Trusts and Wills Flashcards
A holographic will is…
In the testator’s handwriting, signed by the testator, and does not need to be witnessed.
What is the relationship between a life insurance beneficiary and a will?
A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the estate as beneficiary. Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract.
How does a will properly incorporate by reference another writing?
(i) it existed at the time the will was executed; (ii) the testator intended the writing to be incorporated; and (iii) the writing is described in the will with sufficient certainty so as to permit its identification.
How does an antilapse statute operate?
Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.
What is the order of abatement for gifts by will?
If not otherwise specified in the will, gifts are abated in the following order: (i) intestate property; (ii) residuary bequests; (iii) general bequests; and then (iv) specific bequests. Abatement within each category is pro rata.
How much does an omitted spouse get under the UPC
Up to 50% of the augmented estate
Under what method of calculating shares is the estate split at the first generational level, then split among the first surviving issue within each branch?
Per stirpes
What’s the most common remedy for fraud in a will?
A constructive trust
Can a trust provision restrain a first marriage
No. However, a restraint on marriage might be possible if the purpose of the trust is merely to provide support for a B while the B is single.
What are the standards regarding a self-interested transaction by the T?
When self-
dealing is established, an irrebuttable presumption is created that the trustee breached the duty of
loyalty. No further inquiry into the trustee’s reasonableness or good faith will be required, because self-
dealing is a per se breach of the duty of loyalty. When the duty of loyalty is breached, any beneficiary
has standing against the trustee if his interests are violated, and he can choose either to set aside the
transaction or to ratify the transaction and recover any profits therefrom.
How is the T’s duty of prudent investment evaluated?
In assessing whether a trustee has
breached this duty, the UPIA requires consideration of numerous factors, including (i) the distribution
requirements of the trust, (ii) the general economic conditions, (iii) the role that the investment plays in
relationship to the trust’s overall investment portfolio, and (iv) the trust’s need for liquidity, regularity of
income, and preservation or appreciation of capital.
What is the UPAIA approach to distribution to income and principal beneficiaries?
A trustee is empowered to re-characterize items and reallocate investment returns as he deems necessary to fulfill the trust purposes, as long as his allocations are reasonable and are in keeping with the trust instrument. A distribution of stock is treated as a distribution of principal under the UPAIA.
