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UBE > Trusts, Wills, Estates > Flashcards

Trusts, Wills, Estates Flashcards

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1
Q

What is a nonprobate property

A

Property that does not pass through probate and is not governed by will or intestacy

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2
Q

What is probate?

A

a judicial process of administering a dead person’s estate

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3
Q

what is inter vivos gift

A

gift given while alive

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4
Q

what law governs distributions?

A

Real property - law of state where real property is situated
Personal property - law of state of death
In marriage – law of state where the property was acquired

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5
Q

Requirements for a valid attested will

A
  1. in writting
  2. intent
  3. signed by the testator at the end
  4. two attesting witnesses
  5. testator sign the will in each of the witnesses’ presence
  6. the witnesses sign in testator’s presence
    in UPC, can use 1 notary instead of 2 witnesses.
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6
Q

Can an interested witness attest to a will?

A

CL - will is invlaid
modern view – will is valid but witness’s bequest may be void
UPC - totally normal and valid

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7
Q

3 types of wills

A

Execution or attested will
Holographic wills
Oral wills

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8
Q

exceptions to interested witnesses?

A

creditors
fudiciaries (trusties)
attorneys

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9
Q

Requirements for a valid holographic will

A

Must be in handwriting. (or at least all material parts)
Signed (anywhere)
Witnesses needed in 50% of states.
Can be modified later

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10
Q

2 Exceptions to wills being signed?

A

proxy signature (at a direction of the testator)
signature on self-proving affidavit

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11
Q

What is a Devise?

A

gift of real property

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12
Q

What is a Bequest?

A

gift of personal property
Specific bequest - property easily identifiable

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13
Q

What is Legacy?

A

gift of personal property not sufficiently described (usually money)
Demonstrative legacy - an amount paid from identifiable source

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14
Q

What is ademption

A

When gift fails because property is no longer in testator’s estate

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15
Q

What is advancement?

A

A gift for life that with intent that gift be applied as a share of inheritance

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16
Q

Ademption by satisfaction

A

a gift inter vivos with intent to satisfy part or a whole of a testamentary gift (legacy more often).

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17
Q

What is the purpose of anti-lapse statute

A

Allows the gift to go to the descendants of the beneficiary if the beneficiary predeceased the testator. But only applies to relatives

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18
Q

What is a codicil?

A

An amendment to an existing will (must be executed with same formalities)

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19
Q

What is an intergration requirement?

A

the person probating the will must be able to show that all pages are the same.
Clip together, page numbering, no blanks, initial each page, same font.

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20
Q

What are reciprocal or mutual wills

A

separate wills with similar language.

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21
Q

3 types of will revocations

A

By operation of law
by physical act
by subsequent writing

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22
Q

What effect of a marriage after will execution?

A

Most states - no effect
UPC - spouse may receive intestate share unless clear evidence of intentional omission from will

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23
Q

What is a revival?

A

Revival is a 3rd document that revokes 2nd document that revoked 1st will.
3 approaches: valid; invalid; intent

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24
Q

What is an implied conditional revocation

A

Implied revocation of will 1 if will 2 is executed with contradicting terms and without explicit Claude revoking will 1.
If will 2 is invalid, will 1 will be presumed to be valid

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25
Q

What is a pretermitted child statute?

A

A statute that allows a child (born after death) to inherent a share unless 1)omission was intentional OR the
2) entire state is left to pretermitted child’s parent OR
3) testator provided for pretermitted child

26
Q

What are the elements of undue influence?

A

the influence was exerted
such that overpowered the mind and free will
causation

27
Q

When does presumption of undue influence exist?

A

Confidential relationships between testator and a beneficiary; AND
Beneficiary was involved in drafting or execution
Some states require unusual disposition of property

28
Q

Elements of Fraud

A

false representaition
knowledge of falsity
Reasonable reliance
Causation

29
Q

Rights and duties of a trustee?

A

The trustee holds a legal title to the property and owes fiduciary duties to beneficiaries

30
Q

Who is a beneficiary?

A

The beneficiary holds equitable title

31
Q

Who is a settlor?

A

The settlor creates the trust (a.k.a. trustor; grantor; donor).

32
Q

What are the 5 elements of trust validity?

A

1) intent
2) identifiable corpus (property that is actually conveyed!!)
3) ascertainable beneficiaries
4) proper purpose
5) compliance with mechanics and formalities

33
Q

What are the types of trusts

A

inter vivos:
1) declaration of trust: settlor and trustee are same person
2) transfer or conveyance in trust: settlor transfers legal title to X
Testamentary trust
1) By valid will

34
Q

How to convey a property to set up a trust

A

real estate – must convey a deed (even from S to S if S is also a T)
tangible property – physical conveyance
other property - place out of the S’s legal control

35
Q

Is beneficiary’s interest freely transferable?

A

Yes, unless restricted by statute or law.
NOTE: if trustee has discretion as to how much to give beneficiary, beneficiary only have hopes of getting money, thus cannot transfer (but child support can reach the money, maybe even tort victims)

36
Q

What is a spendthrift trust?

A

precludes beneficiaries from selling or giving away their interest in the trust.
Purpose: creditors can’t get to it.
Minority of states allow self-settled spendthrift trusts

37
Q

Can the settlor revoke or modify the trust?

A

Yes, unless trust instrument expressly restricts it

38
Q

Multiple trustees must exercise their trust powers

A

by majority vote

39
Q

what is a duty of loyalty?

A

prohibition on self-dealing

40
Q

What are trustee’s duties?

A

duty to act in good faith
duty of loyalty
duty to keep records
duty to render accounting
duty to not commingle property (label property and keep it separate)
prudent investor rule

41
Q

Damages recoverable for breach

A

lost profits
depreciation of trust property
trustee’s profits from breach

42
Q

Defenses to breach

A

reasonably relied on terms of trust; or
beneficiaries consented
settlor consented
exculpatory clause relieves trustee from liability (generally, exculpate only negligent conduct)

43
Q

Is trustee personal liable to 3rd parties?

A

Yes, they will be personally liable for contracts they sign (unless contract exculpates them)
In any event, trustee can sue for indemnification

44
Q

Can a beneficiary sue 3rd party for damaging trust property?

A

No. Beneficiary may only sue trustee to compel trustee to sue the 3rd party

45
Q

Is trustee liable for its agent’s conduct?

A

No, no vicarious liability.
But, can sue on a claim of negligent hiring

46
Q

What is adjustment power?

A

allows a trustee to adjust between principal and income to further the settlor’s intent.

47
Q

What is the difference between income and principal

A

money from selling assets, insurance policy, stock – principal.
rent, dividend, interest – income
“wasting assets” e.g. natural resources –10% income, 90% principal

48
Q

What is a Cy Pre Doctrine

A

equatible doctrine that allows court to select alternative charitable purpose “as near as possible” when the original purpose is frustrated

49
Q

Who can enforce a charitable trust

A

State attorney general have a power to enforce charitable trusts

50
Q

Does the rule against perputities apply to trusts?

A

Yes, but not to charitable trusts.

51
Q

what is a honorary or purpose trust

A

A trust not to a human being and not for charitable purpose

52
Q

what is a resulting trust?

A

arise by implication from settlor’s conduct. Usually when the trust is invalid or its purpose has been exhausted.
Benefit goes ONLY to settlor or its heirs

53
Q

what is a constructive trust?

A

It is an equitable remedy to prevent unjust enrichment resulting from:
1) wrongful conduct
2) abuse of confidential relationships
3) breach of promise

54
Q

what is a slayer statute

A

A slayer (killer) cannot get property from trust

55
Q

Is trust a separate legal entity?

A

No. cannot be sued or sue

56
Q

Who can terminate a trust?

A
  1. if the trust purposes are accomplished, illegal or impossible to carry out
  2. if all beneficiaries consent and it does not interfere with a material purpose of the trust
57
Q

What is a Classic per stirpes method of computing intestate shares?

A
58
Q

What is a Per Capita with Representation method of computing intestate shares?

A

Majority rule - the property is divided into equal shares at the first generational level at which there are living takers

59
Q
A
60
Q

Tucker executed a will provided for his wife and his step child. 5 years later they divorced. 5 years later Tucker died. Under CL, is step child going to inherit?

A

Yes, under CL, divorce only voids the ex-spouse’s rights in the will.
Some states adopted a statute (UPC) that voids beneficiary rights of ex-spouse’s relatives.

61
Q

What is a Per Capita at Each Generational Level method of computing intestate shares?

A

Modern Trend – under UPC, shares are combined and divided equally at all levels with living takers.

UBE (13 decks)

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