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Wills & Trusts > Intro to Wills and Trusts > Flashcards

Intro to Wills and Trusts Flashcards

1
Q

How lawyers help clients plan for wealth transfer upon death:

A

drafting wills and trusts

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2
Q

4 ways lawyers help clients plan for end-of-life planning:

A
  1. Living wills
  2. Advance directives
  3. Health care proxies
  4. Planning for loss of capacity with powers of attorney
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3
Q

An administrator is

A

in charge of gathering the estate assets, paying debts, and distributing the remaining property to the heirs.

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4
Q

Intestate laws defines family by

A

blood
marriage
formal adoption

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5
Q

Doing your own will, will often generally fail because

A

they do not have the requisite execution formalities

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6
Q

Clients have various goals categorized into

A

Property Management, Care, and Transmission of Property.

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7
Q

Property Management documents may include

A

trusts, powers of attorney, deeds, and partnership agreements.

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8
Q

Care documents cover

A

advance directives, guardianship proceedings, and tax-related forms.

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9
Q

Transmission of Property at Death involves

A

wills, trusts, deeds, contracts, and probate petitions.

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10
Q

Two types of financial power of attorney

A
  1. durable power of attorney
  2. springing powers of attorney
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11
Q

Transmission of Property at Death involves what 3 types of will altercations

A
  1. testamentary trusts
  2. codicils
  3. will revocations
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12
Q

Objections to probate proceedings are called

A

Caveats

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13
Q

If a document transmits property upon death of the property owner, what can be created

A

lifetime property management benefits

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14
Q

Probate property

A

assets transferred by a valid testamentary instrument like a will.

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15
Q

Decedent

A

a person who has died

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16
Q

Testator

A

A decedent who dies with a valid will

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17
Q

What does a will do?

A

It leaves instructions for what should happen to the testator’s property.

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18
Q

A will designates

A

The beneficiaries and an executor

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19
Q

Term for when

Real property given in a will is:

A

devised

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20
Q

Term for when

Personal property given in a will is:

A

bequeathed

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21
Q

Who can the executor listed in a will be?

A

an individual
several people
an institution with fiduciary powers ( ex. a trust company)

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22
Q

The executor acts as…

A

the legal existence of the decedent

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23
Q

3 things that a probate proceeding does

A

provide evidence of title transfer, satisfy creditors, and resolve conflicts among heirs and beneficiaries.

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24
Q

Intestate succession proceedings are called

A

administration

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25
Q

Nonprobate property

A

property that passes upon the property owners death by a legal instrument that is NOT a will or codicil

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26
Q

Nonprobate device

A

controls non-probate property, also called a will substitute

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27
Q

a nonprobate device can be a

A

contract, deed, multi-party bank account, or a trust instrument

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28
Q

when there is ancillary probate, what may need to be to be appointed

A

an ancillary executor and administrator

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29
Q

states typically have what 2 forms of probate proceedings

A

solem form
common form

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30
Q

Solem Form of probate proceedings

A

requires notification to all heirs

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31
Q

**

may states have a “small estate” statute for probate proceedings, what does it do?

A

expedite the probate process.

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32
Q

State statutes typically say that a car does not have to go through probate how? and under what 3 conditions

A

The person entitled can petition the DMV to
transfer the title w/o probate if
- probate is unecessary
- all creditors have been satisfied
- OR the estate is small enough that the creditors are not entitled to be paid.

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33
Q

Living wills

A

statements about treatment preferences

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34
Q

2 problems with living wills

A
  1. might be incomplete or static
  2. does not cover a sufficient range of health care situations
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35
Q

If patient has no living will or durable power of attorney, then the court

A

appoints a proxy to make health care decisions

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36
Q

Ethical will

A

a non testamentary writing “intended to pass along values and beliefs to succeeding generations”
- including family histories, religious traditions, and spiritual practices

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37
Q

Durable financial power of attorney

A

gives the agent power to make decisions regarding financial matters

38
Q

Can a state require evidence that an incompetent person chose to withdrawal life support while competent

A

Yes, the constitution does not prohibit the requirement
- the requirement to promote policy of preserving life is constitutional

39
Q

4 examples of disability planning documents

A
  1. HIPPA Release
  2. Living Will
  3. Durable (health care) power of attorney
  4. Durable (financial) power of attorney
40
Q

“durable”

A

when someone becomes incapacitated, the agency relationship remains

41
Q

If a document does not clarify what makes them become incapacitated, what needs to happen?

A

There needs to be a court order to be a court order to determine

42
Q

A durable health care power of attorney, living will, and HIPPA release appoints an agent to

A
  1. Make health care decisions
  2. Take care of other sensitive personal issues
43
Q

dying Intestate

A

Dying without a valid will

44
Q

Who should the court appoint as an agent? (default)

A
  1. Spouse then child by majority
  2. Child that have financial/health care expertise
45
Q

Two types of lifetime trusts

A

revocable trusts
irrevocable trusts

46
Q

What occurs when someone dies owning probate property

A

probate succession

47
Q

Probate succession happens when

A

someone dies with a valid will

48
Q

The property a will governs is referred to as

A

estate

49
Q

ancillary probate

A

property that the decendant owned outside of where they were domiciled

50
Q

Something is not marital property unless

A

it is specified

51
Q

Transfer on death is the same as

A

payment on death

52
Q

Overall, an agent has to act…

A

in the best interest in the principle

53
Q

3 ways that a power of attorney can become effective

A
  1. can be immediate
  2. can be “springing” that happens when the principle becomes incapacitated
  3. Can happen with an occurrence of a future event
54
Q

If there are certain powers you want your agent to have, you have to

A

specify it in the document

55
Q

under a durable health care power of attorney, living will, and HIPPA release what needs to happen in order for an agent to have power over additional sensitive personal issues

A

The specific powers have to be listed in the document

56
Q

Clients are categorized based on

A

their needs

57
Q

When someone dies intestate, the probate judge must appoint a

A

administrator

58
Q

Intestate succession

A

the distribution of property of people who die without wills

59
Q

Lifetime trusts are usually made to

A

make gifts or hold insurance

60
Q

2 Examples of Advance Directives that deal with the care of self

A
  1. Living will
  2. Health care power of attorney
61
Q

What is a will? (Physically)

A

A writing (rarely oral) signed by the testator and a witness.

62
Q

4 main things a executor must handle

A

probate proceedings, collecting assets, notifying creditors, and distributing estate assets.

63
Q

A nonprobate device may designate a

A
  1. primary beneficiary
  2. contingent beneficiary (also called an alternative beneficiary)
64
Q

Intestate succession statutes in the decedent’s domicile state determine…

A

the identity of the decedents heirs and who should be named administrator.

65
Q

nonprobate succession

A

The distribution of property that is not distributed through a will instrument

66
Q

5 circumstances where probate size matters (specifically when small)

A
  1. If small enough probate is unecessary
  2. May have nothing to probate
  3. If very little, the surviving spouse may keep the probate without notifying the creditors
  4. If creditors are already satisfied
  5. Some property passes outside of probate are not reachable by creditors
67
Q

small probate and tax obligations

A

even if small, tax obligations applies to any property that the decedent had control of at the time of death.

68
Q

common form of probate proceedings

A

requires no notification to the heirs

not binding until longer period has elapsed from initial filing

69
Q

How do State statutes typically address cars in relation to probate

A

Typically cars can be passed without going through probate

70
Q

designated beneficiary vs. named on will

A

The designated beneficiary trumps who is listed on a will

71
Q

The designated beneficiary trumps who is listed on a will UNLESS

A

the estate is listed as a beneficiary or doesn’t list a beneficiary

72
Q

Will substitute

A

A way to have a transmission outside of probate

73
Q

under the “due process” does a state have to accept a “substituted judgement” in the absence of substantial proof of the end of life wishes of the patient?

A

No they do not have to accept, they can require “substantial proof” and nothing else

74
Q

Presumption of a power of attorneys “durableness”

A

That it is durable unless the instrument says that it is terminated by the incapacity of the principle

75
Q

A Durable Financial Power of Attorney appoints an agent to

A

make financial decisions and manage assets

76
Q

What powers/authority are granted to a durable financial power of attorney?

A
  1. General Powers
  2. Specific powers related to estate planning
77
Q

Two ways that an durable power of attorney becomes effective

A
  1. Default- immediately
  2. Springing- when incapacitated
78
Q

5 examples of additional sensitive personal issues that a durable health care power of attorney, living will, and HIPPA release can appoint to a agent

A

. Assisted living care
- In home, facility?
2. Mental health treatment
3. Organ donation
- any organ for any purpose?
4. conditions for pulling the plug
5. Access to health records

79
Q

Partial intestacy

A

created a valid will that did not dispose of all the decedents probate property

80
Q

with low-income people dying intestate, where does the real property typically go to?

Why is this a bad thing

A
  1. typically passes to tenets in common
  2. it makes it impossible to sell, get loans on the property, get federal disaster relief, etc.
81
Q

What do state statutes presume when aiming for a “fair” allocation of property

A

that the decedent intends to benefit the closest to them on the family tree

82
Q

5 reasons someone would be in intestacy

A
  1. no will
  2. will, but invalid
  3. valid will, but doesn’t cover all property
  4. valid will, but revoked
  5. valid will, but lost/not admitted into probate
83
Q

How to completely opt out of intestacy

A

Create a valid will that disposes of all probate property

84
Q

Prof. does not test rules like taking financial financial care of child, for genetic testing

A

need to determine how that effects my studying

85
Q

Default disposition rules spouse v. children

A

favors spouse over children

86
Q

When a health document saus that the agent has the power to withdrawl life

do they?

A

It does not mean that they can.
They need evidence that it is what the principle wanted.

87
Q

Irrevocable trusts and creditor protection

A

Irrevocable trusts do not give creditor protection

88
Q

A will must be:

what 3 things

A

1) In writing
2) signed by the testator or by some other in the testators conscious presence and by the testators directions
AND
3) Either
a) Signed by atleast 2 individuals, each whom signed within a reasonable time after the individual witnessed either the signing of the will OR
b) acknowledged by the testator before a notery public or other individividual authorized by law to take acknowledgements

may be missing something on a)

89
Q

for a will

writing

A

any form of writing, whether by hand or machine

90
Q

4 ways a testator can sign their will

A

1) legal name
2) nickname
3) mother, father
4) cross or notation indicating a signature as long as the mark is made by the testator

91
Q

Codicil

A

A testamentary instumnet that is a written amendment or modification to an existing will.

92
Q

A codicil must be created using

A

the appropriate will formalities

Wills & Trusts (8 decks)

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