Wills, Trusts, & Estates Flashcards
Question
Answer
What is the source of estate law?
States.
What is the minority view on wills?
A will that fails in formality may still be valid. Followed by CA.
What are nonprobate property?
(1) Inter Vivos gifts, (2) inter Vivos trusts, (3) future interests, (4) joint ownership interests with survivorship rights, (5) pay-on-death, (6) contracts,
What jurisdictional law applies for intestacy?
Personal: domicile at death.
Real: states where property is situated.
How is the share of the surviging spouse determined for intestacy?
CP: 1/2 of the CP held by the decedent; SP: 1/3rd if there are two or more, otherwise 1/2 of the deceased spouse’s property.
When does a survivng spouse inherit all separate property.
No issue, parents, or descendant’s of parents.
How is the share determined in CA for descendant’s?
Per capita share.
What is a per capita share?
Higher-level descendants receive more proportionally than lower-level descendants. E.g. Children more than grandchildren.
What are the three types of estate distribution?
Per stripes, per capita at each generation, and per capita shares.
What is the effect of no immediate issue?
(1) Parents, if not (2) siblings, if not (3) nephews & nieces, if not (5) grandparents, if not (6) aunts and uncles, if not (7) cousins, if not (8) descendants of a pre-deceased spouse [step children], if not (10) great-grandparents, if not (11) descendant’s of great-grandparents, if not (12) the state.
What does the witness need to know to sign?
Only that it is will, not the contents.
What is required for witnesses to wills?
There must be two witnesses that (1) witness the signature of the testator, (2) witness the signature of the other during the life of the testator, and (3) are not interested.
What are the formalities for an atested will?
(1) In writing, (2) signed by the testator, (3) witnessed by two competent witnesses contemporaneously with each other, (4) containing all relevant dispositions of people and property.
What is the formality for holographic wills?
In the testor’s handwriting, in CA then only the relevant provisions and their signature.
What is the non-cuptaive will?
An oral will, CA does not recognize this at all.
What are three ways of contesting a will?
(1) Failures of formality, (2) lack of intent from insanity or incapacity, (3) undue influence or duress.
What is undue influence?
(1) Actual influence, (2) overpowered mind, (3) influenced the outcome of the will.
What is not subject to intestacy?
(1) Joint tenancy, (2) trust property, (3) contractual property.
What are the parts of a trust?
(1) Grantor, (2) Settlor, (3) Trustee, (4) Beneficiary
What is a grantor?
The person granting the property.
What is a settlor?
The person establishing the trust.
What is a trustee?
A person responsible the proper maintenance and distribution of the property for the sole benefit of the beneficiaries.
What is the beneficiary?
The person for whom the trust is created.
What is equitable title for a trust?
Property that is given to the beneficiary nominated in a trust according to the trust terms.
When does intestacy apply?
When a person dies that (1) never attempted to create a will or trust, (2) failed in an attempt to create one, (3) has unassigned property beyond any instruments, and (4) a joint tenancy instrument fails.
What are the reasons for a trust?
(1) Provide for an protect trust beneficiaries, (2) flexibility of asset distribution,
What are examples of failed property instruments?
(1) Joint tenancy [JT] dies simultaneously, (2) JT intentionally & feloniously kills other JT, (3) trust fails & no will, (4) No successor or anti-lapse afterlife insurance murder or beneficiary dies, (5) POD/TOD beneficiary is dead & no anti-lapse.
What is the default intestacy rule for spouses?
Decedents 1/2 [100%] CP & if either (1) no kids, 100% SP, (2) one child or surviving grandchild, 1/2 SP or (3) >3 kids then 1/3 SP.
What is required for a trust?
(1) Trust intent, (2) identifiable corpus, (3) ascertainable beneficiaries, (4) proper purpose, (5) compliance with mechanics
What property intent is required to form a trust?
(1) to split legal and equitable title, (2) to give legal title to a trustee, and (3) to impose a fiduciary duty on the trustee in holding the title.
What is the order of kin?
Spouse - Child - Grandchildren - Parents - Siblings - Nephews/Nieces - Grandparents - Aunts/Uncles - Cousins - Great-Grandparents
What is the effect of adoption? (WT&E)
Parent-child is severed unless (1) natural parent & adopted person live together & (2) adoption by spouse of either the natural parents.
What is the effect of murder on intestacy?
The murderer is treated as being pre-deceased and their issue does not take.
What is power of appointment in estates?
An authority granted to a person enabling a designation of a new owner of property and how it will be taken.
What is ageneral power of appointment?
Donee can exercise power in favor of anyone including themselves.
What is a special appointment?
Power is exerciseable in favor of a limited class of appointees.
What is the difference between present and testamentary power?
Present is exerciseable inter vivos, testamentary upon the enactment of a will.
