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BAR Prep > Wills and Trusts > Flashcards

Wills and Trusts Flashcards

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1
Q

Under Common Law, the surviving spouse took a

A

(wife) Dower - life estate in 1/3 of the real property

(husband) Curtesy - life estate in all wife’s real property if the couple had a child

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2
Q

Under modern law, the surviving spouse takes

A

A share according to who survived and what their share is

If descendants survive - most states provide 1/2 or 1/3, under UPC spouse takes it all if descendants are all from the surviving spouse and surviving spouse has no other descendants

If no descendants - entire estate to spouse, but in UPC states only if decedent not survived by parents

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3
Q

Methods of computing shares:

A

-Per Stirpes - proportional share per first gen child, passed down to any survivors

-Per Capita with Rep - proportional share to the first gen that has living survivors, then passed down to any survivors

-Per Capita at Each Gen - proportional share to the first gen that has living survivors, then remaining shares are combined and distributed equally (1/4 to A and B, 1/6 to C’s Kid 1 and 2 and D’s Kid 1)

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4
Q

Order of shares if no surviving spouse or descendants

A

-Parents
-Siblings/their descendants
-1/2 to paternal/maternal grandparents (or all to one if only survivor)
-1/2 to nearest kin on maternal/paternal (or all to one side if only survivors)
-If none of the above, to the state

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5
Q

Adoption by estoppel occurs when

A

A parent has legal custody of a child under an unfulfilled agreement to adopt them. Under this scenario, they are allowed to inherit, where normally stepchildren and foster children have no inheritance rights.

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6
Q

Advancement is ____ and requires _____ to be valid

A

A gift intended to be applied against share of inheritance

Clear intent to be an advancement (CL) or a contemporaneous writing by the donor acknowledged by the heir (UPC)

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7
Q

Effect of advancement (where found)

A

The heir’s share is diminished proportionally

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8
Q

To be effective, a disclaimer must

A

-signed writing
-irrevocable
-filed w/in 9 months of decedent’s death or beneficiary’s 21st birthday

(Disclaimer cannot occur if there has been any acceptance)

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9
Q

A slayer statute causes property to pass

A

Through the killer as if they had predeceased

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10
Q

A will’s validity and effect is based on the type of property:

A

Real property - where located
Personal property - T’s domicile at time of death

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11
Q

To be valid, a will must be made by someone who has three things:

A

Legal Capacity - 18+ w/ sound mind

Testamentary Capacity - understands:
-Nature of their act
-Extent of their property
-Recognizes their family
-Orderly scheme of disposition formulated

Present intent to create a will

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12
Q

A testator must have both ____ and ____ capacity at the time ____

A

Legal and Testamentary when the will is executed

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13
Q

The formalities required for a valid will are:

A

-Writing (typically)
-Signed by the Testator or by another at T’s direction and in their presence
-In the presence of two attesting witnesses
-Witnesses sign in T’s presence

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14
Q

Under the UPC a will is valid if

A

Attested by two competent witnesses
OR
Signed by a notary

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15
Q

A holographic will is

A

One that is entirely in T’s handwriting and requires no witnesses and can be modified by hand after the will is completed

It is valid as long as it is signed (very broad def of signed)

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16
Q

A devise is ____. A Bequest is ____. A legacy is ____.

A

-Devise = gift of real property to devisee
-Bequest = gift of personal property
-Legacy = gift of personal property in a will to a legatee.

Terms used interchangeably

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17
Q

Types of legacy

A

-Specific devise/legacy - particular property
-General legacy - general economic benefit gift
-Demonstrative legacy - gift of general amount to be paid

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18
Q

Ademption is

A

the failure of a gift because the property is no longer in T’s estate at death

Only applies to specific devises/bequests. If it cannot be identified, the beneficiary gets nothing.

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19
Q

An anti-lapse statute

A

Allows a gift to be taken by the descendants in substitution of the predeceased beneficiary if sufficient proximity of relation

Most states require relation by blood and do not apply anti-lapse statutes to spousal gifts

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20
Q

Rules on interpreting a will

A

-Avoid intestacy
-Latest provision prevails in a conflict
-Construe as a whole
-Ordinary meaning of words
-All words are given effect

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21
Q

A document can be incorporated into a will if

A

Intent - The will intends it to be incorporated
Existence - The doc exists at time will is executed
Description - The doc is sufficiently described in the will

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22
Q

Alterations to the will are

A

Ineffective IF made after will is signed/attested

UNLESS the will is re-excecuted w/ proper formalities

OR as a holographic codicil if recognized

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23
Q

Effect of marriage on an existing will

A

Most states - no effect

UPC - spouse takes an intestate share unless
-The will makes a provision for them
-The omission was intentional
-The will was made in contemplation of the marriage

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24
Q

A pretermitted child is

A

One left out of the will - most states assume T meant to include the child

Any child adopted or born after the execution of the will takes a share as if included

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25
Q

Revocation of a will can occur at _____, can occur through _____, and requires _____

A

at any point prior to death

the law, physical act, or written instrument

The law

Physical act - destruction with concurrent intent to revoke

Written instrument - All the formalities of creating a will (can be complete or partial rev)

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26
Q

Revival of a will is governed by three different approaches:

A

If will 1 executed, then will 2 executed to revoke 1, then will 2 revoked…

-UPC approach - Will 1 remains revoked unless clear from T’s intent that they wanted to revive it
-Auto Revival - later revocation, auto revives earlier will
-No revival - once revoked, never revived

27
Q

Dependent relative revocation occurs

A

When an earlier will is revoked and supplanted by a later will, but the later will is invalid

Revival depends on:
-Whether revocation of will 1 was impliedly conditioned on validity of will 2
-Would T prefer Will 1 over intestacy

28
Q

Homestead, Family Allowance, and Exempt PP are:

A

Homestead - certain amount of family residence is exempt from creditors

Family allowance - reasonable amount of money to family to support during probate

Exempt personal property - tangible personal property can be set aside, unreachable by most creditors

29
Q

Insane delusion is ____. The effect on a will is ____.

A

A belief in facts that don’t exist and no rational person would believe.

ID destroys testamentary capacity IF there is a connection between the delusion and the property disposition.

30
Q

Undue influence occurs when:

A

-Influence exerted
-Overpowering of mind and free will of T
-UI was reason for will’s creation (but for cause)

31
Q

Circumstantial evidence of undue influence and duress includes

A

-Unnatural dispositions
-Opportunity
-Confidential/fiduciary relationship
-Ability of T to resist
-Beneficiary’s involvement in drafting/executing

32
Q

Types of fraud in creation of wills

A

There is willful deception about
Fact - character/content of the document
Inducement - Extrinsic facts affecting/material to a disposition

33
Q

Elements of fraud are:

A

-False rep
-Knowledge of falsity
-T reasonably believed
-Caused T to execute a will/make a disposition

34
Q

A living will or advance health care directive is valid if

A

-in a writing
-Signed by Declarant/agent
-Witnessed by two adult witnesses

35
Q

A trust divides title between

A

-Legal title goes to Trustee
-Equitable title to beneficiary

36
Q

A trustee’s responsibilities and liabilities are:

A

Duty of care - Must use reasonable care to deal with the property
Duty of loyalty - Must maintain loyalty
Breach = personally liable for violation of standard of care

37
Q

Types of trusts

A

-Express trusts - private or charitable
-Resulting trusts - created by law through presumed intent of owner
-Constructive trust - created by law as an equitable remedy to prevent unjust enrichment

38
Q

Trust validity requires

A

Capacity and Ice-T Injured A Pompous Marmot
-Intent
-Identifiable property
-Ascertainable bene’s
-Proper purpose
-Mechanics/formalities - inter vivos transfer, by inter vivos declaration of trust, or by will (testamentary trust).

39
Q

Intent for a trust requires:

A

-Capacity
-Present intent for trust to
-Trustee w/ duties (inter vivos trust must have Trustee, testamentary trust won’t fail for lack)
-Definite Beneficiary
-Same person is not the sole trustee and sole beneficiary
-Proper purpose

40
Q

To be a definite beneficiary, one must be

A

Ascertainable at the time their interests vest

41
Q

A trust will be invalid if created for:

A

-Illegal purpose
-Contrary to public policy
-Impossible to achieve
-Intended to defraud creditors

42
Q

Difference between secret and semi-secret trust

A

Secret - a person is granted property in a will in exchange for the promises to hold that property in trust for another, but the will doesn’t mention the trust nature of the gift. If proved by clear and convincing evidence, a trust is created for the intended beneficiary.

Semi-Secret - a will makes a gift in trust but names no beneficiary. The gift fails. Trustee must hold on behalf of T’s successors in interest.

43
Q

Spendthrift provisions have the following effect:

A

They prevent a beneficiary from voluntarily or involuntarily transferring their interest in the trust or from creditor’s being able to reach those assets.

Some states allow a Settlor to protect their own property through a spendthrift provision

44
Q

Trusts can be revoked

A

-By settlor unless expressly made irrevocable
-By bene’s with settlor’s consent or w/o if all bene’s consent, including unascertained bene’s (so long as no material purpose of the trust would be frustrated)
-By law if unanticipated purposes, impracticable/wasteful, or insuff funds

45
Q

A Trustee’s powers come from:

A

-Those express in the trust (these controls if contradicted)
-Statutory powers
-Implied powers to achieve purpose of the Trust

46
Q

A decision by co-trustees requires a ______ vote

A

Majority

47
Q

A trustee is expected to act _____ in managing the trust

A

in good faith, prudently, and impartially

48
Q

Trustee’s duty of loyalty requires

A

-they not purchase their own assets or sell their own assets to the trust, even if fair value
-transfer property between trusts they are trustee for
-borrow trust funds
-personally gain based on position as trustee

49
Q

Trustee’s duty to report requires

A

-Bene’s have Trustee’s contact info
-Trustee responds to requests
-Trustee provides annual accounting

50
Q

Under the uniform prudent investor act, a Trustee’s investment decisions are viewed

A

As a whole portfolio, not individual decisions

A trustee must use reasonable care, skill, and caution and can outsource this

51
Q

Exculpatory clauses in a trust are ineffective to prevent Trustee liability if

A

-There is a breach in bad faith or reckless indifference
-The clause was included because of an abuse of relationship

52
Q

Cy pres doctrine applies to

A

A charitable trust that is impossible to achieve.

Here, the Court will choose another method that is as near as possible to settlor’s intent

53
Q

A purchase money resulting trust is

A

When a trust is created by operation of law because the beneficiary provides consideration for the acquisition of real property, but legal title is taken in the name of the trustee (with the beneficiary’s consent)

54
Q

A constructive trust is

A

An equitable remedy to prevent unjust enrichment (I.e through fraud, undue influence, breach, etc)

55
Q

A will is presumed to not have been revoked if it is found ______ unless ______

A

in a normal location without suspicious circumstances

the will that was in T’s possession can’t be found or is clearly altered, a rebuttable presumption arises that the T revoked it

56
Q

If a will is lost or destroyed, evidence of it may be admitted to probate if it can be proven that

A

-Valid execution
-Cause of non-production (proof it wasn’t revoked)
-Contents of the will (usually by witnesses or a copy)

57
Q

A pour over gift is

A

When someone designates a trust to receive property through their will

58
Q

There are two views of the pour over gift:

A

Traditional (supplanted) - will’s gift to a trust was only valid if the trust existed at the time of the will’s execution

Modern - a will may devise property to a trust, even if the trust doesn’t exist at execution, and the devise is valid so long as the trust is established before the Testator’s death

59
Q

Result of partial and whole will invalidity

A

Partial
-Modern majority rule - all passes to the named beneficiary whose devise was valid
-Common law rule - invalid devise passes intestate

Whole
-Estate passes intestate

60
Q

A presumption of undue influence arises when all of the following:

A

-confidential relationship
-beneficiary participated in creating the will
-Provisions unnatural in favor of alleged influencer

61
Q

When part of a trust fails for lack of a beneficiary, what happens?

A

A resulting trust for the settlor/settlor’s successors is presumed

62
Q

Unless otherwise specified, gifts in a will will abate in this order

A

-Intestate property
-Residuary estate
-General legacies
-Demonstrative legacies
-Specific devise/bequest

Reduction pro rata

63
Q

The difference in view on revocability of a trust for Common Law and the UPC is

A

Common law - irrevocable unless otherwise stated

UPC - revocable unless otherwise stated

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