Wills & Trusts (Final) Flashcards
Undue influence
- T susceptible to influence
- Opportunity to influence
- Beneficiary active in procuring disposition
- Unnatural disposition
Presume fraud/undue influence if devise is
-Drafter
-One with fiduciary relationship with T
-Care custodian w/in 90 days
-Employee of any of above
Exceptions:
–Blood relative
–Less than $5k
–Attorney consult
Incorporation by reference
- Existed at time of will
- Will shows T’s intent
- Sufficiently described
Pour over will
- Identifies trust in will
- Terms set forth in document other than will
- Trust executed before or at same time as will
Will revoked
- By physical act + intent
- By subsequent will (express or implied)
- By operation of law - (omitted child/spouse)
DRR
- T revokes 1st will
- Mistakenly believes 2nd will valid, but it isn’t
- If T knew 2nd will not valid, would not have revoked 1st
- 1st will probated anyway
Per capita - generation
- 1st generation with living
- Each living gets one share
- Shares of all deceased split equally between next living generations
Per capita - representation
- 1st generation with living
- Each living gets one share
- Share of deceased goes to his issue equally
- If deceased has no issue, goes back at that level
Strict per stirpes
- 1st generation with living or deceased with issue
- Each living or deceased issue gets one share
K to make a will, not make a will, revoke a will
Established by:
- material provisions of K in will
- Reference in will to K, and extrinsic evidence
- Writing signed by decedent
- Clear and convincing evidence
- Joint or mutual wills do not create the presumption of a K
Trust created by:
- Declaration by owner
- Transfer of property during owner’s lifetime
- Transfer by owner in will
- Power of appointment
- Enforceable promise
Validity of Trust requirements:
- Settlor’s intention
- Trust property
- Legal purpose
- Ascertainable beneficiary
- Court can appoint trustee
Resulting trust
Implied in fact; goes back to settlor's estate: Arises from: -Purpose of trust ends -Trust fails -Illegal trust -Excess corpus -Semi-Secret
Duties of Trustee
{AND I DID SLIDE}
Account and inform
Not to Delegate unless uses skill & care
Impartiality (treat all beneficiaries alike)
Due care (Investigate/Diversify)
Segregate and earmark
Loyalty- no self-dealing or conflicts of interest
prudentially Invest (statutory lists/UPIA-look at portfolio as whole; reasonable)
Defend actions and Enforce claims
Modification/Revocation
Majority: Settlor can modify or revoke only if reserved right
Minority: Settlor can modify or revoke even if not reserved
Court can modify to meet settlor intent for cy pres
