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Trusts and Estates > Vocab > Flashcards

Vocab Flashcards

1
Q

Parentellic

A

First to grandparents and their descendants, then to great-grandparents and their descendants, etc.

UPC limits to two generations because of the laughing heirs problem.

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2
Q

Degree of Relationship (MA System)

A

Count up to ancestor, then down to taker to determine the degree of relationship.

Parentellic tiebreaker: if there are two people with the same degree of relationship, person with the closest parentella wins.

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3
Q

Impact of Adoption (UPC)

A

Adopted individuals is the child of adopting parent for all purposes, not of natural parents, but adoption of child by spouse of natural parent has no effect on (1) the relationship between child and natural parents (2) right of child/descendant of child to inherit from or through the other natural parent

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4
Q

Adult Adoption

A

UPC: excludes person adopted after reaching the age of 18 from a class gift to adoptive parent’s children, issue, descendants, heirs by someone other than the adoptive parent unless the adoptive parent was adoptee’s step/foster parent, or the adoptive parent functioned as a parent of the adoptee before the age of 18.

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5
Q

Principle of Equitable Adoption

A

Because a child and parent behave as and do all of the things that parent and child should do, they should be recognized as such under the law.

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6
Q

Unmarried Parents (Old Rule vs. Modern Rule)

A

Old rule: children are of the mother but not necessarily of the father.

Modern rule: paternity can be established by subsequent marriage of parents, acknowledgment of father, or clear and convincing evidence of paternity.

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7
Q

Posthumous Children (common law vs. modern rule)

A

treated same as if born during life if proven

common law: inspect mom to see if she was pregnant when dad died

modern: if child born within 280 days of husband’s death, presumed to be child of husband

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8
Q

Posthumously Conceived Children (MA rule)

A

if child is born within reasonable amount of time and if father intended for sperm to be used after death, then we will consider them issue of father for purposes of intestacy

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9
Q

Doctrine of Advancement (common law vs. modern)

A

common law: all lifetime gifts were intended to be advancements, therefore reducing the share of what the child would take under intestacy

modern: lifetime gifts not treated as advancements unless there is a writing that states that it should be

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10
Q

Hotchpot

A
  1. put all estate assets and intervivos gifts into hotchpot
  2. divide amongst heirs
  3. subtract advancement from recipient’s share
  4. distribute shares - even if recipient’s share is “negative” after subtracting, the don’t owe $ to other heirs
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11
Q

Guardian (of person)

A

can be appointed for minor - if you provide for it in a will, treated as a recommendation by the court

responsible for everything not financial (home, etc.)

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12
Q

Guardianship (for money)

A

given responsibility to hang on to principal until minor reach 18 - have to go to court to access

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13
Q

Conservatorships

A

same as guardianship, but more control to conservator to manage money on behalf of minor

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14
Q

Custodianship

A

A as custodian for B under the [state] [UTMA/UGMA]

UTMA: property outright to child @ 21
UGMA: property outright to child @ 18

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15
Q

Slayer Rule (3 possible approaches)

A

Rule: if you cause the death of the decedent, then you can’t inherit from them

Options:

  1. some states don’t apply
  2. slayer denied legal title
  3. slayer get property in constructive trust - goes to next taker
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16
Q

Disclaimer

A

When someone is given an inheritance that they don’t want

Policy: avoid creditors, want it to just go to kids, personal relationship with testator

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17
Q

Duties to Intended Beneficiaries

A

Rule: beneficiary can sue lawyer for failing to capture T’s intent

Rule: you have a duty of reasonable care to the intended will beneficiaries

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18
Q

Conflicts of Interest

A

Rules:

  1. disclose to client that you are repping other family
  2. get everyone to sign informed consent in writing that you won’t keep confidence
  3. withdraw if actual conflict comes up
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19
Q

Cautionary/Ritual Function

A

ensure that T knows that they are creating a legally binding document, have time to reflect

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20
Q

Evidentiary Function

A

need more than just someone’s word to determine what T wanted; signature and attestation

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21
Q

Protective Function

A

get witnesses to ensure that what is being done is of T’s free will

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22
Q

Chanelling Function

A

standardized format, allows for efficiency, keeps out a lot of documents/evidence that would make it hard to determine what a formal will is

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23
Q

Formal Will Requirements

A
  1. writing
  2. signature
  3. attestation by 2 witnesses
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24
Q

Strict Compliance with Will Requirements

A

although it may be clear that the will expresses true intent of T, some courts will refuse to give it effect if it fails to meet formalities

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25
Q

UPC Relaxation of Will Formalities

A
  1. both witnesses don’t have to be present at same time
  2. allows notary instead of witnesses (not widely adopted)
  3. witnesses don’t have to sign immediately
  4. witnesses don’t have to be disinterested
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26
Q

Line of Sight Test

A

the person signing and the document being signed must be in witness’ line of sight

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27
Q

Conscious Presence Test

A

witness was there and knows what is going on

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28
Q

Self-Proving Affidavit

A

separate document signed by the testator and witnesses and notarized - can be used in lieu of testimony from witnesses during probate process

says the same thing as attestation clause in a will, just in past tense

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29
Q

Substantial Compliance

A

Judicial doctrine where courts accept a will without all formal requirements if

  1. the T intended the instrument to be their will
  2. whether the document substantially complies with will act requirements
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30
Q

Harmless Error/Dispensing Power

A

legislative doctrine that allows courts to dispense with formal requirements of a will if they determine that the mistake is a harmless error

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31
Q

Holographic Will Requirements (3 Versions)

A

Requirements:

  1. writing
  2. signed by T
  3. reflects testamentary intent

3 Versions:

  1. entirely in T’s handwriting
  2. material portion of T’s handwriting (scissors approach)
  3. material portions with extrinsic evidence - read handwritten portions in the context of typed portions
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32
Q

3 Ways to Revoke Will

A
  1. by writing that meets all requirements of a will
  2. by physical act that (1) meets requirements of statute (2) is done with the intention of revoking the will
  3. partial revocation
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33
Q

Dependent Relevant Revocation

A

if T undertakes to revoke her will upon a mistaken assumption of fact or law, under doctrine of DDR, the revocation is ineffective if T would not have revoked the will but for the mistaken belief

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34
Q

Doctrine of Revoked Will (Minority vs. Majority)

A

If T has one will, executes will 2, revokes will 2, then dies, what happens?

Majority: will 1 is revived without re-execution if T intends it to be
Minority: will 1 cannot be revived without re-execution

35
Q

Revocation by Operation of Law - Divorce

A

statutes provide that a divorce presumptively revokes any provision in a will for decedent’s divorced spouse

36
Q

Revocation by Operation of Law - Marriage

A

marriage doesn’t revoke a will created before marriage, but surviving spouse is allowed to take their intestate share before the rest of the estate plan is followed

37
Q

Revocation by Operation of Law - Children

A

minority: marriage followed by birth revokes will executed before marriage
majority: pretermitted child statutes give child born after execution of will a share in parent’s estate

38
Q

Revival (majority vs. minority)

A

Majority: T executes will 1, T executes will 2, T revokes will 2, will 1 is revived automatically

Minority: revoked will cannot be revived unless re-executed with formalities or republished

39
Q

Integration of a Will

A

all papers that are present at the time of execution and are intended to be part of the will are treated as part of the will

40
Q

Republication by Codicil

A

once you have written a codicil to a will, the will to which you have written the codicil is revived, republished, given effect

41
Q

Incorporation by Reference (incl. UPC version)

A

Allows for writing that was in existence but not present at the time of execution and that was not itself executed with testamentary formalities to be absorbed into T’s will.

4 Requirements: (1) writing (2) in existence at time of execution (3) language in will describing an intent to incorporate (4) writing described sufficiently to permit identification

UPC: doctrine applies if the language of the will manifests this intent and describes the writing sufficiently to permit identification

42
Q

Acts of Independent Significance

A

if beneficiary or property designations are identified by reference to acts/events that have a lifetime motive and significance apart from their effect on the will, the gift will be upheld under the doctrine of acts of independent significance

43
Q

Mental Capacity

A

Requirements: (1) nature and extent of their property (2) natural objects of their bounty (3) the disposition they are making (4) how these fit together to form an orderly disposition they are making

44
Q

Insane Delusion

A

Requirements: (1) holds a belief contrary to all evidence (2) no moving them from that belief (3) the belief causes them to write a will based on it

45
Q

Undue Influence

A

Requirements: (1) testator is susceptible to undue influence (2) alleged undue influencer/beneficiary had the opportunity to exert undue influence (3) unnatural will showing the effect of the undue influence

Opportunity to exert undue influence usually means that a confidential relationship existed - dependence and reliance on an unworthy person is what drives the doctrine

46
Q

Anti-Mortem Probate

A

Allows T to go through probate during lifetime to ensure that intent is carried out

47
Q

Fraud (in inducement or in execution)

A

in inducement: intended to alter disposition, induce someone to make, revoke, or not make will based on a lie

in execution: lie about character of testamentary disposition - will itself is misrepresented to the T, signed but thought to be something different

Requirements: (1) misrepresentation (2) intent to deceive (3) purpose is to influence testator disposition

48
Q

Tortious Interference with Expectancy

A

Requirements: (1) expectancy (reason to think one would inherit) (2) intentional interference through tortious conduct (3) causation (4) damages

49
Q

Plain Meaning Rule

A

Words in a will are given their plain meaning - extrinsic evidence can only be admitted to resolve ambiguities, but plain meaning cannot be disturbed by extrinsic evidence

50
Q

No Reformation Rule

A

court can’t reform will to reflect T’s intent, even if there is a clear mistake - words written in will are only means to ascertain T’s intent

51
Q

Latent Ambiguity

A

multiple people or no one matches the exact language of a will, ambiguity not evident on face of will; traditional wills law will correct

52
Q

Patent Ambiguity

A

abiguity evident on fact of will - just by looking at it, you can tell there will be a problem carrying it out; traditional wills law will not allow courts to fix

53
Q

Openly Reforming Will for Mistake

A

sometimes courts will say that reformation is permissible if there is clear and convincing evidence showing T’s intent, there was a mistake at time of execution

54
Q

Common Law Lapse

A

if beneficiary predeceases T:

(1) see if will provides for this event
(2) if not provided for, and if a specific or general bequest, to the residuary
(3) if the residuary is also dead, passes by intestacy

55
Q

Anti-Lapse Statutes (majority vs. minority)

A

provide a substitute taker when beneficiary dies before T

majority: share goes to beneficiary’s children, limit applicability to beneficiaries who are T’s children
minority: share goes as provided for in a will, apply to anyone in a will or a broader range of descendants

Process: (1) look at will and follow if possible (2) if no, see if named beneficiary survived by issue and if beneficiary fits within anti-lapse statute (3) if no issue/not part of class, to residuary (4) if no residuary, intestacy

56
Q

Ademption by Extinction (common law vs. UPC)

A

common law: if it’s a specific bequest and T doesn’t have the thing when they die, property adeems and the beneficiary gets nothing (identity theory)

UPC: if a specifically devised item isn’t in an estate, beneficiary may nonetheless be entitled to replacement/cash value of original item, depending on whether B can show that it is what T would have wanted (intent theory)

57
Q

Satisfaction

A

if T intended an intervivos gift to be in satisfaction of what they get in will, they get nothing; if not, can still take upon death of T

58
Q

Exoneration of Liens

A

common law presumption is to pay off debts first, before distributing estate to beneficiaries, because that’s what T would have wanted

59
Q

Abatement

A

What happens when T has insufficient assets to pay off debts; abatements happens in order of: (1) creditors (2) disinherited spouse (3) residuary (4) general devisees (5) specific and demonstrative devisees (may be reduced pro rata)

60
Q

RIVT (characteristics and how to make it work)

A

Language: trustee is to hold property for settlor for life, upon S’s death, all to B. S is trustee. Trust is revocable.

How to make it work: transfer property to trust and put pourover provision in will - fund the trust to avoid probate. Name the trust as the beneficiary of any nonprobate property and assign personal property.

Creditors: can reach if trust is revocable or trustee has a general power of appointment

61
Q

Life Insurance

A

Policy used to insure against lost income of wage earner. Owner of policy gives small amount of $ each month, when owner dies insurance company gives lump sum to beneficiaries.

Cannot change beneficiary by writing in a will.

62
Q

Egelhoff v. Egelhoff

A

Can’t apply state statute to sever beneficiary’s right to take upon divorce because this is covered by ERISA - fed law preempts state.

UPC: all governing instruments that transfer wealth at death should be treated the same way a will would be, but this doesn’t always work because Egelhoff

63
Q

Multi Party Bank Accts (3 Types)

A
  1. POD: owned by A, payable on death to B
    during life: A is the only one with control
    at death: B gets control
  2. Agency acct: B as agency for A
    during life: A or B can access. B’s access must be for the benefit of A.
    at death: passes according to A’s estate plan
    during A’s incapacity: B’s agency terminates
  3. Joint tenancy: A + B as joint tenants
    during life: A + B both control
    at death: if A dies, B gets full control/ownership
64
Q

Durable Power of Atty

A

person authorizes someone to manage financial affairs if they become incapacitated - still have authority to act for themselves

65
Q

General Power of Appointment

A

ability to control property/ability to give to someone else; exercisable in favor of holder of power, holder’s creditors, estate, creditors of estate - treated as if donee/holder owns the property

66
Q

Non-general/Limited/Special Power of Appointment

A

not exercisable in favor of holder, holder’s creditors, estate, creditors of estate; treated as if holder does not own anything for tax purposes

67
Q

Community Property

A

all earnings during marriage are owned equally by the spouses - exceptions are gifts and inheritance; spouse entitled to 1/2 of community property when other spouse dies

68
Q

Separate Property

A

marriage has no effect on property ownership during marriage - each person owns their stuff

69
Q

MA Elective Share Statute

A

issue: 1/3 life estate, 25k outright
no issue but kindred: 1/2 life estate, 25k outright
no issue and no kindred (never happens): 25k plus 1/2 of rest outright

70
Q

UPC Elective Share Statute

A

surviving spouse is entitled to a share of augmented property (all of the probate and non-probate property of both the person who died and their spouse) based on length of marriage

rule: 15+ years married get 1/2
process: subtract property owned by surviving spouse from 1/2 of augmented estate, so if they already have money/are provided for, they get less

71
Q

Powers/Advantages of a Trust

A
  • avoid probate
  • avoid taxes
  • maintain control
  • avoid creditors
  • ensure responsible use by beneficiaries
  • protect land from certain uses
  • provide for minor children
  • share property amongst people
72
Q

Arguments in Favor of Freedom of Testation

A
  • allows for investment
  • encourages hard work
  • natural right
  • allows charitable bequests
  • control over children
  • incentivize kids to take care of parents
73
Q

Arguments Against Freedom of Testation

A
  • doesn’t encourage spending, hurts economy
  • lack of revenue for welfare system
  • avoid dynastic wealth
  • doesn’t protect kids
  • encourages litigation
  • parental control can be harmful/misguided
74
Q

Constitutional Right to Control Property After Death

A

legislature can limit, control, abolish testamentary disposition - only limit is can’t abolish BOTH devise (will) and descent (intestacy)

must be reasonable, constitutional, not contrary to public policy – these are reasons courts will override testamentary disposition

75
Q

Probate Property

A

property that has to go through court process to transfer after T dies

Process: executor or administrator mashals assets, pays creditors, distributes assets by terms of will or laws of intestacy

76
Q

Nonprobate Property

A

property that does not have to go through court process to transfer

Types: JT, trust, K with POD/TOD provision, life insurance, retirement plan, etc.

77
Q

Order of Intestacy

A
  1. spouse
  2. children/descendants/issue
  3. parents/ancestors
  4. collateral
  5. escheats to state
78
Q

Spousal Share Under Intestacy (UPC)

A
  1. spouse takes all if there are no children and no parents OR if all children are children of the relationship
  2. spouse takes almost all if surviving spouse has children not of the marriage OR if the decedent spouse has kids not of the marriage
  3. surviving spouse takes lump sum first if they don’t get everything - kids usually don’t get anything because threshold is high
79
Q

Uniform Simultaneous Death Act (2 modern rules)

A

2 rules:
1. sufficient evidence: if there is no sufficient evidence of order of death, each was deemed to have predeceased the other, so neither inherits from the other

  1. 120 rule: one spouse has to survive the other for 120 hours in order to inherit
80
Q

Common law simultaneous death rule

A

split second rule: problem is that it’s too hard to determine who died first in a plane/car accident, etc.

81
Q

Strict Per Stirpes/English System

A

divide at generation after decedent regardless of whether anyone is alive

82
Q

Per Capita at Each Generation (MA system)

A

initial division of shares is made at closest generation in which one or more descendants are alive, but the shares of deceased persons at that level are treated as one pot and dropped down equally among reps at the next generation

83
Q

Per Capita with Representation/Modern Per Stirpes

A

divide at first generation someone is alive

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