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MEE > Trusts and Estates > Flashcards

Trusts and Estates Flashcards

1
Q

Intestate succession

A

The distribution of a decedent’s assets that are not disposed of by will

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2
Q

Intestate succession issues arise where:

A

*decedent dies without a will
*decedent’s will does not dispose of all property
*decedent’s will is denied probate

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3
Q

Intestate Share: survived by spouse with no descendants

A

surviving spouse inherits entire estate

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4
Q

Intestate Share: survived by spouse and descendants

A

surviving spouse inherits one-half or one-third of decedent’s estate, with remainder to surviving descendants

**If decedent’s descendants are also surviving spouse’s descendant’s, entire estate goes to surviving spouse

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5
Q

Intestate Share: Not survived by spouse

A

Decedent’s surviving descendants inherit entire estate

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6
Q

Intestate Share: Not survived by spouse or descendants

A

decedent’s surviving parents inherit entire estate

If no surviving parents - descendant’s of decedent’s parents

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7
Q

Per Capita with Representation (Modern per Stirpes)

A

Estate is divided into equal shares at the first generation at which there are living takers

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8
Q

Per Capita at Each Generation

A

Divided at first generation with living takers, but shares of deceased are combined and divided equally among takers at next level

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9
Q

Inheritance Rights - Posthumous children

A

a child in gestation at the time of decedent’s death inherits as if they were born during decedent’s lifetime

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10
Q

Inheritance Rights - Stepchildren & Foster Children

A

Generally have no inheritance rights

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11
Q

Simultaneous Death

A

Two approaches
(1) Uniform Simultaneous Death Act – property passes as though the beneficiary/her died before the decedent unless there is sufficient evidence decedent died first

(2) 120 Hour Rule – beneficiary/heir is only treated as having survived decedent if there is clear evidence that she survived by 120 hours or more

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12
Q

Slayer Rule

A

One who wrongly brings about the death of a decedent forfeits an interest in decedent’s estate

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13
Q

Disclaimers

A

One may disclaim an interest that otherwise would pass to them from a decedent or decedent’s estate

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14
Q

Disclaimer Requirements

A

(1) in writing
(2) irrevocable
(2) filed within 9 months of decedent’s death

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15
Q

Advancement Requirements

A

(a) Decedent declared their intent to make the gift an advancement in a contemporaneous writing; OR
(b) Beneficiary/heir acknowledged the gift to be an advancement in writing

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16
Q

Will Requirements

A

(1) In writing
(2) Signed by testator
(3) Signed by at least two witnesses

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17
Q

Will Validity Requirements

A

(1) Capacity
(2) Testamentary Intent

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18
Q

Testamentary Capacity

A

(1) 18 or older
(2) Mental Capacity – must understand:
(a) the nature of act
(b) nature and extent of property
(c) persons who are the natural object bounty
(d) nature of disposition

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19
Q

Testamentary Intent

A

Testator must intend that the instrument operates as a will

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20
Q

Interested Witnesses Majority Rule

A

Where a witness stands the benefit under the will, the majority rule is that the wil is valid but the gift to the witness-beneficiary is void

Exceptions
(a) There are two other witnesses who are disinterested
(b) Interested witness would take if there was no will

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21
Q

Interested Witnesses UPC Rule

A

Presence of interested witness does not invalidate a will or any part of it

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22
Q

Codicil

A

An amendment, modification, or alteration to a previously executed will

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23
Q

Codicil Requirements

A

(1) Writing
(2) Signed by testator
(3) In the presence of 2 witnesses

24
Q

Holographic Will

A

Handwritten unwitnessed will

Replaces and revokes any prior valid will

25
Q

Holographic Will Requirements

A

(1) Be in testator’s handwriting
(2) Be signed
(3) Reflect testator’s intent to make a will

26
Q

Integration

A

Part of a will gets separated

27
Q

Integration Test

A

Document will be integrated into will if:
(1) document was physically present at the time of the will’s execution
(2) Testator intended the document to be part of the will

28
Q

Incorporation by Reference

A

Document will be incorporated by reference where:
(1) The will manifests testator’s intent to incorporate the document
(2) The will sufficiently describes the document such that it can be authenticated
(3) The document must be in existence at the time the will is executed

29
Q

Revocation by written instrument

A

(1) Intent to revoke
(2) Instrument revoking the will is made with the same formalities required for will execution

30
Q

Revocation by physical act

A

Testator must intent to revoke at time of physical act

31
Q

Revocation by proxy (physical act)

A

A person other than testator may revoke a will by physical act if done at testator’s direction and in testator’s presence

32
Q

Partial Revocation

A

Where marks found on a will known to have last been in testator’s possession, a presumption is created that marks were made by testator with the requisite intent to revoke

33
Q

Revocation by Law

A

Marriage –> no effect on existing will in most states
Divorce –> revokes all bequests made to former spouse and rest remains valid

34
Q

Revival of Revoked Wills

A

Where will is revoked and revoking instrument is subsequently revoked, original will is presumptively revived

35
Q

Revival of Revoked Will Exception

A

Revoked will is not revived if testator’s statements or other evidence make clear she did not intent to revive the prior will

36
Q

Dependent Relative Revocation

A

Court will apply and revive the revoked will if doing so would come closer to giving effect to what testator tried, but failed, to do than would intestate succession

37
Q

Dependent Relative Revocation Requirements

A

(1) revocation was premised on some mistake of law or fact
(2) revocation would not have occurred absent testator’s mistaken belief that some other plan for disposition of property was valid
(3) the originally revoked will is closer to testator’s preference than would be intestate succession

38
Q

Anti- Lapse Statutes

A

A gift that would otherwise lapse vests in the predeceased beneficiary’s descendants

39
Q

Ademption

A

Gift of specific property in a will fails if it is no longer in the testator’s estate at death

40
Q

Ademption Exception

A

Adepmed gift may be saved if evidence establishes that ademption would be inconsistent with testator’s intent

Beneficiary gets monetary value of the specific bequest or gets property that was acquired as a replacement for the adeemed gift

41
Q

Abatement

A

Where an estate’s value is insufficient to pay its obligations and provide for disposition of property under a will, it must reduce gifts in order to pay the obligations and satisfy bequests and devises

42
Q

Undue Influence Requirements

A

Will contestant has burden of proof and must show
(1) Influence was exerted on testator
(2) Testator’s mind and free will were overpowered
(3) Testator’s will would not have been executed absent undue influence

43
Q

Presumption of Undue Influence arises if:

A

(1) Confidential relationship existed between testator and beneficiary
(2) Beneficiary participated to a significant degree in executing, drafting, or procuring testator’s will

44
Q

Fraud Requirements

A

(1) Testator has been intentionally deceived as to
(a) character or content of the will or its provisions; AND/OR
(b) Facts extrinsic to the will that would induce the will or a particular provision or disposition in the will
(2) Testator acted in reliance on the misrepresentation

45
Q

Inter vivos gift

A

Gift given by a living person to another living person

Requirements - intent, delivery, and acceptance

46
Q

Revocability of a Trust

A

Generally revocable unless the terms expressly state the trust is irrevocable

47
Q

Trust

A

Fiduciary relationship in which one party holds legal title to property for the benefit of designated beneficiaries.

48
Q

Types of Trusts

A

(1) Express Trusts
(2) Resulting Trust – implied or imposed by law
(3) Constructive Trust – equitable remedy used in cases to rectify unjust enrichment or wrongful conduct

49
Q

Express Private Trust Elements

A

(1) Settlor with capacity to convey
(2) Settlor has clear present intent to create a trust relationship
(3) Competent trustee with duties
(4) Definite beneficiary
(5) Present and clear disposition of settlor’s specific property in trust
(6) Valid trust purpose

50
Q

Inter Vivos Trust Creation

A

(1) Transfer of property
(2) Declaration of Trust

51
Q

Testamentary Trust

A

Trust created by will

52
Q

Pour over provisions

A

Provision in a will that devises property to a previously existing trust

53
Q

Duties of Trustee

A

(1) Duty to administer
(2) Duty of loyalty
(3) Duty to report
(4) Duty to separate trust property and keep records
(5) Duty to enforce claims and defend trust
(6) Duty to preserve property and make it productive

54
Q

Spendthrift Trust

A

Prohibits beneficiaries from transferring their interests in the trust, either voluntarily or involuntarily

55
Q

Cy Pres Doctrine for Charitable Trusts

A

Allows courts to modify terms of charitable trust to as near as possible as settlor’s original intention

MEE (3 decks)

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