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Josh's California Cards > Wills and Trusts Essay Flashcards > Flashcards

Wills and Trusts Essay Flashcards

1
Q

Revocation by Physical Destruction

A
  1. T can revoke the will by burning, tearing, canceling, destroying, or obliterating it, with INTENT to revoke.
  2. To revoke by TEARING the will must be torn through a material part.

No need for witnesses.

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2
Q

Intestate Succession

A

Any part of T’s estate not properly disposed of by will passes to the decedents intestate heirs by statute:

  1. If no surviving spouse, a decedent’s estate passes to her issue;
  2. Issue of same generation take equally.

CP and SP treated differently.

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3
Q

Revival of a Will

A
  1. If a will is revoked by a subsequent instrument, and that subsequent instrument is ITSELF revoked, then the revoked will is revived, IF the T so intends.
  2. A will STILL IN EXISTENCE may be revived through publication of a subsequent codicil OR through re-execution of the existing revoked will and having witness attest to it.
  3. A will revoked by PHYSICAL DESTRUCTION cannot be republished.
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4
Q

Holographs

A

California recognizes holographic (handwritten and unattested) wills and codicils if the signatures and material provisions are in testator’s handwriting and signed.

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5
Q

Codicil/Holographic Codicil

A

A codicil is a testamentary instrument intended to modify, amend, or revoke an existing will and must be executed with the same formalities as a will.

Same as above, but only needs: (i) material provisions; and (ii) T’s handwriting.

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6
Q

Integration

A
  1. A will consists of all papers actually PRESENT at the time of execution that the T intended to constitute her will.
  2. The requisite intent and presence of the papers at execution are presumed when there is a physical connection of the papers.
  3. Extrinsic evidence is permissible to show intent.
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7
Q

Incorporation by Reference

A

To incorporate a document by reference, the testator must so intend and it must be:

  1. In existence at the will’s execution;
  2. Sufficiently described in the will; and
  3. Proved to be the one in the described will.
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8
Q

Omitted Child

A
  1. A T can intentionally disinherit a child by clear intent.
  2. If a decedent unintentionally fails to provide for a child born AFTER or adopted AFTER the execution of the decedent’s testamentary instruments, the child receives her intestate share.
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9
Q

Omitted Child

A
  1. A T can intentionally disinherit a child by clear intent.
  2. If a decedent unintentionally fails to provide for a child born AFTER or adopted AFTER the execution of the decedent’s testamentary instruments, the child receives her intestate share.
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10
Q

Undue Influence: Elements

A

A will is invalid if obtained through undue influence, mental or physical coercion that deprives T of her free will and substitutes the desires of another for hers.

Elements:

  1. Influence exerted on the T;
  2. Effect of influence was to overpower the mind and free will of the T; and
  3. The product of the influence was a will that would not have been executed BUT FOR the influence.

BURDEN ON CONTESTANT

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11
Q

Undue Influence: Evidence/Factors

A
  1. Contestant has burden of proof.
  2. Usually proved with circumstantial evidence involving a number of factors that combine to show undue influence.

Factors:

  1. opportunity to exert influence
  2. susceptibility of T
  3. whether the B was active in procuring the will
  4. Whether the dispositions in the will are at variance with expressed intentions of T; and
  5. Whether the will provisions seem unnatural*.

*It is unnatural if it favors the stranger over natural objects of T’s bounty.

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12
Q

Undue Influence: Common Law Presumption

A
  1. T and B are in a confidential relationship;
  2. The B participated in procuring the will; and
  3. Will provisions are unnatural and favor the influencer.

The presumption shifts burden of proof to will proponent.

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13
Q

Undue Influence: Statutory Presumption

A

In California a statutory presumption of undue influence arises when a donative transfer is made to:

  1. Person who drafted instrument;
  2. Person who transcribed the instrument and was in a fiduciary relationship with the T; or
  3. Care custodian*

*Not applicable where custodian had a preexisting personal relationship.

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14
Q

Anti-Lapse

A
  1. When a beneficiary ceases to exist (or dies) after the will is executed, but before the T dies, the gift lapses.
  2. In the absence of a contrary will provision, the failed gift falls into the residue or, if none, passes by intestate succession.
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15
Q

Pour Over From Will

A

T can make gifts by will to a revocable and amendable trust that was executed before, concurrently, or within 60 days after the execution of the will and is validly identified in the will.

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16
Q

Omitted Child

A
  1. If a decedent unintentionally fails to provide for a child born or adopted after execution of the testamentary instruments, then the child receives intestate share.
  2. Applies where decedent believed a child dead, or was unaware of the child’s existence.
  3. For purposes of calculating an omitted child’s share the decedent’s estate includes probate estate plus all property held in revocable trust that becomes irrevocable upon death.
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17
Q

Resignation of Trustee

A
  1. Trust will never fail merely because a trustee refuses to serve.
  2. Court will appoint a new trustee.
17
Q

Termination of Trust by Beneficiaries

A
  1. All B’s must consent;
  2. Must not impair a material purpose; and
  3. Also requires the consent of ALL unborn or future interests.

In considering material purpose the whole instrument and surrounding circumstances will be considered.

18
Q

Duties of Trustee

A

Trustee of an irrevocable trust owes her duties exclusively to the beneficiaries. These duties include:

  1. Administer trust in good faith and in a prudent manner in accordance with the terms and purposes of the trust.
  2. Exercise the same degree of skill, care, and caution that a reasonably prudent person would use in managing their own property.
  3. Administer the trust solely in the B’s interest and must act impartially if there is more than one B.
  4. Further, once Trustee has accepted appointment she cannot resign without a court order.
19
Q

Trustee Defenses

A
  1. Equity will not enforce a trust if the beneficiaries expressly or impliedly consented to the breach.
  2. The beneficiaries must sue within a reasonable amount of time or be barred by laches.
20
Q

Liability of Trustee to the Beneficiaries

A

Right of surcharge, B’s may sue the T to restore the trust property and distribution to what they would have been without the breach.

21
Q

Creation of a Valid Trust

A
  1. Property (existing interest in existing property);
  2. Trustee with duties;
  3. A definite or charitable beneficiary;
  4. Manifestation of intent to create a trust by a settlor WITH CAPACITY; and
  5. A valid trust purpose.
22
Q

Trustee Requirement

A
  1. A trust generally will not fail for lack of a trustee (court will appoint one);
  2. However, it may fail for an intervivos trust because there can be no delivery of the trust; HOWEVER, where there is a DECLARATION OF TRUST no delivery is required because the settlor is the trustee thereby fulfilling obligation.
23
Q

Charitable Beneficiary

A
  1. A Charitable trust benefits the public generally or some members of a class that is indefinite.
  2. Advancement of religion is a recognized charitable purpose.
24
Q

Intent to Create a Trust

A

Manifested by words or conduct. Must have sufficient capacity as well.

25
Q

Revocation of Trust by Trustee

A
  1. A trustee generally may NOT unilaterally terminate a trust unless explicitly provided for in the trust instrument; and
  2. Broad ‘powers of administration’ will not include the power to revoke a trust.
26
Q

Revocation of Codicil by Physical Act

A
  1. If revoked by physical act, then the intention to revoke a codicil must be concurrent with the physical act.
  2. If cancellation takes place on a material part of the codicil, or at least “touches the words of codicil” then it is revoked by physical act.
  3. Revoking a codicil does not revoke a will, even if the Testator so intended.

ALWAYS LOOK TO SEE IF THIS COULD ALSO BE A HOLOGRAPHIC REVOCATION.

27
Q

Effect of Revocation of Codicil/Will on Revival of Prior Will

A
  1. Under Ca law the revival of a revoked legacy depends on the T’s intent.
  2. If the revoking instrument was revoked by physical act, extrinsic evidence is ADMISSIBLE to prove the T’s intent to revive the legacy.
28
Q

Residue

A

A residuary gift is what remains of T’s property after paying the debts, expenses, and taxes, and specific, general, and demonstrative gifts.

29
Q

Anti-Lapse

A

When a B dies after the will is executed but before T’s death, the gift lapses. Generally, the lapsed gift will fall into the residuary estate, or if none, by intestacy.

Anti-Lapse exception:

Under the California anti-lapse statute, if the predeceasing B is a blood relative of the T, or a blood relative of T’s spouse or domestic partner, the issue of the predeceasing B takes the B’s gift with per capita representation.

30
Q

Ademption

A

Ademption is the revocation of a specific gift where it is not part of the T’s estate upon T’s death. In most states the T’s intent is irrelevant, however, in California, ademption depends on whether the T intended to adeem the gift when the specific gift was disposed of.

31
Q

The Duty to Invest

A
  1. The Uniform Prudent Investor Act requires a trustee to invest and manage trust assets as a prudent investor would.
  2. Any type of investment is permitted.
  3. Prudence is evaluated as to the overall investment strategy.
32
Q

Making Investment Decisions

A

Trustee to consider:

  1. General economic conditions;
  2. Inflation or deflation;
  3. Tax consequences;
  4. The role of each investment in the trust portfolio.
  5. Needs for liquidity, regularity of income or appreciation of capital.
33
Q

Trustee Appointment

A
  1. Acceptance of a trust is presumed.

2. Trustee may disclaim, but once acceptance cannot resign without Court approval.

34
Q

Co-Trustees

A

Manage trust unanimously unless trust instrument provides otherwise.

Cannot delegate your responsibility to another trustee.

35
Q

Duty of Account

A

Trustee must keep and render accounts, and furnish information to beneficiaries.

36
Q

Spouse

A
  1. Each spouse owns one half interest in CP.

2. Marital economic community ends at divorce/dissolution of marriage.

37
Q

Omitted Spouse

A

If decedent marries after execution of his testamentary instruments and fails to provide for the spouse in the instruments, the spouse may take, in addition to her share of the CP, her intestate share of the decedent’s property.

38
Q

How Omitted Child’s Share affects other gifts?

A

In the absence of property not passing by will or trust, the omitted child’s share is satisfied by taking pro-rata from all of the beneficiaries taking under the decedent’s will and/or revocable trust.

39
Q

Will Formalities

A
  1. In writing
  2. Must be signed by the testator
  3. The T’s signing or acknowledgment of signature must occur in the JOINT presence of two witnesses who sign IN THE T’s LIFETIME.
  4. The witnesses must understand that the instrument is the T’s will.
40
Q

Will Formality Failure

A

If a will is not executed in compliance with witnessing requirements, it may still be admitted to be probate IF the will proponent establishes by clear and convincing evidence that at the time the T signed the will he intended it to constitute his will.

41
Q

Testamentary Trust

A

Same requirements as an intervivos trust, plus the essential terms must be ascertained from:

  1. The terms of the will;
  2. An existing writing incorporated by reference; or
  3. The exercise of a power of appointment created in the will.

Josh's California Cards (13 decks)

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