by Consent

Answer 6

An irrevocable trust may be modiried by consent of all current and future beneficiaries if the modification will not impair a material purpose of the trust.

Question 7

Testamentary Capacity

Answer 7

1. Testator has capacity to make a will if they are at least 18 years of age and of sound mind.
2. measured at time of execution of the will - capacity later or at death is not controlling but may be evidence about capacity at time of execution

Question 8

Mental Capacity to make will

Answer 8

Testator must have abilaity to understand:
1. the nature of their act (know that they are executing a will)
2. nature and extent of their property , and (3) the persons who are the natural objects of their bounty

Presumption for capacity and burden of proof regarding mental capacity is on the will contestant.

Question 9

Revocation of a Will

Answer 9

1. will may be revoked in whole or in part by implication from the terms of a subsequent instrument
2. to the extent that a second will makes an inconsistent disposition of property, the terms of the prior will are necessarily superseded or nullified.

Question 10

Wills and conservators

Answer 10

A conservator may make a will for a conservatee if the conservator has been authorized by the court, generally to dispose of property that conservatee had not disposed of or to make a change due to changed circumstances. Standard is what a reasonable person in the conservatee’s position whould do.

Question 11

Undue Influence wills

Answer 11

Execution or revocation of a will is ineffective to the extent the execution was procured by undue influence. California applies statutory presumption of undue influence for any provision of an instrument making a donative transfer to certain persons including - the person who drafted the instrument as well as their relatives, and (2) a person who transcribed the instrument or caused it to be transcribed and was in a fiduciary relationship with the transferor when transcribed.

Question 12

Conservatee making own will

Answer 12

1. A person for whom a conservator has been appointed does not necessarily lack testamentary capacity
2. adjudication creates a presumption of lack of required mental capacity, it is not conclusive and can be overcome by showing that the testator still met the specific standard for mental capacity - testator must meet capacity standards.

Question 13

Validity of Will

Answer 13

Enforcable if Will was valid:
1. in place of execution
2. in testator’s domicile at time of death
3. under california law

Question 14

Validity under California Law

Answer 14

• Compliance with Statutory Formalities
• testamentary capacity
• Testmentary intent

Question 15

Attested Will Validity

Answer 15

1. in writing
2. signed by testator
3. signed in presence of two disinterested witnesses
4. witnesses must sign during testator’s lifetime
5. witnesses must understand that instrument being witnessed is testator’s will

Question 16

Harmless error Doctrine

Answer 16

If will not executed in compliance with witnessing requiremetns it may be enforced if will proponent can establish by clear and convincing evidence that at the time the testator signed the will he intended it to constitute his will

Question 17

Holographic Will

Answer 17

1. written in handwriting of tesator
2. material provisions in testator’s handwriting
3. date is not required but helfpful for inconsistent provisions.

Question 18

Testamentary intent

Answer 18

testator has present intention at the time of will execution to make the subject instrument their will.

Question 19

Surviving Spouse: Will

Answer 19

if surviving spouse of testator married testator after execution of all testamentary documents and is not provided for in will or trust, spouse may take in addition to share of community and quasi community property - their intestate share of testator’s separate property.

must show:
* failure to provide was not intentional
* no other provision for spouse by outside transfer in lieu of will provision
* surviving spouse did not waive right
* or care custodian etc…

Question 20

Surviving Spouse intestate share

Answer 20

if decedent leaves more than one child entitled to 1/3 decedent’s prperty
decedent’s 1/2 share of community property passes to surviving spouse to be added to spouses 1/2 share of community property

Question 21

Community Property

Answer 21

All property acquired by spouses/DPs during marriage is presumptively community property, inclusive of wages and salary earned by a spouse during marriage and property acquired with community funds

Question 22

Quasi Community property at Death

Answer 22

property acquired by either spouse while living outside of California that would have been community property if acquired while domiciled in California.

Treated like CP at death - spouse retains their 1/2.

with the exception of debt collection, the quasi community property is treated as separate property during marriage - spouse may manage and control it as though it were entirely their separate property including transfering title.

If title is unaltered:

divorce treated same as community property (each spouse 1/2 interest)

intestacy - treated the same as community proeprty except that decedent does not have any interest in the surviving spouse’s quasi commnity property.

Question 23

Omitted Child

Answer 23

Under CA Omitted Child Statute - a testator fails to provide for child born/adopted after execution child receives intestate share of testator’s property but not if:
* intentional
* provided for by outside transfer in lieu of will provision
* testator had one or more children and devised or transferred substantially all of their estate to the other parent of the omitted child.
* In CA if intestate decedent leaves issue and surviving spouse, the survivig issue share the rest of the decedent’ separate property that is not passing to surviving spouse

Question 24

Non Marital Children

Answer 24

same rights as those born in wedlock
* proof of paternity may be established by obtaining judgment of paternity
* requires clear and convincing evidence
* DNA is okay

Question 25

Abatement

Answer 25

When estate assets are insufficient to pay all claims against the estate and satisfy all bequests and divses, abatement applies - reducing testamentary gifts to satisfy competing claims and bequests- statutory protection of omitted spouses and issue takes priority and can cause abatement of other bequests

Question 26

Joint Tenancy

Answer 26

4 Unities:
Title
Time
interest
possession

unity of title and time keep owners from transferring a property to themselves and another and joint tenants but mny states perit an owner to create a joint tenancy in themselves and another even though the unities of time and title are not satisfied.

Question 27

Illusory Transfer Doctrine

Answer 27

If prior to death a decedent who died domiciled in CA transferred their quasi communtity property to a 3rd pty for less than substantial consideration and without their surviving spouse’s consent, the surviving spose may compel the 3rd party to restore one-half of the property (or its value) to decedent’s estate.

IF at time of decedent’s death the decedent reserved any of the following rights in the property: the right to income, the power to revoke, consume, invade or dispose of principal for the decedent’s own behalf, or the right of survivorship.

Question 28

Abatement

Answer 28

Abatemetn is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims agaisnt the estate and satisfy all bequests and devises.

While testator may set out an order of abatement in the will, if there are no contrary provisions in the will and no intestate property, the residuary will abate first

Question 29

Inter vivos Trusts and Creditors on Death

Answer 29

When inter vivos trust is created, legal title is transferred to trustee and if the trust consintues in oepration after the settlor’s death legal title remains in the trustee. The trust assets do not make up part of the settlor’s probate estate.

The interest of a trust beneficiary can generally be reached by creditors to satisfy theirclaims, but creditors can reach only the interest of the beneficiary and not the trust property itself.

The general rule with respect to creditors and trusts is that anything that the debtor has the power to transfer can be reached.

A revocable trust becomes irrevocable after settlers death preventing creditors from reaching the trust assets. In california after the death of a settlor of a revocable trust, the property that was subject to the power of revocation is subject to the claims of creditors of the deceased settlor’s probabe esate and to the expenses of administration.