trust Flashcards
general
Trust
When ____ transferred the asset to ____ to hold for the benefit of ____ a trust may
have been established. A valid trust has the following elements: 1) Intent by the Settlor,
2) Capacity by the Settlor, 3) Separation of Legal and Equitable Title, 4) Identifiable
Beneficiaries, 5) a Res, and 6) a Proper Trust Purpose.
Utmost Importance à following the intent of the Settlor
Resulting Trust Blurb I
Given that the purpose and intent of the trust is complete (higher Ed done, parent dies
in support trust) and res remains the Court will order that the remaining res reverts
back to the settlor or the settlor’s heirs as a Resulting Trust
Resulting Trust Blurb II
Given that the trust fails (church closes, hospital closes, purpose illegal) and the purpose
and intent of the trust was specific, the court will always follow the intent of the settlor
and impose a Resulting trust for the res.
Cy Pres Doctrine Blurb
If the Court deems that the settlor’s intent was general, and the charity fails of is no
longer in existence the court will utilize the Cy Pres doctrine and apply the res to
another charity as near as possible to the settlor’s intent and purpose.
PMCT (3rd type of resulting trust) Blurb
There appears to be a Purchase Money Conveyance Trust, which is a Resulting Trust
because ___ gave the money to purchase the home/condo/asset yet legal was held by
___. The court will deem that ___ has equitable title as the beneficiary who gave the
money and ___ is the trustee holding legal title for ___.
Constructive Trust Blub
The courts may utilize the equitable tool of a constructive trust to prevent unjust
enrichment, as ___ received an asset by his/her breach of fiduciary duty/fraud/undue
influence.
RAP Blurb
There appear to be an issue of the Rule Against Perpetuities as to the future interest
held by ___. The rule holds that any future interest must vest in a life in being within 21
years. However, …see next…
90 Vesting Statute Blurb
Most jurisdictions have adopted the 90-year Permissible Vesting statute under the
Uniform Probate Code, they will use a flat 90-year rate, not actual measuring lives, and
as such _____ future interest will not violate RAP.
my outline
Trust Refresher (Inter vivios(alive) or Testamentary(dead)
Trust creation* Writing not required except for land *
NEED: a settlor ,intent, (settlor and trustee can be the same person )susceptible benificaries(besides trustee), trust purpose(what the trust is for), funds(funds can be added later , delivers the trust to a trustee
Exception-if no funds ..is a future trust
-and will only come into existence when funds added or a remanifest of an intention to create a trust when funds become available.(ie. Get funds later and deposit it into the trust account)
Exception-if sole trustee is sole benifificary is merger of title and not valid (has to be another benificary besides trustee as sole benificary)
can add spend thift provisions - clauses in trust to limit things
-Settlor- make trust, trustee- control trust benificary- inherit funds in trust, successor-control trust after trustee die
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Trust fails if
Merger of title: settlor cant be the only benificary…as long as another is named the benificary if its young kids its okay
results back to settlor and settlor died then go to residuary beneficiary
Not funded…..until its funded/that is remanifestation)
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Types of Trust
- Spend thift trust- benificaries are unable voluntary or involuntary to transfer interest in the trust. Cant sell of give away rights to future income or capitulant creditor are usually unable to collect or attach rights
EXCEPTION:- (not enforceable if the settlor is also a benificary in the trust and he put the provision there for the purpose of blocking his creditors.
-Discretionary trust- trustee has discretion to distribute ….
Here, b’s could only interfere if can show trustee is abusing (bad faith or dishonesty)
Courts can interfere if related to a support trust but won’t if trustee Is given absolute and unreviewable discreation.
Bad faith -is don’t want give to a benificary because some personal reason like they had an argument.
-Support trust -trustee is required to distribute….. (proceeds or principal) as necessary for the beneficiary’s support.
Here, trustee can make good faith arguments however won’t succeed if in regards to the support trust
-(Trusts can be combined)- the income can be set up to support and the principal competent is set up by discretion of someone (trustee)
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Funding
Ways to fund for future-
-pour over gift-funding a trust with money from somewhere else like a will
is okay as long as trust is in existence b4 or at the time the will is is executed.
- revokable clause (includes the power to amend)
Gift of funds to trust
-pour over gift - its from a will … (is testator still alive ? We’re good)
Traditional view ..be in existence before will executed (made)however ;
Prevailing view- . Will come into existence after will but need to be before testator(will owner) die.
trust don’t need to be funded as long as get funded b4 testator die
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Benificaries of trust
- Benificaries can receive benefits of the trust once settlor dies, or at the time settlor states, or when
- Class close once settlor dies. Unless settlor puts some kind of provision that states who can benefits after or when he dies (ie. To my grand kids…my surviving kids, to a for remainder of her life )
- -If want 2nd and beyond generations to inherit add an-express clause that “issue of deceased children take parent’s share” otherwise the one entitled is treated as predeceased if they die or disclaim their interest and their child gets nothing unless trust had a anti lapse clause.
-must be identifiable & born when its time to receive the befits (when settlor say trust is set to distribute/ a benificary can call for distrubution)
ie: If a class/group identifiablle such as (my children) (not my friends)
-when any thing fails that interest will go to residue
-predecease cant receive unless trust has terms that say survival
-disclaimers-I n trust there is no anti -lapse statute so that person beneficiary’s don’t take their share, they are treated as pre deceased and it goes wouldn’t go to issue …some states allow the children of the predeceased (be safe state both)
*To disclaim need a writing in a reasonable time some states say within 9 months of decedents death
When giving to a charity/schools etc -think CY PRESS provision! -if its no longer around. Cy press allows ct to excersise settlor intent as close as possible . General intent is presumed.
If the charity is not there and the general purpose is gone that is specific and ct will try to decide if should go back to testator estate
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Trustee duties
Depends on if revokable or irrevocable trust, irrevocable -duties are to benificiuarys no amend or modify
Revokable -settlor is owner, duties are to settler, settlor can modify amend
Generally, duties are to :
-administer - in good faith and prudent manner to trust terms
-reasonable care:
preserve and protect the trust corpus
(Make trust property productive(invest) with care (reasonable time, skill and caution, )
should diversify assets unless trust purposes is better served without diversification
act on behalf of all benificarys (unless revokable trust
-loyalty** no self-dealing
- Report - keep beneficiaries informed
- Separate trust property and keep records- no commingle
- Enforce claims and defend trust
- Preserve property and make productive (invest, lease, manage)
can not buy trust assets at all!
even if paid full value or didn’t know was going to appreciate or did it for a good reason
;If do: benificaries can compell trustee to return profits to trust
-Hire someone
if lack knowledge in investments can hire someonee with knowledge must make sure duty of care, caution when selecting.
***If see must act personally, then cant delegate investment decisions. Others modern says can but Trustee must follow up and monitor or is liable for their actions/actual amount of loss.
Whoever was appointed has same duties as trustee had.
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Trustee breach of duty /benificiary remedies
-If trust breach duty
Benificaries may
set aside the transaction, recover the profit made by the trustee, or ratify the transaction.
-judicial action (courts can create)
-Resulting Trust (A trust results back to the settlor)
- Implied by law because the trust failed for some reason
(Either because beneficiary is dead, trust is unenforceable or void)
-Constructive Trust (equitable remedy)
Ct impose on property to fix a unjust enrichment or wrongful act————————————————————
Trustee discretion
authority
Discretionary trust (T has all power and discretion as long as no bad faith and dishonesty)
-trustee have discretion to apply or with hold funds based on duty of loyalty and care.
-, no one cant interfere with trustee decision unless trustee is showing abuse (bad faith/ dishonesty)
Support trust (Support B’s )( T can be compelled/demand to make payment or distribute principal)
-no discreation to refuse to pay bills
-Trustee is required to pay as much as necessary to support benificiarys (even if price increase)
-no discretion to refuse to pay the necessity as long as there is income in the trust
EXCEPTION:change in circumstances /material purpose of the trust so make arguments
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Way to have Control/ power
-Be a trustee
-testamentary power: power only by will
-special testamentary power- allow T to limit class(who can get) and (limit person power by will)
-Power of appointment: decides who takes and how
General: can appoint to self, own estate, own creditors
special: can appoint specific class and not self ,estate,
-If want 2nd and beyond generations to inherit add an-express clause that “issue of deceased children take parent’s share”
-revokable - settlor can amend and modify trust and trustee duties is to allow
-irrevokable -cant amend and modify so trustee duty stay with beneficiaries
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Revocation/termination of trust
-can only be by consent of all beneficiaries as long as don’t violate material purpose ; all need to consent even the unascertained B… they will need a rep …..or won’t happen if parents benificarys parents are still alive may be more
-Spend-thift provision(saves trust from being terminated)- b’s cant terminate trust if termination would interfere with material purpose of trust (ie. Is to support a b that is in a nursing home)UNLESS settlor join he termination action
Reasons when court termination can happen
-Automatically when terms are met
-impossible (no more money)
-illegal
-Country to public
- Revocation by settlor In a private trust
- Revocation by majority of beneficiaries to frustrate the purpose in private trust (unascertained will have a rep for their vote)
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Changing trust purpose/terms
-typically invoked by the B’s or a guardian ….
Change in trust purpose by settlor
Generally, cant change terms of trust if not a discretionary trust however;
-the change must be b’s (including charity) consent of the B’s and the change cant make a material change from the settlors intent EXCEPTION
- can deviate from terms if
settlor did not anticipate change in circumstances and if complied with terms originally stated by settlor , it would impair the trust purpose.
change beneficiary rights (changing the amount that is to be distributed)
-GENerally not allowed because might completely deplete trust leaving out the other benificary
- Must show the change goes with the primary purpose and the other B is a secondary interest.
——creditors ——————————
-Cant reach spendthrift trusts unless settlor is a benificary and it’s his creditors.
–creditors can become beneficiary of a person owning them when they are to receive benefits , if no spendthrift provision
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RAP
- Settlor gift has to vest or fail within rap time (21 years) .
If it not certain to tell if will vest or fail in 21 years then violate rap rule and cant happen -EXCEPTION wait and see rule; wait to the event actually happen and see if the gift will vest or fail in 21 years
(Example settle say estate to grandkids when will probate …it will fail rap because he probably won’t probate will in another 21years but wait and see would wait to see when he die and see if will actually probate in 21 years)
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Creditors
Can access if there is no spend-thift provision but have to wait until whoever the creditor is coming after has a right to the trust at that moment otherwise have to wait until the person gets their right
-can access it the deviator is also the settlor who is the only Benificary or made the trust in order to keep creditors away.
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Charities
-cy-press allows charities to get the money instead of resulting back to the trust if the specific purpose indicated by the settlor is no longer possible or practicable and the settlor manifested a general intent. **to determine intent look at the settlor motive/ reason for wanting to give the money. Was it for the love of something that the college offers or was it the love of that exact college because settlor attended there?
-if cy-press don’t apply it results back to the trust and go to residue
-if charity don’t exist but there is a new charity that is in is close as possible to the other charity intent then that charity will obtain the money.
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Fulfilling a settlors wants for his trust
Want to have control =trustee
Want someone else to have control when you die=successor trustee
Want someone to have control but dont them to be a trustee then= make the bank successor trustee
Want others to gain money from trust=benificiarys
Want to add assets later-add a revocability clause (comes with power to amend) only way won’t be able to add this is if the trust already is irrevocable (some states still all if its the settlor changing to revokable)
Want to add assets to trust from will- add pour over gift provision in will to fund the trust-if from a will then should be b4 or at the time the will is executed but okay if after as long as b4 testator dies
Want someone to live comfortably (they decide what they want) =add a ascertainable standard=can ad provisions to specify your intent could even state the amounts you want limited ..could give them a right to withdraw
Want to make sure a person provides for a certain class =power of appointment
-general power- can appoint to self, own estate, own creditors
-special power -can appoint to specific class and not self, estate, or creditors
- testamentary- excursive by will only
Want to make sure grand child or person receives from trust if they predecease a parent/beneficiary in the trust?= add a anti lapse gift as long as the person is of a relationship to the settlor (sometimes only apply to testamentary gifts (gifts written in a will) so…..
can expressly write the provision …if do nothing the child will get in defualt anyway
Revocation/termination of trust
-can only be by consent of all beneficiaries as long as don’t violate material purpose ; all need to consent even the unascertained B… they will need a rep …..or won’t happen if parents benificarys parents are still alive may be more
-Spend-thift provision(saves trust from being terminated)- b’s cant terminate trust if termination would interfere with material purpose of trust (ie. Is to support a b that is in a nursing home)UNLESS settlor join he termination action
Reasons when court termination can happen
-Automatically when terms are met
-impossible (no more money)
-illegal
-Country to public
- Revocation by settlor In a private trust
- Revocation by majority of beneficiaries to frustrate the purpose in private trust (unascertained will have a rep for their vote)
my outline
Wills Refresher
Will types and requirements
Attested Will(Writing don’t have to be by testator)
-testator acknowledge that this is a will
- signed by testator(any symbol), *if unable to sign, another person in their discretion and in front of them can sign
-at least 2 witnesses must see signature and witness sign too in a reasonable time (if witness is a B their gift is void b4 will was void)
-All wills can be revoked and modified B4 death
-All wills must have present intent (no future writings )
-attestation clause - added at end which says the above required elements were satisfied
Holigraphic will -
handwritten with two witness
unwitnessed is not valid unless;
-written Entirely in witness handwritten while portions that is not material can be typed
-signed by testator
- Reflect testator intent to make a will (not change or add to a will)
- It will replace and revoke prior will
(This will, will become an attested will if signed and witness by 2 or more witnesses so don’t matter if state law don’t allow it)
NO ORAL WILLS
Valid or Not valid or In partally valid
Will invalid in whole will was influenced T would not have made that decision of whole will (go intestacy)
Will invalid in part if some of it was influenced (show which part does intestacy and which will be enforced by will )
the part that was influenced is going intestacy is the party that dont meet requirement to be executed or can be contested because of (undue influence, fraud, mistake etc)
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Witness and testator requirements
Witness requirements
-competent - mature and mental enough to understand and appreciate the nature of what they witnessed and attested to (can testify in court if need to
-Interested witnesses( witness that will benefit from will)
CL- will is void
Majority law- will good but witness gets nothing
Exception ;witness can get something if either;
1)when witnessing the testator sign, there was 2 other witness who are not interested witness
2)witness would get a benefit if there was not will and it was interstate (child, grandchild, sibling
Testamentary requirement (maker of will)(capacity and testamentary intent
Capacity
Capacity- 18 or older at the time the will is executed
Mental capacity- understand the nature and extent of
1. his act (excepting a will)
2. Property (the property he has)
3. People (ppl who are the natural objects of his bounty)
Drug addiction don’t take away capacity
Testamentary Intent
- Presently Wants the instrument to act as a will
- Extrinsic evidence is allowed to prove intent or lack of intent
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Additional documents to will
An amendment, modification, or alteration to a previously executed will but 1st will must be properly executed …….all of this must be made before the will is executed (testator person dies )
Codicils republished (is the updated/ new will in its totality forget the 1st will or making a new bequest for one item on the same page of original will)
Same requirements to make a will valid (writing, present intent, min 2 witness, signature
- Is satisfied, when the will is going be republished and have the date of the codicil
Incorporation by reference (is an addition to the 1stwill …or adding 1st will into this 2nd will dont forget the 1st will)
Not apart of the 1st will but will be incorporated into it if the 1st will reference it; must have
- Intent to incorporate - shown in this will
- Authenticated document-(look at the 2 and see they go together) will describes the document so much that it reasonably identify the document and the document correspond to the will
- The document is In existence upon will execution -
- unless tangible property- document must be signed by testator, and describe items and to whom they are devised with reasonable certainty
K’s = life insurance policy’s etc
K’s prevail over wills so whatever k say then that’s it.
Integration
A part of a will becomes separated (unstapled)
- Can be integrated if;
1)physical presence - the document was physically present at the time of the will’s execution (dont matter if only one only one of the papers is signed) and
2)intent of inclusion- testator intended the document to be part of the will
Can use witness testimony and other evidence
Presumed if
- Physical connection of pages (staple mark, numbered pages) or internal coherence (pages become complete when read together)
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* Only future act allowed*
Acts of independent significance (identifying property /beneficiaries)
The thing (beneficiary or property) is current in the testator life, the testator just don’t know the exact identify since, testator did something to the identity of the property or beneficiary before death by adding or subtracting)
Beneficiary
Example- testator leaves payment of 100 every 2 weeks to who ever is my gardener upon my death. At the time tester write the will, testator has 3 gardeners but ended up firing 1 and hired for 2 more be fore death. Testator don’t know who will be the gardener when he dies but he know he will have one.
Identifying Property
Example- tester states, I leave all of my cars I own to my wife when I die. At the time testator owns 4 but sells one and buys 2 more before death
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Stopping a gift to a Benificary
Predecease-If a beneficiary of a gift predecease (die) before the testator the gift is void unless; testator expressly states what children of predecease to obtain or ….
Anti lapse statute: (relatives, or adopted only)
The gift will still be good if the predeceased beneficiary (dead beneficiary) was
1. A relative or adopted by testator…their decedents will take their share If they are predeceased (some states only allow testator children/grand children some states allow any relative )
Slayer Rule- If Decedent Death is caused by beneficiary
Beneficiary is Cut off from inheritance as if predeceased decedent
Class gifts - if testator leave gift to a class and one of the class members, predecease the testator, the surviving class members take that persons gift UNLESS
Anti lapse statute apply to that predeceased member, then it goes to that pre deceased person decendents and not the class
Ademption- (identify theory)- a gift of property fail if the testator no longer has the named property in their estate when they die
Exceptions
1. Intent test- (some states allow the party to received real or tangible property in its place if can show the testator intended them to take that property.
2. A guardian or conservator was appointed - then the the person can get the proceeds for the sale of the item they were entitled to. UNLESS the proceeds was used to take care of the testator and is gone (if any is left then person can get that little share)
3. Specific devise of real property- if assigned property but T sold and got a new different property, can get that property
1. Same if T state pink carin will but b4 T t died, T had a yellow car…B gets the Pink car
Operation of law
If got a divorce, the former spouse is not entitled to share any more however any one else related to spouse still is unless the testator specifically revokes there gift …..
UPC don’t allow other to still receive the gift and it passes under intestacy law
stock -shares stock or shares dividends
-dividends (money every month from the shares vs shares (keeps the shares in the company and you get no $)
-CL says only shares not div ups says both
Unrelated ppl-
- If gift specified to them may get it (some states allow and some states dont) goes to residue
- If the unrelated person would have received because is a child of a person that was entitled….this child wont receive because not related (anti-lapse rule)..goes to residue
insufficient funds to pay bequests and claims /Abatement (reduce all gifts to pay debts, taxes, expenses)by a certain order(unless testator specify an order)to get enough money to pay off bequests. Once you get that amount then can stop.
Sell off order
1st -property not disposed off in will so is (intestacy)
2nd -residuary estate (the portion that would remain after all specific gifts and bequest have been made
3rd- general devises (abate pro rata) ($ amount payable from estate’s assets) ie bank account
4th Specific devises and bequests (actual described property )ie. Jewelry
Specific devises
-Only for specific gifts that are satisfied only by giving the actual described property
Not to general devisee
-Gift of a $ amount payable from estate’s assets
Demonstrative devises
-Gift of a general amount that I identify some asset as a sources of payment (stock)
-IF a demonstrative git fail, estate have to sell off other property to satisfy the gift UNLESS
Intent theory- a deemed gift can be saved if evidence establish that the ademption would be inconsistent with the testator’s intent…the beneficiary gets money value of the specific bequest or get property that was acquired as a replacement for the deemed gift
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Revocation
Revocation by Testator (
can be in whole or part made anytime before death can be discovered after death)
- Was the will T is trying to revoke valid in the first place ?
Need: T have the testamentary capacity to make that will ? Can consider extrinsic evidence) - How is T trying to revoke? By something in writing, striking or a physical act?
Revocation be written instrument
-Intent & elements for execution/making a will (signature of T and witness)
Revocation by physical Act
Burning, tearing, destroying will
-intent
If someone else do it, same as when someone else sign will (testator told them to and in testator presence)
Partial revocation (crossing out, striking parts in will)
- Had to last be known to be in testator possession and its presumed testator did the marks
- - Was there a K involved? Yes, then
- A. Was a writing involved to form the K….
- Provisions in the will stating the material provisions of the k
- A express reference in a will to the k and extrinsic evidence to prove the k
- A writing signed by the decedent evidencing the k
- A. Was a writing involved to form the K….
Or
2. Was performance involved to form the K? Then can use
1. Part performance takes the will out of the statue of frauds and makes it validated the actor can get a remedy of damages or value of the promise (get what the promise was)
2. Promissary estoppel - the person relied to their detriment on the promise and T knew the actor would rely
3. Quantum merit-if k claim unsuccessful, can make a claim for the reasonable value of the services rendered to T and the actors had a reasonable expectation to be compensated
Exceptions : a court disregard revocation if the revication was determined on mostake of law or fact and would not have occured but for T’s mistaken belief that what T put to replace the orginal was valid the B would get what was orginally put there
Revocation by law (a happening of a event)
Marriage -marriage after the execution of a will , leaving a spouse left out of will , if spouse survive, husband, spouse will get her share by law unless will provides for her then she gets what will says
Divorce - upc if divorce, revokes all bequests to spouse in will and remainder of will is valid, unless will states in event of divorce, still want spouse to have.
-if spouse had a child from a previous marriage, absent revocation by testator they will get what’s in will still
Reviving Revoked Wills
Generally, If a will is revoked by an instrument, but then that instrument is revoked, the original will is revived.
UNLESS
-Testator make statements or other evidence make clear testator did not intend to revive the will.
-Re-execution, a revoked will can come back by a codicil or subsequent will as long as requirements are satisfied
Dependent relative revocation (DRR)
Ct disregard a revocation based on a mistake of fact or law. The court will revive the revoked will if it will come close to what the testator was trying to do but failed rather than the ct applying interstate succession if;
- Revocation was because of mistake of law or fact
- Revocation would no have occurred absent testator mistaken belief that some other plan for disposition of property was valid and
- The original revoked will is closer to testator preference than would be interstate succession
Valid or Not or In part
Will invalid in whole(go intestacy)
Will invalid in part (show which part does intestacy and which will be enforced by will )
Most likely the part that is going intestacy is the party that dont meet requirement to be executed or can be contested because of (undue influence, fraud, mistake etc)
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Will Contests
A will can be contested for any reason. Common reasons are;
- Lack of capacity or testamentary intent
- Defective execution (failure to comply with require formalities)
- Undue influence, fraud, mistake
- Will has been revoked
Standing: a person with interest
(Beneficiaries, should be a beneficiary, or would benefit if testator died interstate (parent, sibling, niece nephew)
No-contest Clauses
A beneficiary lose their interest if contest will
-Don’t apply if’ challenging executor appointment, jurisdiction, or asking the court to interpret the will
-Majority- no forfeiture of interest if challenged on good faith and basis on probable cause ( fruad. Undue influence etc) if good probable cause no forfeiture, will get amount in will
-Minority- given full effect regardless of challenging cause or intent
Contestant must show;
Undue Influence
-Influence was on testator
-Testator mind and free will were overpowered; and
-Testator will would not have been executed absent undue influence
Presumption arise if;(someone that would benefit or would take great advice from)
-A confidential relationship existed between them
-Beneficiary participated to a significant degree in executing
-then burden shift to proponent of will to prove there was no undue influence
Fraud
- if the will of a provision are result of fraud;
Show;
testaator has been intentionally decieved by person to
- Character or content of the will or its provisions nand/or
- Facts extrinsic to the will would induce the will or a particular provision or disposition in the will
- Testator acted in reliance on the misrepresentation (he would not have made the gift or executed the will if he knew the facts
Mistake
Mistake to the nature of the instrument-
extrinsic evidence is allowed to show testator made a mistake to the nature when he signed (didn’t know he was signing a will
- May nullify the testamentary intent requirement
Mistake in inducement
No relief if mistake relates to the reason the testator made the will or made a gift in the will UNLESS Fraud or undue influence
Mistaken omission
No relief is available and no extrinsic evidence to show a will mistakenly omitted a provision or contains provisions that do not reflect tester’s intent
Reformation for a mistake-
If mistake is found, the court can reform terms of a will to conform to tester’s intent
Requirments- must be shown by clear and convincing evidence that a mistake of law or fact affected the will and testator’s intent
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Non Probate transfers
Ways to transfer property outside of probate
Inter vivos gift
Give the gift while alive
To be valid need: intent, delivery, and acceptance
Joint tenant Bank account with right of survivorship-
Surviving joint tenant is entitled to the money
Totten Trust
Deposit funds in account as trustee for someone
-creates a valid removable trust, even though depositor has control
-Funds pass to designated beneficiary upon trustees death
-Revocability by trustee-depositor by withdrawing funds before death
Life insurance
K between policy holder and insurance company which a beneficiary is named
- Unless k provides otherwise,
- cant change the beneficiary through a provision in a will
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Interstate Succession Situations -no will -Will don’t properly dispose -Decedcharient will is denied probate Inheritance (who can be beneficiaries): Adopted children -Treated the same as natural child -Cant from natural parent unless adopted parent is the natural parent husband
Step child & foster child
Can inherit from foster parent or step parent if adopted
Prior marital non children
Can inherit if paternity is established for dad or testator specifically grant them a gift… will get from residue if based of T’s intent they were not listed as T’s child
Posthumous children
Child in stomach can inherit
Line of inheritance/ takers -spouse with no children gets all -spouse with children that are not hers- spouse get 1/2, children get the rest -spouse with children that is his and hers- spouse her entire estate -no spouse- everything goes to children - No spouse or children- goes to parents and siblings - No spouse, children or parent- goes to siblings - No surviving parents or siblings - nieces and nephews..etc - No family- goes to the state
Distribution process (siblings, nieces, nephews)
General: all of the 1st takers are predeceased. SO;
-No spouse (because if spouse was here then 1/2 to them)
- No children because they will split everything
- No parents because then they split everything
Per capita aka modern day per stirpes - start at first generation of living takers , split equally among (Whoever is alive or their decendents )
So start at siblings, if predeceased, their children(decendent grandkids)
- Each serving person takes 1/…how many of them at that level (I .e 3 then 1/3)
It’s 100k: sis is alive, brother died but have children (3)= equally would be 1/3 here because more than 2 ppl
EXAMPLE:
Sis 1/3 =25k niece and nephew get 1/3 each also 25k each
Per stirpes -
- Same as per capita except each household gets a cut and would divide the cut with whoever is in the household starting at the deceased level
Example: 2 brother’s and 1 sister, 1 brother predeceased with 3 surviving children
Would be 1/3 of siblings even though bro is predeceased ….now out of bro 1/3 his 3kid split so either 1/4 or 1/6 …
Situation when heir/beneficiary dies in close time frame as dependent
-it will be assumed heir/beneficiary died before decedent (so decent will have right of survivorship and the distributions will go according to decedents daily and heirs (in case the beneficiary was only the spouse)
UNLESS
120HR (5 days) Rule- the heir/beneficiary would have to have survived the decedent this amount to prove she outlived decedent
Slayer Rule- If Decedent Death is caused by beneficiary
Beneficiary is Cut off from inheritance as if predeceased decedent
Disclaimer (I don’t want my share)
- Must be in writing, irrevocable, and filed within 9 months of decedents death
- Interstate passes as if that party predeceased decendent
Advancement (gifts from decedent to beneficiary during D’s life)
- Common law- gift amount get deducted out of beneficiary share
- Modern law- gifts are advancements and not deducted from share if in writing decedent states;
- Decedent declare intent to make the gift an advancement
- Beneficiary acknowledge the gift to be an advancement
WIILS Step 1: Probate Proceeding - A person is appointed to carry out administration of decedent estate Executor - named in will or court appoint one MUST have: capacity Responsibility: wind up estate (file paper work, pay creditors, notify beneficiaries and devises, manage property distributions
Power to appoint:
Decedent gives donee the power to designate a new owner of property
-Can be general or special
General- has decoration on who to give property to, can be self dealing
Special- limited, cant self deal (give to self, self creditors, self estate )
Present or testamentary power
Present- during donee’s life
Testamentary- by donee will when he/she die
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Type
allow a person to make health decisions
- Writing, signed by testator principal, 2 witnesses
-Living wills -specify life- sustaining and pain- alleviating measures if temp ill or vegetative state
-Durable Healthcare powers of attorney decisions- appoint a ind. to make decisions if principal is indefininitly incapacitated
- Family consent - when no will or health power of Att. Close relatives make decision
Contract involving wills Contract law elements
-K’s to revoke, no make, make wills are enforceable according to contract law
-some sates also require the will to reference to K ,material provisions in the k, signed by testator evidencing K
Breach on K is - constructive trust vin favor of intended beneficiary under k
Joint wills - 2 or more ppl wills in 1 document , either person cant effect other will (can probate when either 1 die, if one revoked the other is still fine)
Mutual wills - (2 or more ppl )wills together will similar terms
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