Wills and Trusts Essay Specific

Question 1

How many witnesses are needed for a will to be valid?

Answer 1

2 witnesses

Question 2

What is the ruling code for wills?

Answer 2

EPIC (“Estates and Protected Individuals Code”)

Question 3

Does EPIC allow an interested party to serve as a witness for a will?

Answer 3

Yes.

EPIC states the “signing of a will by an interested witness does not invalidate the will or any provision of it.”

Question 4

divorce effect on a will

Answer 4

A divorce after signing of a will operates to revoke any bequest to the former spouse

Question 5

What governs the division of an estate?

Answer 5

EPIC

Question 6

“Election of surviving spouse”

Answer 6

the surviving spouse of a decedent who dies testate may elect either to abide by the will or to receive a share of the decedent’s estate, which is referred to as the spouse’s “elective share.”

the surviving spouse may elect to either:

(1) abide by the terms of the will, or
(2) take one-half of the sum or share that would have passed to the surviving spouse if the decedent had died intestate, reduced by one-half of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.

Question 7

“Entitlement of spouse; premarital will”

Answer 7

a “pretermitted spouse,” a surviving spouse who married the testator after the will was executed, is entitled to receive an intestate share of a specified portion of the state.

Question 8

How to calculate the surviving spouses share under the entitlement of spouse; premarital will

Answer 8

the spouses share is calculated by deducting what was granted to a child of the decedent, so long as the child is not also the child of the surviving spouse

Question 9

When does the surviving spouse take her intestate share?

Answer 9

After the devises to the children (not step children) are subtracted.

Question 10

3 elements for a gift to be valid

Answer 10

(1) the donor must possess the intent to transfer title gratuitously to the donee, (2) there must be actual or constructive delivery of the subject matter to the donee, unless it is already in the donee’s possession, and (3) the donee must accept the gift.

Question 11

One line of attack against a deed given while the party was alive without consideration

Answer 11

Invalid intervivos gift

Question 12

Whether a legal document is a deed or a will turns on whether it conveys a present interest, in which case it is deemed a ______, or an interest on the death of the person who executed it, in which case it is a _____.

Answer 12

deed

will

Question 13

3 ways to glean the intent of the person who executed the document

(wills and trusts)

Answer 13

(1) the instrument itself
(2) circumstances surrounding its creation, and
(3) the manner in which the parties subsequently dealt with it

Question 14

A presumption of undue influence exists upon a showing of:

Answer 14

(1) existence of a confidential or fiduciary relationship between the grantor and the fiduciary
(2) the fiduciary or an interest which he represents benefits from the transaction, and
(3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction.

Question 15

define confidential relationship

Answer 15

dominiion may be excercised by one person over another

Question 16

To establish undue influence, it must be shown:

Answer 16

that the grantor was subjected to threats, misrepresentation, undue flattery, fraud, or physical or moral coercion sufficient to destroy free agency and impel the grantor to act against his inclination and free will.

Question 17

What is the division of the estate governed by?

Answer 17

Estates and Protected Individuals Code (EPIC)

Question 18

When a person dies testate, are spouses or children not provided for in the deceased will entitled to anything?

Answer 18

In limited instances, EPIC provides statutory rights to claim from an estate that may not be provided for in a will.

Question 19

What happens if a testator disinherits a child via will?

Answer 19

That child receives nothing.

Question 20

What does a child born after the execution of a will entitled to?

No living children:

Living children:

Answer 20

No living Children: “a share of the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child”.

Living children: receive the same amount as the living children received

If only other child was disinherited: maybe a maintance allowance?

Question 21

If the decedent died prior to April 6th 2017:

If the decedent died on April 6th or after:

Answer 21

prior: widows may elect to receive a dower interest

on or after: widows cannot elect their dower rights because such rights have been abolished in Michigan as of that date.

Question 22

Homestead allowance, Maintenance Exemption, and Household and Personal Effects Allowance

Answer 22

“A homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by elective share.”

Similar provisions in MCL 700.2403 and 700.2404 provide that these protections are in addition to anything the surviving spouse receives through the elective share provision under MCL 700.2202(2) (b).

Question 23

Tenancy in the entirety

Answer 23

created by operation of common law rather than by the act of the parties through their deed.

Neither a husband nor a wife may act alone to convey any part of real property that is held by both of them as tenants by the entireties.

Neither party may “encumber or convey such property.

Question 24

Lack of testamentary capacity

Answer 24

An individual 18 years of age or older who is of sound mind may make a will.

to prove sound mind, the individual must be able to:

(1) comprehend the nature and extent of his property,
(2) recall the natural objects of his bounty, and
(3) determine and understand the disposition of property he wishes to make.

Question 25

Failure to execute a proper will

Answer 25

A codicil to a will must be executed with the same requirements that a valid will must be executed.