WILLS & TRUSTS

Question 1

Requirements for pour over will to trust

Answer 1

Executed before, concurrently with, or within 60 days after will execution

Adequately identified in will

Question 2

Ommitted Child

Answer 2

Born or adopted after execution, recieves intestate share

Applies to child alive at time if T believed dead or unaware of birht

Question 3

Early Termination of Trust by Beneficiariess

Answer 3

only if

(i) all beneficiaries consent and
(ii) would not impair a material purpose (look at instrument and surrounding circumstances)

Question 4

beneficiaries consent to terminate a trust early

Answer 4

all present and future including minors and unborn

Question 5

Duties of Trustee to Beneficiaries

Answer 5

Administer in good faith

Exercise care and skill or RPP

Only in beneficiaries interest

Impartial

Question 6

Can a trustee resign?

Answer 6

No unless beneficiares or court allow

Question 7

Trustee Defenses

Answer 7

Consent

Laches

SOL

Question 8

Trustee Liability to Beneficiaries

Answer 8

Surcharge (sue personally for amount)

Question 9

Will Revocation

Answer 9

Burning, tearing, cancelling, destroying, or obliterating with present intent to revoke

Tearing: must be through some material part

witnesses not needed

Question 10

Holographic Will

Answer 10

California Recovnizes

handwritten and unattested

signature and

material provisions (gifts & beneficiaries)

in T’s handwriting

Question 11

Codicil

Answer 11

Testimentary instrument intended to modify, amend, or revoke an existing will

Must be executed w formalities

Question 12

Integration

Answer 12

Will is all papers present at the time that T intended to be in will

intent and presence presumed when physical connection

extrinsic evidence admissable to show

Question 13

Incorporation by Reference

Answer 13

(1) intent
(2) in existence at execution of will
(3) sufficiently described

Question 14

Undue Influence Elements

Answer 14

Mental or physical coercion that deprives T of freewill

To establish: (1) exerted (2) overpowered mind and freewill (3) product of

Question 15

Undue influence factors

Answer 15

opportunity

susceptibility

whether beneficiary active in procuring the will

variance with intent of T

unnatural (favors strangers)

Question 16

CL Presumption of Undue Influence

Answer 16

confidential relationship,

participated in procuring, and

unnatural and favor influencer

Question 17

CA Statutory Undue Influence Presumption

Answer 17

Donative transfer made to

person who drafted,

person who transcribed and in fiduciary relationship,

or care custodial (unless relationship existed before incapacitated)

Question 18

Valid Trust Requirementss

Answer 18

property

trustee with duties

definite or charitable beneficiaries

intent

proper purpose

Question 19

Trust property

Answer 19

existing interest in existing property

power to convey

Question 20

Trustee with Duties

Answer 20

will not fail for lack of trustee

failure to name for inter vivos will fail bc no delivery

no delivery required when declaration bc settlor is trustee

Question 21

Charitable Trust Beneficiary

Answer 21

Public purpose or soem members of a classs that is indefinite

Question 22

Intent to create trust

Answer 22

Words or Conduct

Precatory may indicate no trust

Question 23

Valid trust purpose

Answer 23

not illegal, tortious, or contrary to public policy

doesnt violate RAP (unless charitable)

Question 24

Revocation of Trust

Answer 24

Trustee may not unilaterally terminate

Most states: presumed irrevocable

CA and UTC: presumed revocable

Question 25

Duty to preserve trust property and make it productive

Answer 25

Must invest

Question 26

Duty to seperate & earrmark trust property

Answer 26

If comingle --\> loss is trustees

Question 27

Duty to invest

Answer 27

Uniform Prudent Investment Act: must act like prudent investor any type of investment permitted evaluated as a whole

Question 28

Investment Considerations

Answer 28

economic conditions inflation tax consequences role of each investment in portfolio expected return other resources of beneficiary need for liquidity, regular income, etc. assetts special value

Question 29

Duty to Diversify

Answer 29

must diversify unless purpose better served without

Question 30

Duty to Account

Answer 30

Must render accounts

Question 31

Third party trust liability

Answer 31

Knowingly participates --\> liable for resulting loss innocent: must retrurn property, if has exchanged for other property must return value or give item

Question 32

Co-Trustee Duties

Answer 32

must act unanimously cant delegate to co-trustee

Question 33

Death of trust beneficiary

Answer 33

Private Trust requires definite beneficiaries If fails, resulting reust in favorr of settlor and successors Trustee's only duty is to convey title back

Question 34

Anti-Lapse Statutes

Answer 34

Save lapsed giftss CA: only if predeceased beneficiary was **kindred** (blood relative) of settlor or kinndred of settlor's spouse

Question 35

Simultaneous Death

Answer 35

Clear and Convicing Evidence or treat as predeceased

Question 36

Duty of Fairness to All Beneficiaries

Answer 36

Produce income for beneficiary and maintain for remaindermen Revocable: only owed to settlor Irrevocable: beneficiarries

Question 37

Attested Will California

Answer 37

writing signed by T in presence of 2 witnesses who sign during T's lifetime understanding that it is T's will

Question 38

Saving a will in California

Answer 38

If not executed in compliance with **witness** requirements clear and convincing evidence that when T signed intended to be his will

Question 39

Testamentary Trust

Answer 39

esssential element smust be ascertained fromt erms of the will an existing writing incorproated by reference or exercvise of a power of appointment created in the will

Question 40

Cy Pres

Answer 40

if specified charitable purpose no longer possible, ct will decide whether **specific or general** if specific, fails and passes by resulting trust to T's estate general: settlor would prefer to a similar purpose if general, court will select a purpose **as near as posssible** to the original in UTC states, **general charitable in presumed**

Question 41

4 classes of gifts

Answer 41

specific demonstrative general ressiduary

Question 42

Components of Will

Answer 42

integration republicaction by codicil incorporation by reference acts of independent significance

Question 43

Interpretation of wills

Answer 43

Extrinsic Evidence Classification of Gift Abatement Ademption Lapse