Pg 22

Question 1

What are mutual wills?

Answer 1

When each will is a mirror image of the other will and everything is left to the surviving spouse and then to the kids. The burden is on the party claiming that there is a contract to prove it by clear and convincing evidence

Question 2

What is a statutory will form?

Answer 2

These are created by the State and you cannot add or cross out any words of this form, or else it will be invalid or the court will ignore those parts. You can fill in the blanks and amend it by a separate document/codicil. If you are using this form and calling it a statutory will, it must follow the will form exactly, it is not customizable.

Question 3

What are the times that you should make a new will?

Answer 3

If you get married, divorced, terminate a domestic partnership, get an annulment, have more kids, your spouse or kid dies, your ex partner remarries, there’s a major change in assets, you get fired, etc.

Question 4

What is an exortium clause?

Answer 4

This is at the beginning of a will where the testator says that he intends to make a will and to an revoke all previous ones. This helps the reader know that it isn’t a codicil and it knocks out everything that has come before it, and it gives testamentary intent.

Question 5

On a statutory will form why is it smart to strike through anything that you don’t intend to use?

Answer 5

So that no one can come along later and try to add things

Question 6

What is the effect of a testator nominating a guardian for his minor children?

Answer 6

This is just a nomination, the court must approve the person in order to protect from changing circumstances

Question 7

Is it necessary to require a bond?

Answer 7

No, but you have to make a decision about whether you will require one in the will.

Question 8

How is the bond amount set?

Answer 8

By the probate court based on statutory formulas.

Question 9

If you are the executor of a will, it is smart to get what to protect yourself?

Answer 9

A representative bond or an executor’s bond from an insurance company

Question 10

What is involved in the California statutory will?

Answer 10

This is based in California law and is only for California residents. It’s a simple will that is not meant to deal with complicated things or lots of money. You cannot add or cross out words because that will make it invalid or the court will ignore what you’ve added or crossed out. You can only fill in the blanks.

Question 11

What is a conservator?

Answer 11

Someone that is appointed to take care of the estate or person of someone that is not competent.

Question 12

What is the UTC?

Answer 12

Uniform trust code

Question 13

What are the five major areas of testing in trusts?

Answer 13

– validity
– administration of a trust
- accounting problems
– transfers of interest
– modification and termination

Question 14

Is it necessary that the word “trust“ be used in a fact pattern that deals with a trust question?

Answer 14

No

Question 15

Can trusts be created orally?

Answer 15

Yes, as long as the SOF is not impacted [there’s no RP or other such things involved]

Question 16

What do you have to figure out if you’re determining the validity of a trust?

Answer 16

Five major concerns:
– intent to create a trust
– identifiable trust corpus
– ascertainable beneficiaries
– proper purpose for the trust
– proper mechanics

Question 17

What is a way to get extra points in determining the intent to create a trust?

Answer 17

Discuss the wording of the trust and whether it was called a trust, whether he appointed a trustee, etc.

Question 18

What does identifiable trust corpus mean?

Answer 18

That the trust was funded

Question 19

What’s involved in proper mechanics for a trust?

Answer 19

Did you meet the proper mechanics for the type of trust, whether it is a trust by declaration, inter vivos, testamentary, etc.

Question 20

What is involved in the administration of a trust?

Answer 20

Look at what the testator is doing as he carries out the instructions of the trust to see if he is acting properly or creating liability issues

Question 21

What are the two major things you should address with regard to administration of a trust on an essay?

Answer 21

– what the trustee’s powers to administer the trust were

- issues of liability that were created by how the trustee administered the trust

Question 22

What are some issues of liability that can be created by how a trustee administers a trust?

Answer 22

• if the trustee is liable to the beneficiary for screwing up administration of the trust
  – if the trustee created liability to a third-party through his administration of the trust
  – remedies that would be available to a beneficiary

Question 23

What are considered to be accounting problems with regard to a trust?

Answer 23

This only applies if there are multiple beneficiaries. The trustee must treat all of them fairly, so he cannot favor one over the other. This usually involves an income beneficiary and a remainderman. Ie: if the trust pays income to A for life, then on his death, it distributes the corpus to B.

Question 24

What are considered to be transfers of interest with regard to trusts?

Answer 24

You have to figure out if it’s possible for a beneficiary to transfer his interest under the trust. Usually this deals with spendthrift clauses that control the person’s ability to transfer his trust interests. It also deals with assignments

Question 25

What is involved in modification and termination with regard to a trust?

Answer 25

You have to ask if the trust can be modified or terminated. You have to look at it from both the settlor's side and the beneficiary's side. To see if the settlor can modify or terminate and if the beneficiary can modify or terminate. This also depends on whether the trust is revocable since revocable trusts keep the power to amend with the settlor.