MEE issues Flashcards
How does the old rule handle stocks along with after acquired stocks devised in a will? How does it handle stock splits?
How do the Modern statutes handle stocks and split stocks?
old rule- only stock owned at the time the will was signed (executed) was allowed to pass in bequest. Later acquired stock shares from a stock dividend would not be included unless the testator changed the will. Stock splits were allowed to pass bequest without a will change.
Modern statutes: treat stock splits and dividends the same and allow both to pass under bequest without a new writing.
Ademption
How does the UPC handle ademption of specifically devised real estate?
Ademption occurs when the subject matter of a specific devise is not found in the probate estate at the time of the testator’s death.
Under the UPC, a devisee of specifically devised real estate is entitled to any real property owned by testator at the time of death that testator acquired as a replacement for the specifically described property.
How is a bequest of generically described property applied at the time of the testator’s death?
A bequest of a generically described property applies to property that meets the generic description at the time of death.
Why were Anti-lapse statutes designed?
to save the issue of a relative in the will.
What happens if a legatee disclaims a general bequest?
the bequest passes as if the disclaimant had predeceased the testator
Undue influence
effect on a will
elements
presumption of undue influence
Testamentary intent can be prevented by undue influence, fraud, or mistake.
Undue influence is sufficient to void a will if a contestant can prove the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.
A presumption of undue influence arises if the alleged wrongdoer was in a confidential relationship with the donor and there were suspicious circumstances surrounding the preparation, formulation, or execution of the will.
Requirements of a valid will
The formal requirements of a will depend on what type of will is at issue, but all wills require testamentary capacity, testamentary intent, and the appropriate formalities. Testamentary capacity requires that the testator be of sound mind when the will is executed. Testamentary intent is established if, at the time of the execution, the testator intends that this particular document be his will.
Under the UPC the distribution scheme is
per capita by generation
Creation of a trust
A trust is created when a settlor transfers legal title to property to a trustee, who then administers the trust in accordance with the settlor’s wishes for the benefit of the beneficiaries. If a trust is gifted to a class of persons, the class closes when the settlor dies or the gift becomes possessory.
What happens if a beneficiary predeceases a settlor in a majority jurisdiction ?
minority: adopting survivorship statute
If a beneficiary predeceases a settlor, the trust is allocated according to the instructions in the trust instrument.
In a minority of states adopting a survivorship statute, if the gift to a class designated as children, and a child predeceases the settlor, the child’s representative takes that child’s share.
A beneficiary’s waiver of a right in trust distribution
UPC:
In some states:
Common Law:
A trust beneficiary can effectively waive a right in the trust distribution.
Under the Uniform Probate Code, revocation must be in writing and may be made at any time after the settlor’s death. Under the UPC, the beneficiary’s share goes to her heir.
In some states, revocation must be made within nine months of the decedent’s death. The beneficiary is then treated as if she predeceased the settlor.
Under common law, the beneficiary’s share goes to the other beneficiaries named in the trust.
Pour Over Will
where a will makes a gift to a trust. These types of provisions will be valid so long as the trust is identified in the will and the terms are incorporated in a writing executed before or concurrently with the execution of the will.
Under the modern approach, later-made amendments to the trust are valid.
Under the common law, amendments made after the execution of the will are not valid.
Power of appointment (gives a beneficiary the power to
to designate who will receive specific property)
