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California Bar > Wills & Trusts > Flashcards

Wills & Trusts Flashcards

Master wills and trusts for the California bar.

1
Q

Wills - creation - requirements

A
  1. Testamentary intent: present intent to make particular instrument will
  2. Capacity: T must –
    - Be at least 18
    - Be able to understand extent of his property
    - Know the natural objects of his bounty (spouse, issue, parents, those whose interests will affects)
    - Know the nature of his act (that he is executing will; not all legal technicalities

If no capacity, entire will invalid

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2
Q

Wills - creation - formalities

A

Formal/attested wills:

  • In writing
  • Signed by T (or person at direction, conservator))
  • Signing in joint presence of two witnesses
  • Witness sign during T’s lifetime
  • Witnesses understand document is T’s will

Holographic wills:

  • Material provisions in T’s handwriting
  • Signed by T
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3
Q

Wills - creation - insane delusion

A

At time of execution:

  • T had a false belief.
  • False belief was product of a sick mind
  • No evidence to support belief
  • Delusion affected T’s will

Result: part of will affected by delusion invalid

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4
Q

Wills - creation - fraud - elements

A

[1] There must be a representation;
[2] Of material fact;
[3] Known to be false by the wrongdoer;
[4] For the purpose of inducing action or inaction;
[5] In fact induces the action or inaction desired.

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5
Q

Wills - creation - fraud - types and result

A

[1] Fraud in the execution (e.g., forged signature)
- Entire will invalid
[2] Fraud in the inducement (e.g., “charity you want to give to is under investigation”)
- Affected provision invalid; CT available
[3] Fraud in preventing T from revoking will (variation of fraud in inducement)
- Will not probated; property goes to heirs w/ CT obligation

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6
Q

Wills - creation - undue influence - elements and result

A

SOAP - UR

  • Susceptibility: T has weakness
  • Opportunity: Wrongdoer had access to T
  • Active Participation: Wrongful act
  • Unnatural Result: wrongdoer takes devise ordinarily wouldn’t get

Outcome: part of the will affected by the undue influence is invalid; heirs may get w/ CT obligation

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7
Q

Wills - creation - undue influence - case law presumption

A

CRAP - UR

  • Confidential Relationship: attorney-client, doctor-patient, guardian-ward, clergy person-penitent, trustee-beneficiary, or any other relationship in which one person reposes trust in another
  • Active Participation
  • Unnatural Result
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8
Q

Wills - creation - undue influence - statutory presumption

A

Presumption that donative transfer to the following persons is product of undue influence:

  • Drafter
  • Person in fiduciary relationship w/ T
  • Care custodian of dependent adult, during or w/in 90 days of providing services
  • Close relative, cohabitant or employee of above; partner of law firm in which drafter has interest

Conclusive w/r/t to drafter; otherwise rebuttable. Does not apply to: people who are relatives; if instrument reviewed by indep. atty; $5K gift in $100K estate

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9
Q

Wills - creation - witnesses - interested

A

If witness is beneficiary under will, presumption of wrongdoing and takes amount would be given by intestacy UNLESS rebuts presumption

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10
Q

Wills - creation - witnesses - lack of compliance

A

If proponent of will will establishes by clear and convincing evidence T intended document as will, probated under harmless error rule
- Does not apply to errors w/r/t to writing requirement or requirement that T sign

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11
Q

Wills - mistake - addition or omission

A
  • Omission: no remedy (but maybe DRR)

- Addition: maybe remedy

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12
Q

Wills - mistake - in execution

A

T signs wrong document: generally no remedy

- If two Ts with reciprocal wills or mutual wills sign wrong ones, court may probate

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13
Q

Wills - mistake - in inducement

A

T makes or does not make particular gift on basis of erroneous belief: generally no remedy
- If mistake and what T would have done but for mistake appear on face of will, court may probate

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14
Q

Wills - mistake - in description (ambiguity)

A

T’s will is ambiguous on face (patent) or only ambiguous with parol evidence (latent): introduce parol evidence to determine intent

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15
Q

Components of will - overview

A
  1. Integration
  2. Incorporation by reference
  3. Facts of independent significance
  4. Writing disposing of limited tangible personal property
  5. Pour-over wills
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16
Q

Components of will - integration

A

Which papers in will?

  • Intent
  • Presence
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17
Q

Components of will - incorporation by reference

A

[1] Document or writing
[2] In existence when will was executed
[3] Clearly identified in the will
[4] That T intended to incorporate into will

  • If 1-3 satisfied, 4 presumed
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18
Q

Components of will - facts of independent significance

A

Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from T’s will
- Inquiry: even w/o will, would fact have existed?

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19
Q

Components of will - writing disposing of limited tangible personal property

A

[1] Writing referred to in will AND
- Dated and signed or handwritten by T -OR-
- Established as T’s intent by extrinsic evidence
[2] Writing describes items and recipients w/ reasonable certainty
[3] Writing executed before or after will
[4] Writing directs disposition of tangible personal property (excluding cash and property used primarily in a trade or business) valued at $5K/item and $25K total

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20
Q

Components of will - pour-over wills

A
  • Pour over will: part or all of T’s estate devised to trustee of the inter-vivos trust
  • Uniform Testamentary Additions To Trusts Act (UTATA): if trust valid and in existence before or at time of will’s execution, pour-over provision valid
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21
Q

Wills - creation - formalities - choice of law

A

Will admitted into probate if complies with formalities of any of:

  • California law
  • Law of place where executed
  • Law of place of T’s domicile at time of execution
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22
Q

Codicils - defined

A

Testamentary instrument executed in compliance with CA probate code that modifies, amends, or revokes a will
- Codicil republishes a will, causing it to speak from date codicil executed (“down-dating”)

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23
Q

Codicils - revocation

A
  • If T executes will, then executes a codicil, then revokes his codicil: rebuttable presumption that T intended to revoke only codicil.
  • If T executes will, then executes a codicil, then revokes will: rebutable presumption that T intended to revoke will AND codicil
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24
Q

Pretermission - child

A

Child is pretermitted if born/adopted after all testamentary instruments (will, codicil, revocable inter-vivos trust) executed and not provided for in any

  • Pretermitted child takes intestate share of estate
  • Non pretermitted child not provided for takes nothing unless T erroneously thought dead or nonexistent
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25
Q

Pretermission - spouse/domestic partner

A

Spouse/DP is pretermitted if married after all testamentary instruments (will, codicil, revocable inter-vivos trust) executed and not provided for in any. Takes:

  • 1/2 of CP/QCP owned by decedent at death or in any revocable inter vivos trust (thus omitted spouse ends up w/ 100% of CP/QCP)
  • Intestate share of SP, but not more than 1/2 SP
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26
Q

Wills - revocation - by physical act

A
  1. Will burned, torn, cancelled (lined out), destroyed or obliterated (erased)
  2. T has simultaneous intent to revoke
  3. Act done by T or someone in his presence and at his direction
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27
Q

Wills - revocation - cancellation and interlineation

A
  • When interlineation is more than cancelled
    provision, DRR will be used
  • When interlineation is less than cancelled
    provision, DRR will NOT be used
  • Cancellation to increase a gift is prohibited (e.g., cross out 1 of 2 beneficiaries; 1/2 goes to residue)
  • Handwritten addition to attested will that’s not valid holographic codicil may be valid cancellation
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28
Q

Wills - revocation - mutilated wills

A

If will is found in mutilated condition at T’s death, and when last seen it was in T’s possession, rebuttable presumption that T mutilated w/ intent to revoke

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29
Q

Wills - revocation - dependent relative revocation

A
  • If T revokes will or portion thereof in mistaken belief that a substantially identical will or codicil effectuates his intent, by operation of law revocation of the first will be deemed conditional,
    dependent, and relative to the second effectuating T’s intent
  • If the second does not effectuate T’s intent, the first (by pure legal fiction) was never revoked
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30
Q

Wills - revocation - by written instrument

A
  • Express: Will #1 can be revoked by Will #2 if Will #2 expressly revokes Will #1
  • Implied: Will #2 revokes Will #1 by implication if Will #2 totally disposes of T’s estate
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31
Q

Wills - revocation - revival

A

Situation: Will #1 revoked by Will #2, which is then revoked

  • Will #2 revoked by physical act: Will #1 not automatically revived; rather, Will #1 revived only if T manifests intent to revive Will #1; oral statements by T at time Will #2 revoked admissible
  • Will #2 revoked by subsequent instrument: Will #1 is not revived unless it appears from the terms of the codicil that T wanted Will #1 revived
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32
Q

Wills - revocation - by operation of law

A

If there is an annulment or final dissolution of T’s marriage, or termination of T’s domestic partnership, T’s devise to spouse/DP revoked by operation of law

  • Can opt out w/ express statement
  • Reinstated if will unchanged and remarry
33
Q

Wills - classification - types of gifts

A
  • Specific devise: gift of particular unique item
  • General devise: payable out of general assets of estate
  • Demonstrative devise: hybrid; gift from particular fund, but if not enough, executor can resort to general property
  • Residuary devise: all other property not expressly disposed of in will
34
Q

Wills - classification - ademption by extinction

A
  • Common law: mechanical test
  • CA: T’s intent
  • No ademption if:
    • Securities change form
    • Conservator sells off assets
    • Eminent domain or casualty award, or installment sale of property, in which T holds deed of trust as security for sale.
  • Otherwise: try to classify gifts as general OR try to trace
35
Q

Wills - classification - ademption by satisfaction

A
  • T gives the beneficiary an inter vivos down-payment on a devise
  • Established by:
    1. Will itself
    2. Contemporaneous writing by T that gift satisfaction.
    3. Beneficiary acknowledges in writing (at any time) satisfaction
    4. Property given in satisfaction is same property that is subject of a specific gift to beneficiary
36
Q

Wills - classification - advancement

A
  • Intestate gives inter vivos down-payment to heir apparent
  • Established by writing from IT at time of gift; writing from HA at any time
  • If HA predeceases IT, issue not treated as having received
37
Q

Contracts to make wills

A
  • Contract law issue
  • Generally no cause of action until decedent dies in breach
  • Can get constructive trust as remedy
38
Q

Unworthy heirs - killers

A
  • Felonious and intentionally killers do not take by will, intestacy, or insurance; anti-lapse statue doesn’t apply
  • JTs are severed so killer doesn’t take decedent’s share (killer retains his own)
  • Conviction conclusive; otherwise probate court determines by preponderance
39
Q

Unworthy heirs - elder abusers

A

Person found liable by clear and convincing evidence of elder abuse will be treated as if he predeceased decedent

  • Includes physical abuse, neglect or fiduciary abuse.
  • Must have acted in bad faith AND recklessly, oppressively, fraudulently, or maliciously
  • Decedent must have been unable to manage financial resources to resist
40
Q

Intestate succession - spouse/DP

A
  • CP/QCP: decedent’s 1/2 (thus ends up w/ all)
  • SP: if decedent survived by one child, issue of predeceased child, or no child but parents, 1⁄2 to surviving spouse/DP and 1⁄2 to child, issue, or parents
  • SP: if decedent survived by 2 or more children, or issue of predeceased children, 1/3 to surviving spouse/DP and 2/3 to children or issue
41
Q

Intestate succession - no spouse/DP

A
  • Issue
  • Parents
  • Issue of parents
  • Grandparents
  • Stepchildren (issue of predeceased spouse/DP)
  • Next of kin
42
Q

Wills - simultaneous death

A
  • With will: if devolution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whom, then it is deemed the one person did not survive the other
  • Intestate: for any heir to take, the heir must survive the intestate by 120 hours by clear and convincing evidence
43
Q

Abatement - for pretermitted spouses/DP, children

A
  1. Property not passing by will or RIV trust
  2. From all beneficiaries of will and RIV trust pro rata, in proportion to the value of gift
  3. Specific gifts not exempt, but court can exempt if abating would defeat obvious intention of T
44
Q

Abatement - to pay debts

A
  1. intestate property
  2. residuary gifts
  3. general gifts to non-relatives
  4. general gifts to relatives
  5. specific gifts to non-relatives
  6. specific gifts to relatives.

To extent they can be satisfied from designated fund, demonstrative gifts treated as specific

45
Q

Wills - exoneration

A

No automatic exoneration in CA; general direction “to pay all my just debts” is not sufficient

46
Q

Private express trust - definition

A

A fiduciary relationship with respect to property whereby one person, the trustee, holds legal title for the benefit of another, the beneficiary, and which arises out of a manifestation of intent to create it for a legal purpose

47
Q

Creation of trust - intent

A
  • Must be present manifestation of trust intent by settlor

- Precatory words by themselves are not sufficient to create a trust

48
Q

Creation of trust - corpus

A
  • If trustee 3P: transfer in trust
    1. For real property, settlor must execute and deliver deed transferring title to trustee
    2. For personal property, must be delivery to trustee at the time settlor manifests intent to create; can be actual, symbolic or constructive (promise to deliver not sufficient
  • If settlor trustee: declaration in trust
    1. For real property, writing to satisfy SOF
    2. For personal property, declaration
49
Q

Creation of trust - purpose

A

Trust may be established for any legal purpose

  • Illegality at creation: try to excise bad from good; otherwise invalidate so that settlor retains ownership or give to trustee as penalty
  • Illegality after creation: resulting trust
50
Q

Charitable trust - definition

A

Any trust which confers a substantial benefit upon

society

51
Q

Charitable trust - special rules

A
  • Rule against perpetuities doesn’t apply
  • If charitable trust impossible to carry out:
    1. Use cy pres if settlor’s charitable intent was general
    2. Declare resulting trust if charitable intent was specific
52
Q

Honorary trust - problems

A
  • Trustee may refuse to carry out settlor’s wishes and trust fails (NEVER happens for other trusts)
  • Typically there are Rule Against Perpetuities problems; courts either declare resulting trust or impose 21-year limit on trust
53
Q

Totten trust - definition and issue

A
  • Definition: savings account that names beneficiary, who takes on account holder’s death
  • Issue: does account holder do something to elevate Totten account to a full-blown private express trust with full range of fiduciary duties?
54
Q

Spendthrift trust

A
  1. Voluntary alienation: generally not permitted
    - Sometimes court will recognize on ground that beneficiary has given trustee direction to pay agent; direction revocable
  2. Involuntary Alienation: generally not permitted
    - Preferred creditors can attach beneficiary’s right to future payments (IRS, providers of necessaries, child/spousal/alimony support)
    - Any creditor can attach “surplus” as measured by beneficiary’s “station in life.”
55
Q

Support trust

A
  1. Voluntary alienation: not permitted
  2. Involuntary Alienation: generally not permitted
    - Same rules as spendthrift trust
56
Q

Discretionary trust

A

Voluntary and involuntary alienation: may be no payout, but if trustee has notice of assignment or debt and decides to pay, he must pay assignees or creditors or be held personally liable

57
Q

Hybrid support/discretionary trusts

A

Tell bar examiners might be treated either way, apply both rules

58
Q

Self-settled spendthrift, support, or discretionary trusts

A
  1. Voluntary alienation: split of authority on whether to give effect
  2. Involuntary alienation: not given effect in most jurisdictions
59
Q

Resulting trust - definition

A

Implied in fact trust based upon presumed intent of parties; if decreed by court, resulting trustee will transfer property to settlor, estate, or heirs

60
Q

Resulting trust - how arises

A
  1. Private express trust ends by its own terms w/o provision for what happens to corpus
  2. PET fails because there is no beneficiary
  3. Charitable trust ends and can’t use cy pres
  4. PET fails because of illegality after creation
  5. PET has excess corpus
  6. Purchase money resulting trust
  7. Semi-secret trust
61
Q

Purchase money resulting trust

A
  • A pays consideration to B to have title to property transfer to C
  • If A and C not closely related, rebuttable presumption that C is purchase money resulting trustee for benefit of A
  • If A and C closely related, rebuttable presumption of gift
62
Q

Semi-secret trust

A
  • Will makes a gift to person to hold as trustee but does not name beneficiary
  • Court declares resulting trust
  • On bar, always discuss BOTH semi-secret trust and secret trust if facts suggest either
63
Q

Constructive trust - definition

A

Remedy to prevent fraud or unjust enrichment; wrongdoer will have only one obligation: to transfer the property to the intended beneficiary as determined by the court

64
Q

Constructive trust - how arises

A
  1. Trustee of private express trust or charitable trust makes a profit because of self-dealing
  2. With respect to law of wills, when there is fraud in the inducement or undue influence
  3. Secret trust
  4. Oral real estate trust
65
Q

Secret trust

A
  • Will on its face makes gift outright to A, but gift is given on basis of an oral promise by A to use property for benefit of B
  • Parol evidence is admissible to show beneficiary was B
  • A becomes constructive trustee whose only obligation is to transfer the property to B
  • On bar, always discuss BOTH semi-secret trust and secret trust if facts suggest either
66
Q

Oral real estate trust

A
  • Arises when S executes deed in favor of A based on A’s oral representation that A will hold Blackacre for benefit of B.
  • SOF is no defense if:
    1. Fiduciary relationship between S and A
    2. Fraud in the inducement on A’s part
    3. Detrimental reliance by B, the intended beneficiary
  • A then becomes constructive trustee whose only obligation is to transfer the property to B
67
Q

Trustee - powers

A
  1. Enumerated powers
  2. Implied powers, including:
    - The power to sell trust property.
    - The power to incur expenses.
    - The power to lease.
    - The power to borrow (under modern law only; not common law).
68
Q

Trustee - duties

A
  1. Duty of loyalty (no self-dealing)
  2. Duty of care
    - Act as a reasonably prudent person dealing w/ own affairs
  3. Duty to invest (includes duty to diversify)
  4. Duties to earmark and segregate
  5. Duty not to delegate
  6. Duty to account
69
Q

Trustee - duties - duty of loyalty

A
  • Trustee surcharged for loss caused by breach

- Note self-dealing includes favoring one beneficiary of another and selling trust property to trustee’s spouse

70
Q

Trustee - duties - duty to invest

A
  1. State lists: US bond, FDIC CD, 1st deed of trust
  2. Common law prudent person test: each individual investment scrutinized; state list + blue chips
    - Under both rules, never invest in a new business or second deed of trust in real estate
  3. Uniform Prudent Investor Act: adopted by most states; performance is measured in the context of the entire trust portfolio
71
Q

Trustee - duties - duties to earmark and segregate

A
  • Earmark: label trust property; under common law, liable for any loss if don’t, under modern rule, liable if loss result of not earmarking
  • Segregate: no co-mingling of trust & personal funds; can be removed and be held liable for any loss
72
Q

Trustee - duties - duty not to delegate

A

Can rely on professional advisors in reaching decision, but cannot delegate decision-making authority to these advisors

  • Can rely on advice of competent counsel
  • Modernly, can delegate duty to invest to a professional money manager
73
Q

Trustee - duties - remedies for breach

A

[1] Damages.
[2] Constructive trust remedy.
[3] Tracing and equitable lien on property
[4] Ratify the transaction if good for beneficiary
[5] Remove trustee

74
Q

Trustee - liability in tort and contract

A
  • Common law: sued in individual capacity and can seek indemnification
  • Modern rule: sued in representative capacity as long as entering into K in rep capacity OR not personally at fault
75
Q

Trust modification - by settlor

A
  • Settlor can modify the trust if settlor expressly reserves the power to modify the trust
  • Settlor also has the power to modify if the settlor has the power to revoke
76
Q

Trust modification - by court

A
  • Cy pres
  • Deviation power (doctrine of changed circumstances): change admin/mgmt provisions, not beneficiary; must show unforeseen circumstances on part of settlor and necessity
77
Q

Trust revocation

A
  • Revocable: under majority rule, must retain revocation power
  • Irrevocable: one of –
    1. Settlor and all beneficiaries (including contingent remaindermen rep’d by GAL) agree to terminate
    2. All beneficiaries agree to terminate and all material purposes have been accomplished
    3. Statute of Uses; express trust with corpus of real property and trust is passive (trustee has no active duties and just holds bare legal title)
  • Does not apply to personal property but should by analogy
78
Q

Trusts - allocation of income and expenses

A
  • Life tenant gets: cash dividends; interest income; net business income
  • Life tenant pays: interest on loans; taxes; minor repairs (e.g., paint job)
  • Remaindermen get: stock dividends; stock splits; net proceeds on the sale of a trust asset
  • Remaindermen pay: principal on loans; major repairs or improvement

Trustee can disregard if a different allocation is necessary to administer the trust fairly

California Bar (13 decks)

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