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Bar Exam > Wills and Trusts > Flashcards

Wills and Trusts Flashcards

1
Q

What does intestate succession explain?

A

How property is divided if a person dies without a will or if the will is invalidated

Intestate succession is frequently tested on the MEE.

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2
Q

What are the two schemes to divide property among a decedent’s children if there is no surviving spouse or parents?

A
  • Per capita at each generation
  • Per capita with representation (modern per stirpes)
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3
Q

Define ‘per capita at each generation’.

A

To decide shares, find the first generation with living issue and distribute shares accordingly

Cousins are treated alike.

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4
Q

Define ‘per capita with representation’ (modern per stirpes).

A

Pass each deceased person’s share on to her issue(s)

Cousins are not treated alike.

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5
Q

What methods determine heirship when there is no spouse and no children?

A
  • Civil law consanguinity method
  • Parentelic method adopted by the UPC
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6
Q

What is the civil law consanguinity method?

A

Heirship is determined by degree of relationship; all persons of the same degree take equal shares.

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7
Q

What is the parentelic method?

A

Descendants of the decedent’s parents take to the exclusion of descendants of the decedent’s grandparents.

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8
Q

What constitutes a child for purposes of intestate succession?

A
  • Adopted children
  • Children born out of wedlock
  • Half-bloods

Not stepchildren.

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9
Q

What is the issue of advancements in intestate succession?

A

Whether a gift given during the decedent’s lifetime should be deducted from the child’s inheritance.

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10
Q

What is the common law treatment of lifetime transfers to heirs?

A

Presumptively treated as a down payment on the heir’s intestate share.

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11
Q

What is the majority law regarding lifetime transfers?

A

Lifetime transfers are presumed to be gifts and ignored unless evidence shows they were intended as advancements.

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12
Q

What is ademption by satisfaction?

A

A lifetime gift is not a prepayment unless specified in the will or acknowledged in writing.

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13
Q

What are the requirements to execute a valid will under majority law?

A
  • Must be in writing
  • Signed by the testator
  • Witnessed by two witnesses
  • Testator must be 18 or older and intend the document as their will
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14
Q

What are holographic wills?

A

Unwitnessed wills valid if signed and material portions are in the testator’s handwriting.

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15
Q

What is the dispensing power under the UPC?

A

A court can validate a will if there is clear and convincing evidence that the decedent intended the document to be her will.

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16
Q

What is incorporation by reference?

A

A writing not valid as a will may be included if the will shows intent to incorporate and the writing is reasonably identified.

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17
Q

What is required to revoke a will by physical act?

A

Must be done with intent to revoke by the testator or someone at the testator’s direction.

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18
Q

What is dependent relative revocation?

A

A first will isn’t revoked if a later will is found invalid due to mistaken assumptions.

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19
Q

What happens to gifts in favor of a spouse after divorce?

A

Divorce revokes gifts in favor of a spouse.

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20
Q

What is the general rule if a beneficiary predeceases the testator?

A

The gift lapses or fails and falls into the residuary, unless antilapse statutes apply.

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21
Q

What is antilapse statute?

A

Keeps gifts in the family if a beneficiary dies before the testator and has surviving issue.

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22
Q

What does the slayer statute entail?

A

An individual who intentionally kills the decedent forfeits all benefits from the decedent’s estate.

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23
Q

True or False: A beneficiary who accidentally kills the decedent forfeits their gift under the slayer statute.

A

False

Slayer rule does not apply if the killing is not felonious and intentional.

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24
Q

What is the doctrine regarding a slayer who murdered someone other than the decedent?

A

Generally, this doctrine does not bar a gift to the slayer.

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25
Q

What happens when a gift fails due to ademption?

A

The gift fails if specifically devised property is not in the testator’s estate at death.

26
Q

Under what conditions can a beneficiary receive insurance proceeds instead of specifically devised property?

A

If the testator replaced the property or if there were unpaid insurance proceeds at death.

27
Q

What is a disclaimer in the context of estate property?

A

Disclaimed property passes as if the person disclaiming had failed to survive the testator.

28
Q

What is abatement in estate planning?

A

Abatement occurs when the assets of an estate are insufficient to satisfy all gifts.

29
Q

In what order are gifts abated?

A
  • Intestate property
  • Residuary gifts
  • General gifts
  • Specific gifts
30
Q

What is the key principle regarding mental capacity in executing a will?

A

The testator must know the nature and extent of his property, natural objects of bounty, nature of the instrument, and disposition made.

31
Q

What burden does a contestant have in proving lack of mental capacity?

A

The burden of proving that the testator lacks mental capacity rests on the contestant.

32
Q

Define undue influence in the context of a will.

A

Undue influence occurs when a wrongdoer exerts influence over the testator that overcomes their free will.

33
Q

What mnemonic is used to establish undue influence?

A

SODA: Susceptibility Opportunity Disposition Appears to be a product of undue influence.

34
Q

What are the requirements for the validity of a trust?

A
  • Trustee
  • Beneficiary
  • Trust property
35
Q

What is the default rule under the Uniform Trust Code regarding trusts?

A

A trust is revocable unless the instrument expressly states otherwise.

36
Q

What must happen for a settlor to terminate a trust?

A

All beneficiaries must be in existence and agree to the termination.

37
Q

What is a pourover will?

A

A will that makes a gift to a trust, valid if the trust is identified in the will.

38
Q

What is a discretionary trust?

A

A trust where the trustee has discretion to decide when to make distributions.

39
Q

What is a support trust?

A

A trust where the trustee must pay what is necessary for the beneficiary’s support.

40
Q

What characterizes a spendthrift trust?

A

It restrains both voluntary and involuntary transfer of a beneficiary’s interest.

41
Q

Who may reach a beneficiary’s distribution in a trust?

A

Generally, a creditor may not reach a distribution prior to the beneficiary receiving it.

42
Q

What is a charitable trust?

A

A trust created for a charitable purpose benefiting a large number of individuals.

43
Q

What is the cy pres doctrine?

A

It allows modification of a charitable trust when the original purpose becomes impracticable or impossible.

44
Q

Define an honorary trust.

A

A trust without a charitable purpose or definite beneficiary, often for noncharitable care.

45
Q

What is the duty of loyalty in trust management?

A

A trustee has a duty to act in the best interest of the beneficiaries.

46
Q

What is the duty of care in trust management?

A

A trustee must act with the care that a reasonably prudent person would exercise.

47
Q

What is the duty of loyalty in trust law?

A

A trustee has a duty to act in the best interest of the beneficiaries.

This duty ensures that the trustee prioritizes the beneficiaries’ interests above their own.

48
Q

What is the duty of care in trust law?

A

Prudent administration of the trust.

This duty requires trustees to manage the trust with reasonable care, skill, and caution.

49
Q

What does the Uniform Prudent Investor Act (UPIA) require of trustees?

A

Trustees must administer the trust as a prudent person would, using reasonable care, skill, and caution.

Almost all states have adopted a form of the UPIA.

50
Q

How should a trustee’s investment decisions be evaluated?

A

In the context of the entire estate portfolio rather than in isolation.

This approach ensures that decisions contribute to an overall investment strategy.

51
Q

What is the duty to diversify in trust management?

A

A hallmark of prudent investing; failure to diversify can lead to liability.

The trustee is not liable for declines in value due to general economic conditions.

52
Q

What remedies are available for a breach of trust?

A

Suspending/removing a trustee, decreasing compensation, compelling performance of duties, compelling payment of damages, etc.

Courts can also order any other appropriate relief.

53
Q

In a self-dealing case, what can trust beneficiaries do?

A

Rescind the transaction, set aside the purchase, or recover profits made by the trustee.

This allows beneficiaries to restore trust property and seek compensation.

54
Q

What is the difference between general and special powers of appointment?

A

General powers allow unlimited class of people; special powers are limited to specific individuals.

Understanding this distinction is crucial in estate planning.

55
Q

What is a general power of appointment?

A

The beneficiary can exercise it in favor of an unlimited class of people, including themselves.

It typically does not require specific reference in a will unless stated otherwise.

56
Q

How does the majority view interpret a general residuary clause?

A

It does not exercise a power of appointment unless coupled with a blanket exercise clause.

This is important for understanding the intent of the testator.

57
Q

What is a special (or limited) power of appointment?

A

The beneficiary can only exercise it in favor of a limited class of individuals.

A special power needs to be specifically exercised within the will.

58
Q

What does the Uniform Probate Code (UPC) say about class gifts?

A

Each living beneficiary takes their share; the deceased beneficiary’s share passes to their descendants.

This rule applies even if the beneficiary is unrelated to the settlor.

59
Q

What is the common law approach to gifts to deceased beneficiaries?

A

If the gift has vested, it goes to the specified recipient or as stated in the will/intestacy.

This applies even if the gift is not made to a class.

60
Q

In a Decedents’ Estates question, what happens if a testator gives a gift to a group and one member predeceases them?

A

The deceased member does not take, nor do their descendants, unless saved by an antilapse statute.

This highlights the importance of understanding class gifts in estate planning.

Bar Exam (14 decks)

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