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wills and trusts > W&T > Flashcards

W&T Flashcards

1
Q

per stirpes

A

property distributed divided into as many equal shares as there are living children and to issue of predeceased child by right of representation

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2
Q

valid formal will?

A

1) testamentary intent
2) signature
3) Witnesses

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3
Q

holographic will

A

1) material provisions in T’s handwriting
2) signature
3) date

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4
Q

preprinted will

A

Preprinted portions not necessary to establish validity

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5
Q

capacity

A

1) 18 years or older

2) of sound mind

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6
Q

of sound mind

A

need facts that show under influence during writing/signing the will

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7
Q

Dependent Relative Revocation

DRR

A

the revocation of will 1 was dependent on validity of will 2, then will 1 revived. Courts look for a repeated purpose (wills essentially the same in purpose). will 2 fine tuned the first will

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8
Q

omitted child

A

law presumes that the decedent unintentionally omitted children

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9
Q

Reestablishing revoked will §6123

A

all prior wills stay revoked unless revocation of will 2 was done with express intent to revive will 1. need clear and convincing evidence to prove this

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10
Q

codicil

A

supplement or amendment to the will

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11
Q

C adopts D

A

D becomes C’s heir at law/ issue

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12
Q

holographic will

A

all material provisions in T’s handwriting

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13
Q

T dies intestate with 3 children

A

distribution is equally to her children

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14
Q

will/ last will and testament

A

lawful voluntary disposition of assets upon death.

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15
Q

testator

A

male on who makes a will

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16
Q

testatrix

A

female one who makes will

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17
Q

devise

A

real property

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18
Q

bequest

A

only applied to personal property (boat)

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19
Q

legacy

A

gift of money

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20
Q

any form of property passing under a will

A

no longer a distinction as to what type of property

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21
Q

heirs at law

A

persons designated by statute as being next in line to inherit

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22
Q

beneficiary

A

persons designated by the will to inherit

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23
Q

issue

A

lineal decedents of the decedent- children, great grandchildren

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24
Q

dying intestate

A

dying without a will or trust or without a valid will or trust. In this case the rules of intestacy govern how the decedent’s property is distributed.

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25
Q

does decedent have surviving spouse?

A

legal spouse/ registered domestic partner - if so intestacy rules apply. If dies without a surviving spouse then there is no CP it is separate property (SP go equally to decedent’s children or issue of those children)

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26
Q

what is characterization of the property that the decedent left behind?

A

if CP then surviving spouse gets decedent’s 1/2 interests in the CP and maintain their own 1/2 interest

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27
Q

Property subject to Intestacy Provisions:

A

any part of estate of decedent not effectively disposed of by will passes to decedent’s heirs

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28
Q

no children

A

parents, then siblings, then nieces and nephews (none exist - goes to spouse)

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29
Q

separate property: intestate share of the surviving spouse or RDP is

A

entire estate if decedent did not leave any surviving issue, parent, brother, sister or issue of a deceased bro/sis
OR
1/2 of intestate estate if decedent leaves a child or issue of deceased child
OR
leaves no issue but leaves a parent or parents or their issue or the issue of either of them

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30
Q

no surviving spouse

A

all to children or issue

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31
Q

no surviving spouse, or children

A

surviving parents, issue of parents, surviving gp, issue of gp, issue of predeceased spouse, other surviving relative of decedent, surviving parent of predeceased spouse, issue of parents of predeceased spouse

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32
Q

child predeceased

A

share divides evenly among their issue

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33
Q

mother filed an appeal to deny father being heir based on equitable priniciples

A

intestate heirs cannot be disinherited based on those circumstances.

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34
Q

Look back rule

A

if no spouse or issue

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35
Q

Valid will?

Holographic

A
  1. testamentary intent
  2. material dispositive provisions (i leave)
  3. signed
  4. dated
  5. no witnesses needed
36
Q

divorce

A

revocation by operation of law upon divorce

37
Q

Grandchildren

A

take under intestacy as lineal descendants of T through their predeceased parent who is T’s son.

38
Q

adopted child

A

legal heir as an adopted child

adult adoptions okay in CA

39
Q

Omitted

A

CA identifies omitted spouse or children only not grandchildren

40
Q

Ex-spouse

A

does not take under intestacy

41
Q

gift

A

revoked by operation of law

42
Q

will invalid

A

assets go by intestacy

43
Q

intestacy

A

statutory distribution to heirs according to law when no will.

44
Q

survivorship period

A

statutory time period must survive is 120 hrs

45
Q

exception to revive prior will

A

express intent that the reason for revoking 3 was to revive number 2 does not automatically revive.

46
Q

joint will

A

two wills one doc.

47
Q

reciprocal wills

A

do they also include an expectation of being contractually bound to those mirror wills
No

48
Q

republication by codicil

A

codicil can revoke
or could say revoke paragraph 5.
in timeline create a will have a life event

49
Q

codicil

A

republish the will

50
Q

make statement want and don’t want

A

has the effect of adding second date to the will - reaffirmation/republication

51
Q

Stoker

A

hereby revoke my trust as of Aug. 28, 2005.
Statement of revocation
how do you do a codicil to a doc. that legally doesn’t exist
- intent of revival

52
Q

Codicil okay when

A

can revive by codicil a will that has been revoked

53
Q

codicil not okay when

A

cannot revive a will that has been destroyed by obliteration

54
Q

thompson case

A

sign statement on back of manuscript cover - can read it not revoked

55
Q

can read between the lines of the revocation

A

can be revived after being revoked because not physically destroyed

56
Q

Incorporation by Reference

A
  1. Writing in existence when will is executed
  2. intent to incorporate
  3. sufficient description to identify the writing
    - cannot incorporate documents into intestacy
    - documents that came into existence after the will was already drawn up cannot be incorporated by reference.
    - Codicils can also incorporate by reference documents that existed prior to the codicils existence
57
Q

Trusts

A

put not your trust in money, but put your money in trusts - oliver wendel holmes

58
Q

will

A

who gets what, then administrator of estate or instructor of will carry out in terms of intestacy or california state law. Testamentary documents.

59
Q

trusts

A

document goes beyond the scope of the will.

  • education funds to children
  • donations
  • either upon death of testator
  • testator devises to trustees for certain purposes.
60
Q

executor

A

under will

61
Q

administrator

A

intestacy

62
Q

Trustee

A

trust - takes legal title to the assets (bare legal title) oversee the trust and use the assets in accordance with what the trust says to do.

63
Q

legal title

A

…..

64
Q

beneficial ownership

A

equitable title

65
Q

beneficiaries

A

hold beneficial/equitable ownership interest. can’t help themselves but have a right to the asset.

66
Q

bifurcation of title

A

put asset into trust - give trustee legal title- beneficial title resides with the people named in the trust to receive the benefit

67
Q

can’t do under the will - different categories of beneficiaries

A

son gets money from the income from the trust/ income only from municipal bond for 5 years. after 5 years distribute bond equally between children.

68
Q

gift

A

upon death give everything to son and hold 100k and give to grandchildren. then whomever pick as remainder beneficiary. different things going on at the same time. (different entitlements)

69
Q

life estate/ term of years

A

remainder. not like residual beneficiaries under a will. Remainder gets a longer wait because have to wait for expiration of a life estate.

70
Q

vested in inheritance share

A

delayed distributions/ sprinkling provisions - make sure clear where the vesting will occur.

71
Q

1854 will - trust built into the will

A

that trust doesn’t come into being until testator passes

72
Q

living trust/ irrevocable inter vivos trust

A

put in place right now, need trustee. Don’t pay yourself a trustee fee or owe income taxes on your own money.

73
Q

ma pa trustees/ beneficiaries

A

trustors/ trustees/ beneficiaries

74
Q

merger

A

trustees same as beneficiaries/ never get transfer a title. sever joint tenancy deeding property already own in one fashion in another title setup
ma pa transfer legal title from themselves
- you can’t transfer ownership from ma pa as trustees and beneficiaries no transfer of interest and no bifurcation of title. because then no trust would exist.
mergeer prevents us from having them in all three categories

75
Q

exception to doctrine of merger in CA

A

LE

76
Q

as long as beneficiaries

A

ma and pa have life estate. during your life time all these assets in trust are in that trust for you. no doctrine of merger problem because you are only getting LE. Remainder distribution to others.

77
Q

express statement of creation of a trust

A

Probate code 15200: establish express trust (inter vivos or testamentary)
- declaration by testator - declare this to be a trust
-

78
Q

tetamentary trust

A

trust created under a will

79
Q

standa alone entity during the life

A

inter vivos

80
Q

testamentary transfer

A

trust built into the will
or
who was to receive the assets of his estate/ not his kids his trust (pour over will) pour over assets from estate into trust (form of testamentary transfer)

81
Q

living trust

A

inter vivos already operational

82
Q

pour over will

A

the will was supposed to transfer any assets that weren’t already in his trust (michael jackson) present transfer of assets into trust. and testamentary transfer catch anything not already in the trust

83
Q

exercises of powers of appointment

A

see class 21

84
Q

enforceable promies

A

someone promises and it is enforceable there is consideration paid then bring in terms of contract to establish the existence of the trust. Iowa 2006 case - mom dated home to herself and daughter as joint tenant (gift taxes paid) outcome when mom dies - deed showed presumption of right of survivorship. transfer from mom to ma and daughter as joint tenants. delivered letter to children that when property was sold after her death by her daughter, that the proceeds divided equally among the children. siblings say mom created a trust. daughter is trustee. Bc the letter signed in conjunction with recording of the deed satisfied SOF and determined to be a trust.

85
Q

right of survivorship

A

rebuttable presumption - clear evidence of what mom intended. how big of gap?

wills and trusts (4 decks)

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