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Select Topics II > Wills & Trusts > Flashcards

Wills & Trusts Flashcards

1
Q

Will Execution

A

1) Will must be signed by T or someone at T’s discretion
2) Ws, at same time, must witness T’s signature
2a) Invalid witnessing requirement can be overcome with clear and convincing evidence that T intended this to be the Will

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2
Q

Holographic Will

A

Don’t need Ws if T’s signature and all material positions are in T’s handwriting

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3
Q

Undue Influence - Common Law Presumption

A

1) Bene is in a confidential relationship to T;
2) Bene participates in any way in procuring the gift; and
3) The gift is an unnatural bequest that favors the bene

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4
Q

Undue Influence - Statutory

A

Instrument prepared by fiduciary who takes gift

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5
Q

Undue Influence - Standard

A

1) There was influence exerted on T;
2) The effect of the influence was to overpower the free will and mind of T; and
3) The product of the influence was a will which wouldn’t otherwise have been exercised but for the influence

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6
Q

Insane Delusion

A

But for the insane delusion the bequest wouldn’t have been made

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7
Q

Fraud

A

In the Execution - must defraud T as to the nature of what T is signing

In the Inducement - false representations made to get T to give a gift in one way and not another

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8
Q

Mistake

A

In the character of the document

In the Inducement - mistake and alternative disposition must appear on the face of the instrument (but CA Sup. Ct. case)

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9
Q

Revocation

A

Can revoke in three ways:

1) By subsequent physical instrument;
2) By physical act; or
3) By operation of law

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10
Q

Revival of a Revoked Will

A

Will #2 revokes Will #1; Will #2 is revoked by physical act; and contemporaneous or subsequent declaration by T showing intent to revive Will #1

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11
Q

Dependent Relative Revocation

A

T revokes part or all of a will based on a mistake of fact or law

If revocation is by physical act, extrinsic evidence of mistake or intent is allowed

If revocation is by subsequent will, mistake must appear on the face of the will

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12
Q

Codicils

A

To the extent the will isn’t changed by the codicil, it’s deemed to speak as of the date of the codicil, so the unaltered part of the will is republished by the codicil

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13
Q

Integration

A

The will consists of all papers or writings actually present at the time of execution and that T intended to constitute in the will

Presence and intent are presumed when the papers are physically connected or the provisions run from one page to the next

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14
Q

Incorporation by Reference

A

1) The incorporated writing is in existence as of the date of execution of the will;
2) The will shows T’s intent to incorporate the writing; and
3) The writing is sufficiently described in the will

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15
Q

Acts of Independent Significance

A

Non-testamentary acts of T used to resolve ambiguity on the face of the will

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16
Q

Specific Legacy

A

Gift of a particular item of property distinct from all other object in T’s estate

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17
Q

General Legacy

A

Gift of general economic benefit

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18
Q

Increase/Accretion

A

The majority rule is that if the value of a specific gift increases, the increase goes to the bene of the gift

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19
Q

Ademption

A

Occurs when the specific gift is no longer there when T dies

Bene isn’t entitled to the specific gift upon T’s death

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20
Q

Ademption by Extinction

A

When the specific gift is no longer owned by T at the time of T’s death

21
Q

Ademption by Satisfaction

A

When T gives the bene a substitute gift during T’s lifetime

22
Q

Lapse & Anti-Lapse

A

If bene predeceases T, the gift lapses and falls into residue unless anti-lapse applies

Anti-lapse applies if the deceased bene 1) is kindred of T; and 2) leaves surviving issue

23
Q

Simultaneous Death

A

Simultaneous death if bene doesn’t survive decedent by 120 hours

Bene is deemed to predecease T

If all benes predecease T, all are deemed to survive the other so estate is split among their lines

If spouse dies simultaneously, 1/2 to each person’s estate

If joint tenant dies simultaneously, pro rata share to each JT’s estate

24
Q

Intestate Succession

A

Spouse receives community property and:

1) No kid/parent/issue - spouse gets 100% of separate property
2) One kid/parent/issue - spouse gets 1/2
3) More than one kid/parent/issue - spouse gets 1/3

Lineal descendants take per capita by right of representation

25
Q

Pretermitted Spouse

A

Spouse married after will executed gets intestate share of separate property unless 1) omission intentional, 2) spouse provided for by other gifts/transfers outside the will, or 3) premarital agreement

26
Q

Pretermitted Child

A

Child born after will executed/T didn’t know of child gets intestate share unless 1) omission intentional, 2) spouse provided for by other gifts/transfers outside the will, or 3) T had other kids and left their estate to the parent of the omitted child

27
Q

Bars to Beneficiary’s Succession

A

Intentionally kills T

Elder abuse of T

Unsuccessful will contest where the will has such an in terrorem clause

28
Q

Trust Formation and Validity

A

1) A settlor or trustor
2) Delivery of property to trustee
3) A trustee
4) Intent
5) Trust property
6) Beneficiaries
7) A valid trust purpose

29
Q

Secret Trust

A

1) Gift is absolute on face of will;
2) Secret agreement to hold gift in trust for benefit of another; and
3) Must prove by clear and convincing evidence

30
Q

Semi-Secret Trust

A

Gift in will to T but terms of trust aren’t apparent

This trust fails

31
Q

Charitable Trust

A

Purpose of trust is one that benefits the public

32
Q

Cy Pres

A

Charitable gift as specified can’t be concluded so the property either passes to settlor’s successor or to a related charity

33
Q

Spendthrift Tust

A

Bene can’t alienate interest in trust

Assignee/creditor can’t compel trustee to pay

Creditor can go after bene after disbursement

Exceptions to When Creditors Can Compel Trustee:

Claims of dependents, gov’t claims, suppliers of necessities

34
Q

Discretionary Trust

A

Trustee has complete discretion to pay bene or not

After trustee exercises discretion, if trustee has notice of assignment or attachment, must pay creditor unless there’s a spendthrift provision

35
Q

Support Trust

A

Trustee is required to pay only so much as is necessary for support of bene

Must be a limited amount

36
Q

Termination or Modification of Trust by Settlor/Trustor

A

Almost limitless ability so long as trust is revocable

37
Q

Termination or Modification of Trust by Beneficiary

A

Allowed if all benes consent and it won’t interfere with the trust’s material purpose

38
Q

Failure of an Express Trust

A

When an express trust fails because bene dies, equity creates a resulting trust in the settlor/settlor’s estate and the ct compels the resulting trustee to distribute the property to the settlor/settlor’s estate

39
Q

Fiduciary Duty - Delegation

A

Trustee may delegate but is still liable for delegate’s wrongful acts

40
Q

Fiduciary Duty - Duty to Earmark

A

Trustee can’t commingle trust property with own property

41
Q

Fiduciary Duty - Duty of Care

A

Trustee must manage investments as a prudent investor would, and thus must exercise reasonable care, skill, and caution

  • Care relates to the trustee’s diligence and efforts
  • Skill relates to the trustee’s capabilities
  • Caution is the element of conservatism in managing the trust
42
Q

Fiduciary Duty - Duty of Prudence/To Diversify

A

Trustee is required to make prudent investments. Prudence requires diversification and placing trust assets into investments that will maximize the value of trust assets

43
Q

Fiduciary Duty - Duty to Make Property Productive

A

Non-productive property, trustee fails to collect claims/assets, trustee fails to invest funds

44
Q

Fiduciary Duty - Duty of Loyalty to Beneficiaries

A

Trustee can’t purchase trust property for trustee’s own account or that of related persons without court approval

45
Q

Fiduciary Duty - Duty to Act Impartially

A

Must act impartially toward both the income and principal beneficiaries

46
Q

Fiduciary Duty - Duty to Administer Trust According to Terms

A

Ok

47
Q

Fiduciary Duty - Duty to Allocate Income

A

Cash to income unless capital gain, or distribution in liquidation of corp. or partnership

Stock, capital gains to principal

Insurance proceeds to principal unless from loss of business income

Patents, copyright, royalties and leases: 10% to income, 90% to principal

48
Q

Fiduciary Duty - Duty to Allocate Expenses

A

Ordinary expenses – all to income

Trustee/attorney/accountant and other compensation – ½ to each

Principal on debt, estate taxes, environmental cleanup – all to principal

49
Q

Remedies for Breach of Fiduciary Duty

A

Surcharged for losses

Can’t offset losses with gain

Trustee may be removed

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