Wills, Trusts, Estates Flashcards
heir
someone who is entitled to inherit from a decedent
how long must an heir survive a decedent?
120 hours (5 days)
decedent dies with a wife, kids, and living parents
Wife gets everything if the kids are all marital kids
Decedent dies with a wife, no kids, living parent
wife gets first $300,000 and 3/4th of whats left
decedent dies with a wife, but the wife has kids from another man
Wife gets the first $225,000 and 1/2 of whats left
decedent dies with a wife, but decedent has kids from another woman
wife gets the first $150,000 and 1/2 of whats left
when does a spouse get nothing from a decedent?
If they have deserted the decedent without their consent in a way that justifies legal separation
per stirpes representation
kids take in equal shares and a deceased kids kid’s take their parents share
per capita representation
kids take in equal shares and kids of deceased kids take in equal shares. DEFAULT UNDER THE UPC
can a nonmarital child inherit from their father?
Yes, if the father acknowledges paternity, the law presumed paternity, or the court finds paternity
when does the law presume paternity?
- If a child is born during a marriage or within 300 days of divorce
- if the father lives with the child for the first two years of his life and holds the child out as his own
- if the father marries the mother after the child’s birth
attested will requirements
- in writing
- signed by either the testator or someone directed to sign by the testator and in his presence
- witnessed by the statutorily required number of people
conscious presence test
testator knows that the person is nearby and is signing the will
line of sight test
person must sign the will in the testators field of vision
under the UPC can an interested witness sign a will
Yes
holographic will
a will handwritten by the testator
first generation holographic will requirements
- establishes testamentary intent
- entirely handwritten by the testator
- signed by the testator’s own hand
- dated by the testator’s own hand
UPC holographic will requirements
signature and material portions of the will are in the testator’s handwriting
harmless error rule
a will may be deemed valid, even if it fails to conform to the formality statutes, if the proponents can show by clear and convincing evidence that the testator intended it to be his will
when is an oral will allowed
Testator must be
1. dying and know she is dying
2. an active soldier
3. an active sailor
also
3. two witnesses
4. the witnesses transcribe the oral will
incorporation by reference requirements
- the extrinsic document is in writing
- the will manifests the testator’s intent to make the extrinsic document part of the will
- the will describes the document sufficiently to permit its identification
- the document exists when the will is executed
how may a will be revived
- by executing a later testamentary instrument expressly reviving the will
- by physical act
- by revoking the revocation
testamentary capacity requirements
- be 18 or an emancipated minor
- be of sound mind
sound mind requirements
- understand the nature and extent of your property
- the natural objects of their bounty, who’s getting their stuff
- the will’s significance
- how the will would dispose of the property
undue influence
someone exercises undue control over the testator’s mind and overcomes free will, causing the testator to execute a will that they otherwise wouldn’t have
undue influence elements
- the testator was susceptible to undue influence
- the wrong doer had the opportunity to exert undue influence
- the wrongdoer had a motive
- the will features an unnatural disposition of property
will contest
proceeding in which someone with standing challenges a will’s validity in probate court
no contest clause
purports to rescind or nullify any gift to someone who challenges a will
who has standing to contest a will
someone with a pecuniary interest in the estate
rule of convenience
membership to a class gift closes when the gift can be distributed (DOES NOT APPLY IF THERE ARE NO CLASS MEMBERS AT DEATH)
steps to determine UPC spousal elective share
- calculate the value of the augmented estate
- determine the marital property portion of the augmented estate
- multiply the value of the augmented estate by the marital property portion
- multiply that number by 1/2
augmented estate calculation
- net probate estate
- transfers outside probate from the decedent to the spouse or others
- surviving spouse’s property and transfers to others
express trust
settlor transfers legal title in property to a trustee and the trustee administers the property in the best interests of the beneficiaries
requirements to create an express trust
- settlor must have capacity
- settlor must intend to create a trust
- there must be an ascertainable beneficiary
- there must be a trustee with duties to perform
- an ascertainable corpus (property)
- an ascertainable purpose
Can the trustee be a beneficiary?
Yes, but only if there is another beneficiary
discretionary trust
- trustee has discretion as to the distribution of assets
- the beneficiary cannot force distribution unless they show the trustee acted in bad faith
Trustee’s duty of loyalty
- duty to administer the trust solely in the beneficiaries interest
- the duty to avoid self dealing
- duty to avoid other conflict of interests
