Wills And Trusts

Front 1

Formalities for Will

Back 1

T>18

Testamentary intent

Signed

Two witnesses

Integration: pages together, or show physical connection

UPC: singed by T and notary valid w/o witnesses

Front 2

Testamentary Capacity:

Back 2

Testator must intend for a particular instrument to act as will. "This is my last will."

Front 3

Signature Before Provision for Will

Back 3

SS: Everything above signature is good.

UPC&Maj: Will valid. No place specified.

Front 4

Clause After Execution in Will

Back 4

Not valid.

Will is still valid.

Front 5

Holographic Will:

Back 5

UPC&Other States: Valid if material provisions in T’s handwriting andsigned by T.

Other States: Not allowed.

Front 6

Witnesses --Vision Tests?

Back 6

Scope of Vision for Min.= must be no impediment to visual.

Conscious Presence forUPC&Maj.=in each other’spresence, watching what each other is doing.

Front 7

Change of Domicile:

Back 7

CL: Will invalid.

UPC&Maj.: Place of execution, domicile at death, domicile at execution

Front 8

Attesting W is Beneficiary:

Back 8

Old Rule: Interest W does not deny probate, butbeneficiary loses legacy unless (i) two other disinterested attesting witnesses OR (ii)beneficiary would be an heir w/o will (BUT lesser of the two).UPC & Maj.:Old rule abolished. Interest W frequentlyraises undue influence issue though!

Front 9

Self Proved Wills

Back 9

T and witnesses signself-proving affidavit under oath

before notary public.

Affidavit recites allelements of due execution. Formalities of execution (but not capacity, lack offraud, undue influence) conclusively presumed.

Front 10

Revocation

Back 10

i) physical act ii) w/ intentto revoke

Front 11

Sufficiency Act ---With Writing

Back 11

Most States: No revocation unless cancellation crosses some of the language of the valid will

UPC&Maj.: Act anywhereok!

*No photocopy revocation

Front 12

Destruction of Valid Will:

Back 12

1) Raisespresumption that T did mutilating with intent to revoke

2) Will last seen inT’s possession, that is no longer in T’s possession at death raises presumptionT destroyed with intent to revoke.

Front 13

T asking Attorney to Revoke:

Back 13

1) Revocation must be by T's attorney

2) In T's presence

Front 14

Lost Wills Statute

Back 14

Formal proceeding where proponents have burden of proving the contents of lost will. Copy of will and one W or other "clear convincing evidence" acceptable.

Front 15

Revocation by Codicil

Back 15

Codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will.

Codicil must expressly revoke prior will. If inconsistent, later document control, thereby revoking the inconsistencies with prior document.

Front 16

Revocation of Will

Back 16

Revokes prior wills. Revokes all codicils to will.

But revocation of codicil does not revoke will.

Requires intent to revoke + burning, tearing, obliterating, cancelling, material portion of will.

Must have effect on actual language.

Front 17

Divorce

Back 17

UPC&Maj: Revokes all provisions in favor of ex spouse. Construe as if ex died.

IF remarry, spouse comes back in.*Separation does not affectrights unless agreement treated as a waiver of her rights under will.

Front 18

Revoking Part of Will:

Back 18

Can revoke a specific part of a will by physical act, but then cannot write something else in unless you reexecute will, or republish by codicil.

Front 19

Dependent Relative Revocation

Back 19

Can reinstate a specificbequest if: (1) if induced, premised on a mistake of law or fact,(2) and if the court is satisfied that but for the mistake T would never have made the revocation

*Look to see which is closer to what T would have wanted.

*COurt disregards revocation if revocation premised on mistake of law

Front 20

DRR for Previous Wills?

Back 20

SS: NEVER

UPC&Maj: Yes!

Front 21

Mistakingly Revoking Previous Will:

Back 21

1) Will 1 still exists

2) Show T wanted prior will revived

3) Will 2 was revoked by physical act

Front 22

Specific Bequest:

Back 22

Specific item of property easily identified

Front 23

Demonstrative Legacy

Back 23

Amount that tells you where gift is coming from

Front 24

General Legacy

Back 24

Amount given

Front 25

Residuary Bequest

Back 25

What's left after all gifts given

Front 26

Intestate Property:

Back 26

Partial intestacy for some reason

Front 27

Estate Insolvent

Back 27

Take from intestate property, then residuary bequest, then general legacy, then specific bequest to pay for costs.

Front 28

Ademption

Back 28

Specific bequests addend when the specific bequest is no longer present.

No ademption in UPC jx if replaced.

Ademption does not apply to demonstrative legacies.

Front 29

Specific Devise & Ademption

Back 29

UPC: Take replacement or receive (i) any balance of purchase price owed from purchaser when k is still executory at T’s death, (ii) any amount of condemnation award for taking of the property, to the extent unpaid at T’s death, (iii) any amount of fire or casualty insurance proceeds unpaid at death

CL: Only what is devised

Front 30

Stock Splits and Dividends & Ademption

Back 30

UPC: Specific devisee takes additional or other securities of the same entity owned by the testator because action initiated by entity.

Excludes: purchase options.

CL: Only what testator devised.

Front 31

Tax Shelters & Ademption:

Back 31

UPC: Specific devisee entitled to securities of another entity owned by the testator as a result or merger, consolidation, or reorganization.

CL: Only what is devised

Front 32

Mortgage & Ademption:

Back 32

UPC: specific devisee ofencumbered prop is not entitled for encumbrance to be paid unless can showintent.

CL: Entitled to receive free and clear

Front 33

Spouses Rights:

Back 33

1. Homestead (UPC gives 15k allowance in lieu ofhomestead) 2. Exempt property 3. Family allowance for maintenance of family duringadministration

*usually for testate and intestate shares

Front 34

Elective Estate

Back 34

Elective share statutes give surviving spouse a fixed fraction, typically out of a probate estate of the deceased spouse.

CL: Traditionally that fraction is one-third of the estate regardless of the length of the marriage.

UPC: More complex calculation of years married.

Front 35

Pretermitted Children:

Back 35

Child born or adopted after will executed entitled to take a claim of intestate share unless (1) intentional, (2) substantial part of estate left to parent of the pretermitted child, or (3) H provided outside the will.

Front 36

Intentional Killings:

Back 36

No rights!Acquittal is notcontrolling-only preponderance of evidence std required.

Front 37

Renunciation:

Back 37

Must be within 9 most of death. This generates a lapse issue. Renunciation makes it as if he predeceased decedent.

Front 38

Incorporating a Document:

Back 38

1. Writing must bein existence at time will was executed.

2. Will must manifest an intent to incorporate

3. Will must describe the writing sufficiently to describe the writing to permit it!

*Holographs can incorporate.

*unwritten memo for tangible property in UPC

Front 39

Latent Ambiguity:

Back 39

Looks fine, but when you go to apply it is unclear. Goes to the residuary estate.

Front 40

Ambiguity:

Back 40

Cannot present additional evidence because it violates plain meaning with extrinsic evidence.

Front 41

No Spouse--Inheritance

Back 41

1. All to issue, if any

2. If not issue, parents

3. If no issue or parents, to parents’ issue (brother/sister)

Front 42

Per Capita v. Modern Trend

Back 42

Per Capita: Equal distribution, and if someone is dead their issue's share divided equally

UPC and Modern Trend: give an equal share to all children

Front 43

What children receive? Mother? Father? Stepparent?

Back 43

Mother's children always recover.

Father's child only recovers if mother and father married, or if father had adjudication of paternity before death.

Steparent: adoption byestoppel, or agreement to adopt.

Front 44

Adopted Children

Back 44

Adopted receives from adopted parents, parents can receive from child too.

**UPC exception: remarried parent, child can receive from other parent **UPC exception: orphan adopted by close family member too

Front 45

Simultaneous Death Act

Back 45

Will: As though T survived, and B predeceased

Intestacy As thoughT survived, and heir predeceased

Insurance: as though insuredsurvived; beneficiary predeceased

Joint tenancy with right ofsurvivorship:half as though T a survived, one half as if B survived.

Front 46

Advancements in Intestate Shares:

Back 46

CL & Min: Any lifetimegift to child or decedents presumed to be advancement of intestate share, tobe taken into account at distribution of the intestate’s share.

UPC & Maj: No advancementunless (1) declared as such in contemp writing, and (2) acknowledged as such inwriting by heir.

Front 47

Testate Shares: Satisfaction

Back 47

UPC Majority: lifetime giftnot prepayment of any interest under a will unless: (i) will provides for thistreatment, (ii) testator declares in contemporaneous writing that gift is to be deducedfrom the devise or is in satisfaction of devise, or (iii) devisee acknowledgesin writing that gift is satisfaction

Front 48

Will Contests: Standing

Back 48

Any person who would take more as an heir, if there were no will or as beneficiary under prior will

Front 49

Lack of Capacity:

Back 49

Did T understand the natureof the act?

Did T know the nature andcharacter of property?

Did T know the naturalobjects of his bounty? Did T understand thedisposition he wished to make?

*Mere old age, frailty,sickness, failing memory, or vacillating judgment is not enough!

Front 50

Insane Delusion:

Back 50

1) Will product of an insane delusion having no basis of fact or reason.

2) Did delusion cause gift in will.

3) *Could say T had lucid interval.

Front 51

Undue Influence:

Back 51

Burden of proof is oncontestants to show:

1. Existence of exertion of the influence

2. Efect to overpower mind of and will of T

3. The result is a will that would not have been executed butfor influence

*mere opt, susceptibility bcof age, unnatural disposition, is not enough! *can be for agift

Front 52

Contests Clauses:

Back 52

Majority rule saysclause wont be forced against an individual (saying individual takes nothing under will if brings suit against will) so long as he had PC for his contest.

*BUT ifnuisance suit, the no contest clause is applied!

Front 53

Trusts

Back 53

Arrangementunder which trustee holds legal title to property for the benefit of abeneficiary(ies), subject to fiduciary duties, not privileged to use trust forself.

Front 54

Trust Requisites:

Back 54

(1) Creator (2) Delivers (3) Legal title of trust assets (the res) (4) To trustee (5) For benefit (6) Of beneficiary (7) With intent to create a trust (8) For a valid purpose

Front 55

Interested Witnesses for Will:

Back 55

CL: attesting W is beneficiary, could not be probated.

UPC: Will valid, but gift void.

Front 56

Contracts and Wills:

Back 56

Gift by will must be in writing.

UPC: K to make a will can be established by 1) provisions stating material provisions of k 2) an express reference in a will to the k and extrinsic evidence proving the terms of the k, or 3) a writing signed by the decedent evidencing the k.

Think: Detrimental reliance and QM

Front 57

Cy Pres in Trusts:

Back 57

1) T had general purpose indicated to give to charity

2) Court can apply property to another purpose as close as possible to the original one, rather than permit the gift to fail and become a resulting trust

Front 58

Fiduciary Duty in Trusts:

Back 58

Exercise power for terms of trust

Front 59

Discretion in Trusts

Back 59

Beneficiary cannot interfere w/ exercise of trustee's discretion unless T abuses power. What abuses power depends on discretion of trustee! Bad faith and dishonesty always breach!

Front 60

Duty of Loyalty:

Back 60

Trustee must give undivided loyalty to the trust and its beneficiaries. Cannot enter into deal with trust in her individual capacity (no self-dealing)

May not purchase trust property! Even if pays full value.

Front 61

Breach of Duty:

Back 61

1) Can set aside transaction

2) Recover the profit

3) Ratify the transaction

Front 62

Duty to Act Personally for Trusts:

Back 62

CL: Duty to do all trust admin personally

UPC: Trustee may delegate investment and management functions that prudent trustee under circumstances could delegate.

*Cannot delegate certain discretionary functions. *Must act personally in distribution of trust assets

Front 63

Duty to Protect Trust and Make Productive

Back 63

T has duty to protect trust corpus & make productive. UPIA--invest and manage trusts as prudent investor would. Take into account the purposes, terms, distribution requirements, and other circumstances of the trust. Exercise reasonable skill, care, caution. Diversity! Unless trust better served otherwise. No RC breaches!