MEE Subjects Flashcards
What state governs a decedant’s will?
Generally, it’s the state where the decedant is domiciled, but in the case of real property, it’s the state where the property is located.
What are the requirements for a valid will?
- Testamentary intent
- Formal execution
- Testamentary capacity
What must a will contain to be properly attested?
An attested will must be (1) in writing, (2) signed by the testator or someone acting in their capacity, (3) witnessed by the required number of people in the state (usually two but three in some states).
What are the requirements for a holographic will?
(1) the material, dispositive portions must be in the testator’s own handwriting; and (2) it must be signed and in some cases dated in the testator’s own handwriting.
What is required for a testator to be considered as having capacity?
The testator must be of age and of sound mind.
What does it mean for a testator to be of sound mind?
The testator must
1. understand the nature and extent of their property
2. the “natural objects of their bounty” (usually their family members)
3. must understand they are executing a will
4. that they understand and can articulate what they want to happen to their property under the terms of the will.
Under the harmless error rule, when might a will be valid even if it does not satisfy all the requirements for an attested or holographic will?
A will may be valid, despite defects in formal execution, if the will’s proponent proves by clear and convincing evidence that the testator intended for the document to be her will.
Normally, this rule excuses attestation defects in the will.
The rule will never excuse the lack of a writing, and it will almost never excuse the lack of the testator’s signature.
Under the UPC, how long does a surviving spouse need to survive the decedent by in order to be considered an heir?
120 hours. Anything less than that and they will be considered to have died simultaneously.
How is a per stirpes representation in a will calculated?
The descendants’ portion of the intestate estate is divided into one equal share for each surviving child of the decedent and each child who predeceased the decedent but has at least one living
descendant of her own. Any predeceasing children without living descendants are disregarded. The portion allocated to any deceased child is further divided in like manner, until the intestate estate is fully allocated.
How is per capita at each generation in a will calculated? (note: this is the default method under the UPC)
The division of the
intestate estate starts at the first generation of the decedent’s lineal descendants with at least one surviving member, which we’ll call the prime generation.
The intestate estate is divided into one equal share for each
surviving member of the prime generation and each predeceasing member of the prime generation who has at least one surviving descendant.
Here again, predeceasing members without surviving descendants are disregarded.
Each surviving member of the prime generation receives one share.
Any shares allocated to predeceasing members of the prime generation are combined into one share and then allocated in like manner among more remote descendants, until the intestate estate is fully allocated.
Under the UPC, what happens to a decedent’s estate if they die intestate and have no surviving descendants or parents?
If either or both of the decedent’s parents have
surviving descendants, then those descendants take by representation whatever doesn’t go to the surviving spouse.
If the decedent has no surviving parents or descendants, and the parents also lack surviving descendants, then whatever doesn’t go to the surviving spouse will devolve to the decedent’s grandparents or their surviving descendants by representation.
What is an inter vivos trust?
An inter vivos trust is one that the settlor creates during her lifetime. Normally, no specific formalities are required to create an inter vivos trust. The settlor need only manifest intent, whether orally or in writing, for a trustee to hold specific property in trust for a beneficiary.
What is a testamentary trust?
A trust arising by will must, of course, comply with
all the same formalities that are required for a valid will. Additionally, because a will has no effect until the testator’s death, a testamentary trust has no effect until the settlor’s death.
What is a remedial trust, and what are the two main types of a remedial trust?
A remedial trust’s purpose
is not to facilitate a donative transfer of property. Rather, a remedial trust is imposed or implied to provide an equitable remedy to redress a wrong or, perhaps, fill a gap in a donor’s dispositive plan.
The two main types are constructive trusts and resulting trusts.
Courts will impose a constructive trust if a party wrongly has title to a piece of property in the trust, and the trust will compel the wrongdoer to turn the property over to the aggrieved party.
Courts will impose a resulting trust if an express trust fails and they need to do something with the property.
Describe a resulting trust.
The law implies a resulting trust if an express trust fails partially or wholly.
Resulting trusts usually arise if (1) a transferor transfers some or all of her equitable interest in property; (2) for one reason or another, that interest is not entirely disposed of nor entirely retained by the transferor; and (3) there is an unrebutted presumption that the transferor did not intend for the transferee to have the remaining beneficial interest.
Here, courts will impose a resulting trust upon the transferee in favor of the transferor or her
successors in interest. The resulting trustee’s obligation, then, is to transfer the relevant
interest back to the transferor or her successors in interest.
Describe a constructive trust.
“Constructive trust” is a technical term of art describing a specific equitable remedy that courts employ to address unjust enrichment. The remedy applies if a wrongdoer is unjustly enriched by acquiring legal
title to specific, identifiable property at an aggrieved party’s expense or in violation of the aggrieved party’s rights. Here, to address the injustice, the court may declare the
wrongdoer to be a constructive trustee over the property (and its traceable product) for the benefit of the aggrieved party. The constructive trustee’s sole duty is normally to transfer the property to the aggrieved party, under whatever terms or conditions the court sees fit to impose.
Who can serve as a trustee for an express trust?
In an express trust, the trustee can be virtually anyone, including (1) a natural person, (2) an artificial entity, (3) the settlor, (4) a beneficiary, or (5) a third party.
When is a surviving spouse not entitled to claim an intestate share if the decedent spouse made a will prior to the marriage to the surviving spouse?
In three circumstances: (1) the will was made in contemplation of the marriage; (2) if the will expressly states that it is to remain effective despite any later marriage; or (3) if the testator provided for the surviving spouse outside the will, and the testator intended for this provision to operate in lieu of any gift under the will.
What is an omitted child under a will?
A child for whom there is no provision in the will because they were born after the will was executed, or a child that the testator erroneously thought was dead when the will was executed.
When may an omitted child not claim a forced share of an estate?
If the will leaves most or all of the estate to the omitted child’s other parent, who survives the testator and is entitled to take under the will.
Also, if the testator had other living children who also get nothing under the will, the omitted child also gets nothing.
But if the testator’s other children take under the will, the omitted child can receive a forced share.
But in ANY case, an omitted child receives nothing if they are (1) intentionally omitted from the will; or (2) if the testator provided for the child through some nonprobate transfer.
If an unmarried testator makes executes a will and is clear that the will is to not consider any future spouse in their asset distribution, and then subsequently gets married without updating their will, what (if anything) is their spouse entitled to in the event of the testator’s death?
The surviving spouse’s elective share is sometimes called a forced share because it permits even an intentionally disinherited surviving spouse to elect to take a share of the estate, although doing so would directly contravene the testator’s will. If the will does leave something to the surviving spouse, then the surviving spouse can take either the elective share or the testamentary gift, but not both cumulatively.
What are the core principles of the liabilities that arise when an agent acts on a principal’s behalf? (when in doubt on the bar exam, come back to these)
- Creating Agency Relationships
- Types of Agent Authority
- Contract Liability
- Tort Liability
What questions should you ask yourself if a question on the bar exam asks whether an agent’s act binds a principal?
First, identify whether an agency relationship exists. Then, examine whether the conduct involves contracts or torts.
When can a principal be directly liable for an agent’s tort?
When (1) the agent’s tortious conduct is within the scope of the agent’s actual authority; (2) the agent’s tortious conduct is ratified by the principal, that is, the principal later assents to be bound by the
agent’s conduct; (3) or
the principal is negligent in selecting, managing, or retaining the agent.
When is a principal vicariously liable for an agent’s tort?
When the agent commits or conceals a tort with apparent authority.
The best known form of this is respondeat superior (“let the boss speak”), which makes an employer-principal liable for an employee-agent’s tort committed within the scope of their employment, but not a consultant-agent’s tort.
When is an agency relationship created?
An agency relationship is created if a principal authorizes an agent to act on its behalf. A writing is not necessary to create this relationship, even if agreements the agent enters into on the principal’s behalf require a writing.
Talk about the three main types of principals.
A disclosed principal is one where a third party working with the agent knows or has reason to know of the principal’s identity. Partially disclosed and undisclosed agents follow the predictable pattern of definitions here.
When is a general partnership formed?
A general partnership is formed when (1) two or more persons join as co-owners to carry on a business for profit and (2) the arrangement doesn’t meet the legal requirements to form a different business entity.
What are some differences between a general partner and a limited partner?
A general partner’s actions binds the entire partnership, where a limited partner does not.
Also, a limited partner contributes capital to the business but does not participate in business decisions.
What are some key aspects of dissociation?
Dissociation is when one partner withdraws from the partnership.
Dissociation does not end the partnership.
A partner that dissociates is still liable for partnership obligations before dissociation.
There are also certain circumstances where, within two years of dissociation, a partner remains liable for the partnership’s acts and vice versa.
