Real Property- Wills and Trusts Flashcards
what are the three types of deeds?
general warranty deed
special warranty deed
quitclaim deed
Under the general warranty deeds how many covenants are implied?
six convenants.
A) three present covenants
* Covenant of seisin: Warrants that the deed describes the land in question;
* Covenant of the right to convey: Warrants that the grantor (i.e., the seller) has the
right to convey the property;
* Covenant against encumbrances: Warrants that there are no undisclosed encumbrances on the property that could limit its value.
2) three Future covenants
* Covenant of quiet enjoyment: Grantor promises that the grantee’s possession will
not be disturbed by a third-party claim;
* Covenant of warranty: Grantor promises to defend against future claims of
title by a third party;
* Covenant of further assurances: Grantor promises to fix future title problems.
This is the deed that warrants the most protection because it protects for errors of the grantor and against third parties
What are the protections of the special warranty deed?
The grantor warrants against defects only caused by the grantor.
o This type of deed provides a lesser amount of title protection than a general warranty deed.
o It includes the same six covenants as a general warranty deed, but they only apply to the acts (or omissions) of the grantor.
What are the protections of the quitclaim deed?
The grantor makes no warranties as to the health of the title.
o This type of deed provides the least amount of title protection.
o Often used in tax sales and intra-family disputes (e.g., divorces)
When does breach of deed warranties occur?
Breach of the present covenants occurs at the conveyance_.
* Breach of the future covenants occurs after the conveyance once there is interference with possession.
* Remedies: Damages
What is a will, who are the parties?
A will is a way to transfer real property from the deceased to other devisees.
In order to interpret a will the guiding principle is the testator’s intent.
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What happens if a person dies without a will?
If a person dies without a will, her estate is distributed by intestate succession. this is the default estate plan created by the legislature.
Who are the parties in wills/intestate law?
o Heirs: People who take a decedent’s intestate estate. To be an heir, you have to survive the dead person who dies without a will;
o Devisee: A person who takes a devise by will (alternative term: Legatee);
o Decedent: Dead guy;
o Testator: Dead guy who made a will.
What is ademption?
Ademption: A devise of property that fails (or “adeems”) because it is not in the testator’s
estate at death:
Basic rule: The gift fails and the intended recipient gets nothing;
Satisfaction: If the testator gives the intended beneficiary the promised gift during
life, then the beneficiary keeps the gift (“ademption by satisfaction”).
what happens when the intended beneficiary dies before the testator?
The gift fails (aka lapse) and would fall to the residuary gift.
To prevent this from happen, every state has an anti lapse statute.
- In most states, to qualify under an anti-lapse statute, the predeceasing beneficiary
must be a relative of the testator who dies leaving issue. - The statute replaces the intended beneficiary with a family member (e.g., the
children of the beneficiary) who stands in their parent’s shoes and takes the
gift on their behalf. - Why? More consistent with the testator’s intent. Rather go to the family than residuary
what is a trust?
A device for managing property with bifurcated ownership. One person (the
trustee) owns property (legal title) for the benefit of another person (the beneficiary) who holds equitable title.
o Charitable Trust: Trust designed to benefit the public and is charitable in nature
o Private Trust: Trust designed to satisfy some legal purpose by giving property to a person or group for the benefit of another person or group.
Who are the parties in trusts law?
Settlor: Person who creates the trust
o Beneficiary: Person who benefits from the trust
Holds equitable title (no obligations and
all of the benefit);
Has standing to enforce the trust.
o Trustee: Person (can be an entity) who manages the trust property and holds legal title
What is the subject of restraints on alienation>
There are restrictions on transferring property.
Where do we see restraints on alienation>
Inter vivos grant of an estate smaller than a fee simple;
o Devise of an estate smaller than a fee simple;
o Co-tenant agreement;
o Covenants that runs with the land;
o Easements.
What are the rules regarding restraints on alienation?
An absolute restraint on alienation is void;
o A partial restraint is valid if it is for a limited time and a reasonable purpose;
o A restriction on the use of property is generally permissible (e.g., covenants).
