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Bar Prep > Wills & Trusts > Flashcards

Wills & Trusts Flashcards

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1
Q

Testator’s Signature

A

Will must be in writing and signed by T or by someone at T’s discretion

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2
Q

Witnesses’ Signatures

A

Witnesses, both being present at the same time, must witness either T’s signature or T’s acknowledgement of the instrument as his will

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3
Q

Witness Signatures for Deaths after January 1, 2009

A

Can overcome invalid witnessing requirements with clear and convincing evidence that T intended the instrument to be their will

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4
Q

Interested Witnesses

A

There’s a presumption of undue influence for those taking gifts exceeding what they’d get under intestacy

Appointment as executor or trustee doesn’t make someone an interested W

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5
Q

Holographic Wills

A

Don’t need witnesses

Requires T’s signature and all material provisions to be in T’s handwriting

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6
Q

Undue Influence - Three Types

A

Common law presumption
Standard
Statutory

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7
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; &
3) The gift is an unnatural bequest that favors the bene

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8
Q

Undue Influence - Statutory

A

Instrument prepared by fiduciary who takes the gift

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9
Q

Undue Influence - Standard

A

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

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10
Q

Capacity - Insane Delusion

A

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

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11
Q

Fraud in the Execution

A

T is defrauded as to the nature or content of what T is executing

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12
Q

Fraud in the Inducement

A

False representations made to get T to give a gift one way and not another

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13
Q

Mistake in the Execution

A

T mistakenly thinks she’s signing something else

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14
Q

Mistake in the Inducement

A

T’s will names the wrong bene or makes the wrong gift due to an accidental omission or addition

Mistake and alternative disposition must appear on the face of the instrument

But can use clear and convincing extrinsic evidence to establish mistake and actual intent to reform the will

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15
Q

Revocation Methods

A

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

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16
Q

Revival of a Revoked Will

A

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

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17
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 allowed

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

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18
Q

Codicil

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 parts of the will are republished by the codicil

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19
Q

Integration

A

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

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20
Q

Incorporation by Reference

A

1) The writing is in existence as of the date 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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21
Q

Acts of Independent Significance

A

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

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22
Q

Interpreting Wills - Extrinsic Evidence

A

Admissible to explain any ambiguities in the will

Inadmissible to show a provision has a meaning to which it isn’t reasonably susceptible

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23
Q

Specific Legacy

A

Gift of a particular item

24
Q

General Legacy

A

Gift of general economic benefit

25
Q

Increase/Accretion

A

When the value of a specific gift increases, the increase goes to the bene of the gift

26
Q

Ademption - General

A

Occurs when the specific gift identified in the will is no longer there when T dies

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

27
Q

Ademption by Extinction

A

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

28
Q

Ademption by Satisfaction

A

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

29
Q

Lapse & Anti-Lapse

A

If bene predeceases T, the gift lapses and falls into the residue

Anti-lapse saves the gift if 1) the deceased bene is T’s kindred or kindred of T’s spouse/partner; and 2) the decease bene leaves surviving issue

If anti-lapse applies, the gift goes to the bene’s surviving issue

30
Q

Simultaneous Death

A

In the case of a simultaneous death, the bene is deemed to predecease T

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

31
Q

Intestate Succession

A

Spouse receives CP and:

1) 100% of SP if no issue, parent, sibling, or issue of deceased sibling
2) 50% of SP if one issue, parent, sibling, or issue of deceased sibling
3) 1/3 of SP if more than one issue or issue of deceased sibling

Lineal descendants take per capita by right of representation

32
Q

Pretermitted Spouses

A

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

33
Q

Pretermitted Children

A

Child born after execution of the will/T didn’t know of child’s existence gets intestate share of SP unless 1) omission intentional; 2) child provided for by other gifts/transfers outside the will; or 3) T left the estate to the omitted child’s parent

34
Q

Bars to Beneficiary’s Succession

A

Intentionally kills T
Elder abuse of T
Unsuccessful will contest if the will has a no contest clause

35
Q

Trust Elements

A

1) Settlor or trustor;
2) Trustee;
3) Trust property;
4) Delivery of property to trustee;
5) Intent to create a trust;
6) Beneficiaries;
7) A valid trust purpose

36
Q

Secret Trusts

A

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

37
Q

Semi-Secret Trusts

A

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

Trust fails and results in a resulting trust

38
Q

Charitable Trusts

A

Purpose of trust is to benefit the public

Rule against perpetuities not violated if shifting executory interest between charities

39
Q

Cy Pres

A

Charitable gift as specified can’t be completed

If gift fails, property passes to settlor’s successor or transfer the gift to a related charity

40
Q

Spendthrift Trusts

A

Bene can’t alienate her interest in the trust

Assignee/creditor can’t compel trustee to pay

Doesn’t apply once trustee pays/distributes assets to bene

Exceptions - 1) claims of dependents; 2) gov’t claims; 3) suppliers of necessities

41
Q

Discretionary Trusts

A

Trustee has complete discretion whether to pay or withhold payments to bene

Before trustee exercises discretion, creditors can’t reach trust

After trustee elects to exercise discretion, if trustee has notice of assignment or attachment, must pay creditor unless there are spendthrift provisions

42
Q

Support Trusts

A

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

Non-assignable; trustee doesn’t pay creditors even with notice of assignment or attachment

43
Q

Termination of Trust by Settlor

A

Can almost always terminate or revoke a trust so long as trust is revocable

44
Q

Termination of Trust by Beneficiaries

A

Allowed if all benes consent and the termination won’t interfere with a material purpose of the trust

45
Q

Failure of an Express Trust

A

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

46
Q

Fiduciary Duties of a Trustee - Delegation

A

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

47
Q

Fiduciary Duties of a Trustee - Duty to Earmark

A

Trustee can’t commingle trust property with personal property

Title the assets “T as trustee of the ABC Trust”

48
Q

Fiduciary Duties of a Trustee - 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 trustee’s diligence and efforts

Skill relates to trustee’s capabilities

Caution is the element of conservatism in managing the trust

49
Q

Fiduciary Duties of a Trustee - Duty of Prudence/to Diversify

A

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

50
Q

Fiduciary Duties of a Trustee - Duty to Make Trust Property Productive

A

Yes

51
Q

Fiduciary Duties of a Trustee - 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

52
Q

Fiduciary Duties of a Trustee - Duty to Act Impartially

A

Must act impartially toward both the income and principal beneficiaries

53
Q

Fiduciary Duties of a Trustee - Duty to Administer the Trust According to the Terms

A

Yes

54
Q

Fiduciary Duties of a Trustee - Duty to Allocate Income

A

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

Stock and capital gains to principal

Insurance proceeds to principal unless from business income loss

Patents, copyrights, royalties, leases: 10% to income, 90% to principal

55
Q

Fiduciary Duties of a Trustee - Duty to Allocate Expenses

A

Ordinary expenses - all to income

Trustee/attorney/accountant and other compensation - 1/2 to each

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

56
Q

Remedies for Breach of Fiduciary Duty

A

Surcharged for losses
Can’t offset losses with gains
Trustee may be removed

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