Wills and Trusts

Question 1

 Formalities of a will:

Answer 1

TWIMS
Two witnesses
Writing
Intent
Mature
Signature

Question 2

Grounds for WILL contest

Answer 2

Grounds for WILL contest: is FIRMED?
Fraud
Incapacity – undue influence
Revocation
Mistake – as to the instrument or mistake on the face of the will
Execution defective

Question 3

Lost will - If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven:

Answer 3

(1) valid execution; (2) the cause of nonproduction (that is, proof that the will was not revoked); and (3) the contents of the will.

Question 4

Improperly revoked
Dependent relative revocation (DRR)-

explain

Answer 4

The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will.

Question 5

In a will when the court will allow extrinsic evidence:

Answer 5

Under the UPC, a court may reform a will, even if the will is unambig¬uous, to conform to the testator’s intent if it is proven by clear and convincing evidence that the testator’s intent and the terms of the will were affected by a mistake of fact or law.

Question 6

Stock dividents not included in the will it is going to pass to:

Answer 6

at common law any additional stock dividend is not included in the shares, most states under UPC – included.

Question 7

What is abatement:

Answer 7

Abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all estate debts. Order: 1. Intestate Property 2. gifts of the residuary estate, 3. General legacies, 4. Specific bequests and devises.

Question 8

Ademption by extinction-

Answer 8

Ademption refers to the failure of a gift because the property is no longer in the testator’s estate at the time of their death. The gift will be adeemed.

Question 9

what happens to increases of gifts in a will?

Answer 9

Increases- specific gifts – does not matter. Increases b4 testator’s death – income on property goes into the general estate, but improvements to real property go to specific devisee. Increases after T death- passes to the specific beneficiary.

Question 10

Anti-lapse

explain

Answer 10

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relation¬ship to the testator. and left descendants who survived the testator, some require a blood relationship. These descendants take by substitution. The statute applies unless a contrary provision appears in the will.

Question 11

how to decide when the beneficiary dies before testator, approaches:

Answer 11

• USDA - The USDA provides that when disposition of property (by will, intes¬tacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if they had survived the other.
• 120 hours - many states and the UPC require that a person survive the decedent by 120 hours to take any distribution of the decedent’s property.

Question 12

creation of trust (3reqs)

Answer 12

BIT for creation of trust (beneficiary, intent, trustee);
To create a valid trust, there must be a settlor who, intending to create a trust for a valid trust purpose, delivers the trust property to the trustee to hold for the benefit of one or more beneficiaries.

Question 13

What is a trust

Answer 13

fiduciary arrangement – hold assets on behalf of another.

Question 14

A pour-over provision is a provision

Answer 14

A pour-over provision is a provision in a will making a gift to an inter vivos trust. Most states have adopted the Uniform Testamentary Additions to Trusts Act, which permits a testator to make a gift to a trustee of an inter vivos trust notwithstanding the fact that the trust may be amended or revoked after execution of the will. The trust may be created before or after the testator executes the will.

Question 15

Beneficiary remedies in a trust

Answer 15

Remedies for breach of trust: If the trustee commits, or is about to commit, a breach of trust duties, the court may: (1) enforce specific performance of the trustee’s duties, (2) enjoin the trustee from committing a breach of trust, (3) compel the trustee to pay money or restore property, or (4) suspend or remove the trustee.

Question 16

RAP applies to CORE future interests:

Answer 16

C – CONTINGENT Remainders
O – OPen
R – REMAINDER Interests that either follow a life estate or follow some event
E – EXECUTORY Interests (remainders that follow a conditional fee i.e., fee simple
determinable or fee simple subject to a condition subsequent)

Question 17

CLAIR Trustee must:

Answer 17

Commingling (no), Loyalty, administer (prudently), Invest (reasonable care), report.

Question 18

Intestate distribution types:

Answer 18

Classic per stirpes- equal shares at first level regardless of whether living takers
Per capita with representation- equal shares at first level with living takers, if no living takers, combine and split to grandchildren.
Per capita at each generational level- shares of deceased members of level combined and divided equally at next level.

Question 19

What is a power of appointment?

Answer 19

is an authority created in a donee enabling the donee to designate the limits prescribed by the donor of the power, the persons who shall take and the manner (like personal representative)