Wills, Trusts, Estates

Question 1

heir

Answer 1

someone who is entitled to inherit from a decedent

Question 2

how long must an heir survive a decedent?

Answer 2

120 hours (5 days)

Question 3

decedent dies with a wife, kids, and living parents

Answer 3

Wife gets everything if the kids are all marital kids

Question 3

Decedent dies with a wife, no kids, living parent

Answer 3

wife gets first $300,000 and 3/4th of whats left

Question 4

decedent dies with a wife, but the wife has kids from another man

Answer 4

Wife gets the first $225,000 and 1/2 of whats left

Question 5

decedent dies with a wife, but decedent has kids from another woman

Answer 5

wife gets the first $150,000 and 1/2 of whats left

Question 6

when does a spouse get nothing from a decedent?

Answer 6

If they have deserted the decedent without their consent in a way that justifies legal separation

Question 7

per stirpes representation

Answer 7

kids take in equal shares and a deceased kids kid’s take their parents share

Question 8

per capita representation

Answer 8

kids take in equal shares and kids of deceased kids take in equal shares. DEFAULT UNDER THE UPC

Question 9

can a nonmarital child inherit from their father?

Answer 9

Yes, if the father acknowledges paternity, the law presumed paternity, or the court finds paternity

Question 10

when does the law presume paternity?

Answer 10

1. If a child is born during a marriage or within 300 days of divorce
2. if the father lives with the child for the first two years of his life and holds the child out as his own
3. if the father marries the mother after the child’s birth

Question 11

attested will requirements

Answer 11

1. in writing
2. signed by either the testator or someone directed to sign by the testator and in his presence
3. witnessed by the statutorily required number of people

Question 12

conscious presence test

Answer 12

testator knows that the person is nearby and is signing the will

Question 13

line of sight test

Answer 13

person must sign the will in the testators field of vision

Question 14

under the UPC can an interested witness sign a will

Answer 14

Yes

Question 15

holographic will

Answer 15

a will handwritten by the testator

Question 16

first generation holographic will requirements

Answer 16

1. establishes testamentary intent
2. entirely handwritten by the testator
3. signed by the testator’s own hand
4. dated by the testator’s own hand

Question 17

UPC holographic will requirements

Answer 17

signature and material portions of the will are in the testator’s handwriting

Question 18

harmless error rule

Answer 18

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

Question 19

when is an oral will allowed

Answer 19

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

Question 20

incorporation by reference requirements

Answer 20

1. the extrinsic document is in writing
2. the will manifests the testator’s intent to make the extrinsic document part of the will
3. the will describes the document sufficiently to permit its identification
4. the document exists when the will is executed

Question 21

how may a will be revived

Answer 21

1. by executing a later testamentary instrument expressly reviving the will
2. by physical act
3. by revoking the revocation

Question 22

testamentary capacity requirements

Answer 22

1. be 18 or an emancipated minor
2. be of sound mind

Question 23

sound mind requirements

Answer 23

1. understand the nature and extent of your property
2. the natural objects of their bounty, who’s getting their stuff
3. the will’s significance
4. how the will would dispose of the property

Question 24

undue influence

Answer 24

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

Question 25

undue influence elements

Answer 25

1. the testator was susceptible to undue influence
2. the wrong doer had the opportunity to exert undue influence
3. the wrongdoer had a motive
4. the will features an unnatural disposition of property

Question 26

will contest

Answer 26

proceeding in which someone with standing challenges a will’s validity in probate court

Question 27

no contest clause

Answer 27

purports to rescind or nullify any gift to someone who challenges a will

Question 28

who has standing to contest a will

Answer 28

someone with a pecuniary interest in the estate

Question 29

rule of convenience

Answer 29

membership to a class gift closes when the gift can be distributed (DOES NOT APPLY IF THERE ARE NO CLASS MEMBERS AT DEATH)

Question 30

steps to determine UPC spousal elective share

Answer 30

1. calculate the value of the augmented estate
2. determine the marital property portion of the augmented estate
3. multiply the value of the augmented estate by the marital property portion
4. multiply that number by 1/2

Question 31

augmented estate calculation

Answer 31

1. net probate estate
2. transfers outside probate from the decedent to the spouse or others
3. surviving spouse’s property and transfers to others

Question 32

express trust

Answer 32

settlor transfers legal title in property to a trustee and the trustee administers the property in the best interests of the beneficiaries

Question 33

requirements to create an express trust

Answer 33

1. settlor must have capacity
2. settlor must intend to create a trust
3. there must be an ascertainable beneficiary
4. there must be a trustee with duties to perform
5. an ascertainable corpus (property)
6. an ascertainable purpose

Question 34

Can the trustee be a beneficiary?

Answer 34

Yes, but only if there is another beneficiary

Question 35

discretionary trust

Answer 35

1. trustee has discretion as to the distribution of assets
2. the beneficiary cannot force distribution unless they show the trustee acted in bad faith

Question 36

Trustee’s duty of loyalty

Answer 36

1. duty to administer the trust solely in the beneficiaries interest
2. the duty to avoid self dealing
3. duty to avoid other conflict of interests