Trusts & Estates Flashcards
duty of loyalty (trustee)
- duty of utmost loyalty and good faith to benes in obligations
- prohibited from self-dealing in any manner, even in good faith, with trust assets
- precluded from obtaining personal benefit other than fees
duty of care (trustee)
- must exercise care in admin of trust
- degree of care, skill, and prudence as reasonably prudent businessperson wrt own affairs & property
- reasonable steps to protect and preserve the trust estate
- obtain necessary insurance
duty to administer trust according to applicable law (trustee)
- administer trust according to applicable law
- uniform principal and income act: all ordinary expenses (incl repairs) allocated to trust income
- extraordinary repairs allocated to principal
what is an “extraordinary repair” (trusts)
one necessitated by an unusual or unforeseen occurrence beyond usual or regular kind
when & why does a testator need testamentary intent
- when making a will
- to validate a will
meaning of “testamentary intent” for will validation
document intended to dictate distribution of t’s property post-death
how does a court determine testamentary intent
- examining document
- testator’s words and actions
- circumstances of will’s execution
when is testamentary capacity needed
when creating a will (i.e, at execution)
how old do you need to be to have testamentary capacity
18 or older
what does t need an awareness of to have testamentary capacity
expected heirs (natural objects of bounty)
what does t need to understand and comprehend to have testamentary capacity?
- property’s full extent
- legal implications of creating a will
attested will
a formal attested will needs testamentary intent and capacity from the testator, and must adhere to statutory formalities: be in writing, signed by the testator, acknowledged by the testator in the presence of at least two witnesses who sign the document during the testator’s lifetime, and recognized by the witnesses as the testator’s will.
holographic will
under the UPC, a holographic will or codicil, a handwritten and unattested will, may be considered valid, even if not traditionally witnessed, as long as the signature and the material provisions are in the testator’s handwriting. the testator’s testamentary intent and capacity are also required.
revocation by subsequent instrument
a will can be partially or fully revoked by a subsequent will, a codicil, or by implication. revoking instruments, such as a codicil or holographic will, must follow the original will’s formalities during execution.
