Wills & Trusts Flashcards
What are the requirements for an attested will?
Requires (i) writing; (ii) signed by T; (iii) in presence of two Ws; (iv) Ws sign with understanding that instrument is T’s will.
What defines a holographic will?
Must be (i) signed by T and (ii) material provisions in T’s handwriting.
What is the presumption regarding interested witnesses?
Unless two disinterested Ws are present, there is a presumption that interested W secured gift by wrongdoing.
What is the capacity requirement for a testator (T)?
T must be > 18 years old; able to understand extent of T’s property; know the natural objects of their bounty; and know the nature of his act.
What constitutes an insane delusion in the context of a will?
T had a false belief that was a product of a sick mind; no evidence to support that belief; and delusion affected T’s will.
What are the two types of fraud related to wills?
- Fraud in Execution
- Fraud in Inducement
What happens if there is fraud in execution?
T’s signature is forged or T is given a document that he believes isn’t testamentary, leading to the entire will being invalid.
What is a prima facie case for undue influence?
(i) Susceptibility; (ii) Opportunity; (iii) Active participation; (iv) Unnatural result.
What is statutory undue influence?
Donative transfer is invalid if transferred to person that drafted the instrument or drafter’s family, unless specific exceptions apply.
What are the methods of revocation for a will?
- Subsequent will
- Physical act (burn, tear, cancel)
- By operation of law
What is dependent relative revocation?
Disregards revocation caused by mistake when T revokes a will in mistaken belief that a substantially identical will effectuates T’s intent.
What are the components of wills regarding integration?
Determines what makes up the will by looking for staples, numbered pages, etc.
What is incorporation by reference in wills?
Requires (1) document or writing; (2) in existence when will was executed; (3) document clearly identified in will; and (4) T intended to incorporate document into will.
What are facts of independent significance?
Facts that would have existed without the will.
What is a pour over will?
T devises all assets into an inter-vivos trust, valid through incorporation by reference or independent significance.
What is the effect of a codicil on a will?
Codicils modify, amend, or revoke will and republicate the will.
What happens if a testator revokes a codicil?
There is a rebuttable presumption that T intended only to revoke the codicil.
What is a mistake in content regarding wills?
If omission, no judicial remedy; if addition, remedy possible by crossing out.
What is a mistake in execution?
No probate if no intent, unless reciprocal or mutual will.
What is a mistake in inducement?
No relief unless both mistake and what T would have done are expressed in the will.
What is a mistake in description?
Latent: introduce parol evidence to establish ambiguity and T’s intent; Patent: common law has no remedy, modern law allows parol evidence.
What is required for a beneficiary to not lapse?
Beneficiary must survive T.
What does the Anti-Lapse Statute provide?
If a predeceased beneficiary is T’s blood relative and leaves issue, then issue will step into the shoes of the predeceased and take, absent contrary provision.
Define specific devise.
A unique gift of a specific piece of property.
Define general devise.
A gift payable out of the general assets of the estate.
Define demonstrative devise.
A gift from a particular source, but if that source is insufficient, it is payable from general property.
Define residuary devise.
A gift that includes all the leftovers of the estate.
What is ademption by extinction?
Only applies to specific gifts; if T doesn’t own the specific property, the gift is adeemed by extinction.
What are the exceptions to ademption by extinction?
- Securities change form
- Conservator sells off assets
- Eminent domain
- Casualty
- Installment sale
What is ademption by satisfaction?
May satisfy a general or demonstrative gift under certain conditions.
What are the requirements for ademption by satisfaction?
- Will provides for deduction of inter vivos gift
- T declares contemporaneous writing that gift is a satisfaction
- Beneficiary acknowledges in writing the satisfaction
- Property given in satisfaction is the same as the gift in the will
What happens to after-acquired property?
Increases during T’s life (e.g. dividends and splits) will go to intended beneficiary.
What is abatement?
Gifts increase or decrease by operation of law.
How does abatement occur to satisfy payment to a pretermitted spouse or child?
- Property not passing by will or trust
- All beneficiaries pro rata
How does abatement occur to satisfy general debt?
- Intestate property
- Residuary gift
- General gift to non-relative
- General gift to relative
- Specific gift to non-relative
- Specific gift to relative
What is exoneration in the context of gifts?
Extinguishes debt on gift; executor must pay off debt before passing to beneficiary.
What is the order of intestate succession if there is no surviving spouse?
- Issue
- Parents
- Siblings
- Grandparents
- Aunts and Uncles
- Step-kids
- Next of kin
- Parent in laws
- Sibling in laws
- Escheat
How are issue of the same degree distributed in intestate succession?
Take ‘per capita’ starting at the first level where there is a living being.
What is strict per stirpes distribution?
Distribution at the first level so long as there is issue.
How are adopted children treated in intestate succession?
Adopted kids are treated as natural kids.
What is equitable adoption?
Parties hold out as parent/child.
Under what conditions are stepkids/foster kids treated as adopted?
- Relationship began during minority
- Continued throughout parties’ life
- Established by clear and convincing evidence that they would have been adopted but for a legal barrier
What are the parental rights of non-marital kids in a domestic partnership?
Non-birthing parent is a parent if child is born during domestic partnership, named on birth certificate, or makes voluntary promise to pay child support.
What are advancements in the context of intestate succession?
If inter vivos down payment is made by intestate to heir apparent, same result as satisfaction.
What are the requirements for a gift to be considered an advancement?
- Intestate declares in writing that gift is advancement
- Heir acknowledges gift as advancement
What happens in the case of simultaneous death?
Devisee deemed to predecease T; if joint tenants, sever JT and each get half.
What happens to community property in the case of simultaneous death of spouses?
Community property and qualified community property divided in half.
What is the requirement for an heir to take in the case of simultaneous death?
Heir must survive for 120 hours to take.
What happens to an omitted child?
If born after testamentary instruments executed and not provided for, child will get intestate share plus share of assets in trust.
What are the exceptions for omitted children?
- Omission intentional on face of instrument
- T had a child and transferred assets to parent of omitted child
- Child provided for outside of testamentary instrument
What happens to an omitted spouse/domestic partner?
Same as child, but go through CP/QCP rules.
What are the exceptions for omitted spouses/domestic partners?
- Omission intentional
- Provided for in alternative
- Spouse signed waiver
What is a waiver in the context of omitted spouses?
Voluntary relinquishment of known right whether signed before or during marriage.
What are the requirements for a waiver to be valid?
- Waiver in writing
- Full disclosure of decedent’s finances
- Independent counsel by waiving spouse
What is the consequence if a waiver is unconscionable?
No enforceability.
What is the consequence of homicide in succession?
Requires conviction or probate court determines guilt by preponderance of evidence; killer deemed to predecease.
What is the effect of elder abuse on succession?
Bans the abuser from inheriting.
What is a no contest clause?
Enforced unless beneficiary brings contest with reasonable cause on grounds of forgery, revocation, or invalid transfer.
What are gifts causa mortis?
Gifts made in contemplation of imminent death.
What are the delivery requirements for gifts causa mortis?
- Actual delivery
- Symbolic delivery
- Constructive delivery
What is symbolic delivery?
Something representative of property is given to donee.
What is constructive delivery?
CL: key providing access to corpus; Mod: donor has done everything possible to effectuate delivery & no fraud or mistake.
What are the three essential elements in the creation of a valid trust?
- Property
- Beneficiary
- Trustee
Additional elements include intent, creation, and valid legal purpose.
What is the role of the trustee in a trust?
The trustee administers the trust for the benefit of the beneficiaries and can be appointed by the court if absent.
What must be demonstrated for the intent to create a trust?
There must be a present manifestation of intent; precatory words alone are not enough.
What happens if a trust is created for an illegal purpose?
The illegal part may be excised; if impossible, the trust is invalidated at inception.
What is a discretionary trust?
A trust where the trustee has sole and absolute discretion to determine how much to pay the beneficiary.
What is a spendthrift trust?
A trust that prevents the beneficiary from voluntarily transferring future payments and protects from creditors.
What is the duty of loyalty in trust administration?
The trustee must administer the trust solely for the benefit of the beneficiaries, prohibiting self-dealing.
What is a support trust?
A trust requiring the trustee to use only as much income or principal as necessary for the beneficiary’s health, support, maintenance, or education.
What is an honorary trust?
A trust with no ascertainable beneficiary that confers no substantial benefit to society but serves the settlor’s goal.
What is a constructive trust?
A trust imposed to prevent fraud or unjust enrichment, applicable in cases of self-dealing or fraud.
What are the requirements of a charitable trust?
Must confer substantial benefit on society and meet the same requirements as a private express trust.
What is a ToTten trust?
A tentative bank account trust naming a beneficiary who takes whatever is left in the account at the grantor’s death.
What is the major difference between revocable and irrevocable trusts?
Revocable trusts can be revoked by the settlor if expressly reserved, while irrevocable trusts generally cannot be revoked.
What is the ‘Duty to Invest’ in trust administration?
Trustees must invest in accordance with state law, prudent person test, or Uniform Prudent Investors Act.
Fill in the blank: A _______ trust is implied in fact based on the presumed intent of the parties.
resulting
What are the duties of a trustee regarding trust property?
- Duty to collect/protect property
- Duty to maintain marketability of property
- Duty to keep trust property productive.
What is the liability of a trustee to third parties under contract law?
Trustees can be sued in personal capacity but may receive indemnification from the trust.
What income does a life tenant receive from a trust?
Cash dividends, interest income, and net business income.
What expenses does a remainderman pay in a trust?
Principal of loans and major repairs/improvements.
What is the ‘Duty to Earmark’ in trust administration?
Trustees must ensure that trust property is clearly designated; failure to do so can result in personal liability.
What happens to a trust if all beneficiaries and the settlor consent to its termination?
The trust may be terminated.
What is a semi-secret trust?
A trust where a gift is made to a person to hold as a trustee without naming a beneficiary, resulting in a resulting trust.
