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BAR FINAL REVIEW > WILLS & TRUSTS > Flashcards

WILLS & TRUSTS Flashcards

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1
Q

Requirements for pour over will to trust

A

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

Adequately identified in will

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2
Q

Ommitted Child

A

Born or adopted after execution, recieves intestate share

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

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3
Q

Early Termination of Trust by Beneficiariess

A

only if

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

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4
Q

beneficiaries consent to terminate a trust early

A

all present and future including minors and unborn

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5
Q

Duties of Trustee to Beneficiaries

A

Administer in good faith

Exercise care and skill or RPP

Only in beneficiaries interest

Impartial

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6
Q

Can a trustee resign?

A

No unless beneficiares or court allow

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7
Q

Trustee Defenses

A

Consent

Laches

SOL

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8
Q

Trustee Liability to Beneficiaries

A

Surcharge (sue personally for amount)

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9
Q

Will Revocation

A

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

Tearing: must be through some material part

witnesses not needed

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10
Q

Holographic Will

A

California Recovnizes

handwritten and unattested

signature and

material provisions (gifts & beneficiaries)

in T’s handwriting

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11
Q

Codicil

A

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

Must be executed w formalities

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12
Q

Integration

A

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

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13
Q

Incorporation by Reference

A

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

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14
Q

Undue Influence Elements

A

Mental or physical coercion that deprives T of freewill

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

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15
Q

Undue influence factors

A

opportunity

susceptibility

whether beneficiary active in procuring the will

variance with intent of T

unnatural (favors strangers)

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16
Q

CL Presumption of Undue Influence

A

confidential relationship,

participated in procuring, and

unnatural and favor influencer

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17
Q

CA Statutory Undue Influence Presumption

A

Donative transfer made to

person who drafted,

person who transcribed and in fiduciary relationship,

or care custodial (unless relationship existed before incapacitated)

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18
Q

Valid Trust Requirementss

A

property

trustee with duties

definite or charitable beneficiaries

intent

proper purpose

19
Q

Trust property

A

existing interest in existing property

power to convey

20
Q

Trustee with Duties

A

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

21
Q

Charitable Trust Beneficiary

A

Public purpose or soem members of a classs that is indefinite

22
Q

Intent to create trust

A

Words or Conduct

Precatory may indicate no trust

23
Q

Valid trust purpose

A

not illegal, tortious, or contrary to public policy

doesnt violate RAP (unless charitable)

24
Q

Revocation of Trust

A

Trustee may not unilaterally terminate

Most states: presumed irrevocable

CA and UTC: presumed revocable

25
Q

Duty to preserve trust property and make it productive

A

Must invest

26
Q

Duty to seperate & earrmark trust property

A

If comingle –> loss is trustees

27
Q

Duty to invest

A

Uniform Prudent Investment Act: must act like prudent investor

any type of investment permitted

evaluated as a whole

28
Q

Investment Considerations

A

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

29
Q

Duty to Diversify

A

must diversify unless purpose better served without

30
Q

Duty to Account

A

Must render accounts

31
Q

Third party trust liability

A

Knowingly participates –> liable for resulting loss

innocent: must retrurn property, if has exchanged for other property must return value or give item

32
Q

Co-Trustee Duties

A

must act unanimously

cant delegate to co-trustee

33
Q

Death of trust beneficiary

A

Private Trust requires definite beneficiaries

If fails, resulting reust in favorr of settlor and successors

Trustee’s only duty is to convey title back

34
Q

Anti-Lapse Statutes

A

Save lapsed giftss

CA: only if predeceased beneficiary was kindred (blood relative) of settlor or kinndred of settlor’s spouse

35
Q

Simultaneous Death

A

Clear and Convicing Evidence or treat as predeceased

36
Q

Duty of Fairness to All Beneficiaries

A

Produce income for beneficiary and maintain for remaindermen

Revocable: only owed to settlor

Irrevocable: beneficiarries

37
Q

Attested Will California

A

writing

signed by T

in presence of 2 witnesses

who sign during T’s lifetime

understanding that it is T’s will

38
Q

Saving a will in California

A

If not executed in compliance with witness requirements

clear and convincing evidence that

when T signed

intended to be his will

39
Q

Testamentary Trust

A

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

40
Q

Cy Pres

A

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

41
Q

4 classes of gifts

A

specific

demonstrative

general

ressiduary

42
Q

Components of Will

A

integration

republicaction by codicil

incorporation by reference

acts of independent significance

43
Q

Interpretation of wills

A

Extrinsic Evidence

Classification of Gift

Abatement

Ademption

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BAR FINAL REVIEW (13 decks)

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