Trusts And Wills

Front 1

Types of Assets

Back 1

1. Real Property
2. Stocks and Bonds
3. Cash
4. Personal Effects
5. Business Interests

Hint 1

RSCPB

Front 2

Title to Assets

Back 2

1. Sole Ownership
2. Joint Tenancy= Skips probate.
3. Beneficiary designations= Skips probate.
4. Trusts= Skips probate b/c it is moved out of the decedent's estate if given during the grantor's lifetime, much like a gift. Basically a semi-gift. Also testamentary trusts exist, but those are subject to probate, b/c they are part of the decedent's will.

Hint 2

SJBT

Front 3

Probate Social Policy Cases

Back 3

- Hodel v. Irving= Probate rules cannot be takings under 5th Am.
- Shapira v. Union Bank= Religion is valid constraint on will.

Hint 3

HS

Front 4

Table of Consanguinity

Back 4

1. Issues= Children, Grand-children, great-grand children, then:
2. Parents, Siblings, nephews/nieces, grand-nephews/nieces, great-grand nephews/nieces
3. Grandparents, uncles/aunts, first cousins, first cousins once removed, twice removed, thrice removed
4. Great grandparents, great uncles/aunts, first cousins once removed, second cousins, second cousins once removed, twice removed, thrice removed
5. Great-great grandparents, great-grand uncles/aunts, first cousins twice removed, second cousins once removed, third cousins, third cousins once removed, twice removed, thrice removed
6. Same process for step-family
7. Escheats to state

Hint 4

IPGGGSE

Front 5

6401 (Intestate Share of Surviving Spouse or Domestic Partner)*

Back 5

(a) Spouse gets decedent's 1/2 of community property. So they get the whole share b/c the spouse already owns the other 1/2.
(b) Same is true for quasi-community property.
© For separate property,
(1) spouse gets all of it if decedent left no surviving issue, parent, sibling, or issue of deceased sibling, or
(2) spouse gets 1/2, and other half goes to (A) the only child decedent had or issue of that single deceased child or (B) if decedent leaves no issue, goes to parent(s), or the issue of either parent, (split evenly among parents) or
(3) spouse gets 1/3, and other 2/3 goes to (A) the multiple (2 or more) children of decedent, or (B) has two or more children, but only one lives, then to one living child, and the issue of the deceased child/children, or © the issue of two or more deceased children

Hint 5

CQS(NOM)

Front 6

6402 (Intestate Share of Heirs Other Than Surviving Spouse or Domestic Partner)*

Back 6

- In determining the non-spousal-shares:
(a) To the issues (1st column) equally if same degree. Those more remote are analyzed under 240 (per stirpes).
(b) No issue, then to parents equally (2nd column)
© No issue or parents, then issue of parents (brothers/sisters), equally if same degree, or under 240 if not. (2nd column)
(d) No a-c, to one or more grandparents or issue of grandparents if none survives, equally if same degree, or under 240 if not. (3rd column)
(e) No a-d, to issue of predeceased spouse, equally if same degree, or under 240 if not.
(f) No a-e, to next of kin (columns 4-5) in equal degree, but those who claim through the nearest ancestor are preferred to those claiming through an ancestor more remote. (Berger says this isn't tested).
(g) No a-f, to the parents of a predeceased spouse, or the issue of those parents. Parents get it equally. Issue get it if same degree of kinship, or under 240 if not.

Hint 6

IPSGINP

Front 7

6404 (Escheat if no taker)

Back 7

Property escheats "if there is no taker of the intestate estate under the provisions of this part" (i.e., 6401 or 6402)

Hint 7

E

Front 8

Per Stirpes

Back 8

Modern per stirpes= PC 240. (use this for exam unless told otherwise.)
Classic per stirpes= Other jdxs.
- Modern= They take the shares their dead parents would basically.
- 240 tells you to go to the first line below decedent where someone is alive. Count up everyone on that line, assign equally, then give dead people's share to the generation below, and split up their share of that dead person's share equally. So 1/3 split among brothers, one is dead, left 2 kids, each kid gets 1/6 of original estate.
- Classic approach= Start at first generational line below decedent regardless of whether anyone is alive. So going off family on pg. 5, A and B get 50% shares, even though they're both dead. Then split 50% on each side.

Hint 8

MC

Front 9

6406 (Relatives of Halfblood):

Back 9

Except 6451 (i.e., adoption that severs relationship w/ natural half-parent), relatives of the halfblooded inherit the same share they would inherit if they were of the whole blood.

Hint 9

H

Front 10

6403 (Requirement that Heir Survive Decedent)*

Back 10

(a) Must outlive decedent by 120 hours (5 days) to receive his/her estate. Must be established by clear and convincing evidence that person survived by 5 days. Does NOT apply if the application of the 120-hour req. would result in escheat of property to the state.
(b) Does not apply pre-1/1/90 deaths.
- ONLY APPLIES TO INTESTATE SUCCESSION.

Hint 10

FEI

Front 11

6407 (Unborn Relatives of Decedent)

Back 11

Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

Hint 11

B

Front 12

6450 (Circumstances for Existence of Relationship)

Back 12

A parent-child relationship exists if:
(a) Natural parents, regardless of marital status of the natural parents; or
(b) Adopting parent or parents.

Hint 12

NA

Front 13

6451 (Effect of Adoption)

Back 13

(a) An adoption severs the relationship between the adopted person and the natural parent unless:
1. The natural parent and the adopted person lived together at any time as parent or child, OR the natural parent was married to or cohabiting w/ the other natural parent at the time the adopted person was conceived and died before the adopted person's birth; AND
2. The adoption was by the spouse of either of the natural parents OR after the death of either of the natural parents.
- So you need to satisfy at least 1 from (1) and 1 from (2).
(b) Unless the adoption is a step-parent adoption (pre- or post-death of natural parent), no natural parent, nor a relative of a natural parent, except a wholeblood sibling or issue of that sibling, can inherit from a deceased adopted person.
© A prior adoptive parent and child relationship is treated as a natural parent-child relationship.

Hint 13

S(LM-SD)SP

Front 14

Transfers to Children Cases

Back 14

- Hall v. Vallandingham= Adoption severs relationship w/ natural parents generally.
- Estate of Joseph= held that the legal barrier must continue throughout their joint lifetimes and persist until death.
- Woodard= child resulting from posthumous reproduction may enjoy the inheritance rights of "issue" under the intestacy statute where there is a genetic relationship b/w the child and the decedent and the decedent consented to posthumous conception and to the support of any resulting child. MA has additional consent to posthumous conception requirement
- Hecht v. S. Ct.= For purposes of intestate succession, paternity may not be established for a child conceived after an individual's death. (OVERRULED BY 6453(B))

Hint 14

HJWH

Front 15

6454 (Foster Parent or Step Parent):

Back 15

Foster child may inherit from foster parent if:
(a) Relationship began during foster child's minority and continued through joint lifetimes of both.
(b) Establish w/ clear and convincing evidence that foster parent would have adopted foster child but for a legal barrier <that persists until the foster parent's death>.

Hint 15

RB

Front 16

6453 (Natural Parent)

Back 16

(a)"Natural parent" is established where that relationship is presumed and not rebutted by CFC 7600.
(b) Can't establish paternity after the father's death unless:
1. Court order during the father's lifetime declaring paternity
2. Paternity is established by clear and convincing evidence that the father has openly held out the child as his own
3. It was impossible for the father to hold out the child as his own (b/c he died) and paternity is established by clear and convincing evidence.

Hint 16

ND(COD)

Front 17

CFC 7600- Determining Paternity

Back 17

Mother requires proof of giving birth. Father requires (a) marriage, and child being born during marriage or w/in 300 days of termination of marriage; (b) attempted legal marriage (even if voidable), and child's birth is during attempted marriage or w/in 300 days after termination; © attempted marriage (even if voidable) and either 1. is named father on child's birth certificate with his consent or 2. is obligated to support child by written voluntary promise or by Court Order; OR (d) receives the child into his home and openly holds out the child as his natural child.

Hint 17

GF(MAA(CS)O)

Front 18

6452 (Inheritance from or through Child Born out of Wedlock)

Back 18

If a child is born out of wedlock, neither a natural parent nor a relative of that parent inherits from the child unless:
(a) The parent or a relative of the parent acknowledged the child; AND
(b) the parent or a relative of the parent contributed to the support or the care of the child.
- Remember, all of this applies solely to INTESTATE SUCCESSION

Hint 18

ACI

Front 19

6409 (Advancements)

Back 19

(a) Property is treated as an advancement against that heir's share ONLY if:
1. Contemporaneous writing by the decedent that the gift is an advancement; OR
2. The heir acknowledges in writing that the gift is to be so deducted.
(b) Valued at the time of possession or the time of decedent's death, whichever comes first.
© If the value is expressed in a contemporaneous writing, that value is conclusive.
(d) If the recipient predeceases the decedent, the property is not taken into account for the intestate share of the recipient's issue.

Hint 19

A(WA)VWP

Front 20

Managing a Minor's Property

Back 20

Guardianship (of person or of estate), custodianship (financial accounts), or trust

Hint 20

GCT

Front 21

250 (Wills, Intestate Succession, and Family Protection)

Back 21

(a) Person who feloniously and intentionally kills decedent cannot inherit:
1. Any property interest or benefit under will, and any nomination as executor, trustee, guardian, conservator, or custodian made by will or trust. (don't need to know about power of appointment stuff)
2. Any property by intestate succession
3. Any of the decedent's quasi-community property that killer as spouse would inherit under 101/102.
(b)(1) The property interest or benefit in (a)(1) passes as if the killer had predeceased the decedent and Section 21110 (normally under will or trust, if beneficiary predeceases testator/trustor, passes to beneficiary's issue, but not in this murder scenario) does not apply. This section does NOT apply to intestate right of representation.

Hint 21

K(WIQ)P

Front 22

251 (Joint Tenancies)

Back 22

A joint tenant who murders another joint tenant, the property passes through the decedent alone, and the killer has no rights by survivorship (BUT, you keep your own property like a tenancy in common). Applies to real and personal property, joint and multiple-party accounts in financial institutions, and any other form of coronership with survivorship incidents.
- 120 hour rule does NOT apply to joint tenancy. That is an intestate succession rule.

Hint 22

JN

Front 23

252 (Life Insurance and Other Beneficiary Designations)

Back 23

A named beneficiary is not entitled to the benefit of anything if killer, it becomes payable as though the killer had predeceased the decedent. So it goes to secondary beneficiary. If no secondary is named, then it is payable to estate of decedent, and distributed through will or by intestate succession.

Hint 23

P

Front 24

253 (Cases Not Controlled by Other Provisions)

Back 24

If there is any piece of property not covered by 250-252, this section makes sure killer can't inherit that either.

Hint 24

K

Front 25

254 (Determination Whether Killing was Felonious and Intentional)

Back 25

(a) Final judgment of felonious and intentional killing is conclusive for 250-253.
(b) In absence of final judgment, court may determine if killing is intentional and felonious by preponderance of the evidence. The burden of proof is on the party seeking to establish that the killing was felonious and intentional for the purposes of this par

Hint 25

FP

Front 26

Intentional Killing Review

Back 26

- First-Degree Murder- specific intent to kill + premeditation.
- Second-Degree Murder- specific intent to kill or specific act that results in death
- Voluntary Manslaughter= intentional killing + excuse
- Involuntary Manslaughter= No intent to kill, but recklessness or gross negligence. NOT an intentional killing.

Hint 26

FSVI

Front 27

278 (Contents of Disclaimer)

Back 27

The disclaimer shall be in writing, shall be signed by the disclaimant, and shall:
(a) Identify the creator of the interest,
(b) Describe the interest to be disclaimed,
© State the disclaimer and the extent of the disclaimer.

Hint 27

WSIDD

Front 28

279 (Time Limits for Filing Disclaimer)

Back 28

(a) A disclaimer to be effective shall be filed w/in a reasonable time after the person able to disclaim acquires knowledge of the interest.
(b) In the case of just about every possible interest (see list), a disclaimer is conclusively presumed to have been filed w/in a reasonable time if it is filed w/in 9 months after the death of the creator of the interest or w/in 9 months after the interest becomes indefeasibly vested, whichever occurs later.
Didn't discuss ©-(f), but they're basically the same but for trusts and future interests.

Hint 28

R9

Front 29

Will/Trust Beneficiary Simultaneous Death

Back 29

- Janus v. Tarasewicz= The determination of legal death must be made in accordance w/ the usual and customary standards of medical practice.
- PC 21109= If there is not clear and convincing evidence as to the order of death b/w a testator and a beneficiary, the beneficiary is deemed to have predeceased the testator. If there is clear and convincing evidence that the beneficiary survived the testator by any length of time, then the beneficiary takes the gift.

Hint 29

JB

Front 30

221: Exceptions to Applicability of Chapter

Back 30

(a) 222-224 do not apply where 103 (5-day CP rule), 6211 (N/A), or 6403 (intestate 5-day rule) applies.
(b) 222-224 do not apply where (1) provision is made dealing explicitly w/ simultaneous death in a common disaster in the will; or (2) provision is made requiring one person to survive another for a stated period in order to take property in the will.

Hint 30

NN(WS)

Front 31

222: Survival of Beneficiaries

Back 31

(a) If the right of a beneficiary to succeed to any interest in the property is conditional upon surviving another person and it cannot be established by clear and convincing evidence that the beneficiary survived the other person, the beneficiary is deemed not to have survived the other person.
(b) If one of two or more beneficiaries would have been entitled to the property if he or she had survived the others, and it cannot be established by clear and convincing evidence that any beneficiary survived any other beneficiary, the property shall be divided into as many equal portions as there are beneficiaries and the portion of each beneficiary shall be administered or distributed, or otherwise death with, as if that beneficiary had survived the other beneficiaries.

Hint 31

CC

Front 32

223: Joint Tenants

Back 32

(b)If both holders of joint tenancy die w/out clear or convincing evidence that one survived the other, shall be administered with one-half as if one joint tenant had survived and one-half as if the other joint tenant had survived.
© If there is more than 2 JTs, and all die w/out clear and convincing evidence of order of survival, the property held in JT shall be divided into as many portions as there are joint tenants and the share of each joint tenant shall be administered as if that JT had survived the other JTs.

Hint 32

HD

Front 33

224: Life or Accident Insurance

Back 33

If insured and beneficiary died, and it cannot be established by clear and convincing evidence who died first, will be administered as if insured survived beneficiary, (except if the policy is community or quasi-community property of the insured and the spouse of the insured and there is no alternative beneficiary except the estate or personal rep. of the insured, the proceeds shall be distributed as community property under 103.)

Hint 33

I(C)

Front 34

103: Effect on Community and Quasi-Community Property Where Not Clear One Spouse Survived the Other

Back 34

If a husband and wife die leaving community or quasi-community property and it cannot be established by clear and convincing evidence that one spouse survived the other by at least 5 days:
(a) One-half of the comm. and quasi-comm. property shall be administered as if one spouse had survived and as if that half belonged to the spouse.
(b) The other half as if the other spouse had survived and as if that half belonged to that spouse.

Hint 34

N(HH)

Front 35

Validity of a Will Checklist

Back 35

1. Testamentary Capacity= Legal (PC 6100) and Mental (PC 6100.5)
2. Testamentary Intent= Words have testamentary meaning. Document intended to be a will/codicil (modification(s) of will). Based on facts of case.
3. Formalities= Witnessed will (PC 6110) and Holographic will (PC 6111)

Hint 35

CIF

Front 36

6100: Legal Capacity (Persons who may make a will)

Back 36

(a) 18 or over, and of sound mind.
(b) Conservator can make will for conservatee w/ court order, BUT a will made by a mentally competent conservatee > conservator. (DONT NEED TO KNOW)

Hint 36

ASC

Front 37

6100.5: Mental Capacity (persons not mentally competent to make a will)

Back 37

(a) Not mentally competent if either:
1. Does not have sufficient mental capacity to be able to
(A) Understand the nature of the testamentary act (do you know what you're writing?),
(B) Understand and recollect the nature and situation of the individual's property (do you know what you own/ you are giving away), OR
© Remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will (do you know who/what your relations are?).
- Measured at time of EXECUTION (i.e., when the will was written)
2. Suffers from a mental disorder w/ symptoms incl. delusions or hallucinations that result in the person devising property in a way which they would not have done otherwise.
(b-c) Don't worry.

Hint 37

N(C(UPR)ED)

Front 38

Attorney Capacity Test

Back 38

Attorney must test capacity:
1. At time testator requests the will be drawn
2. At time testator executes the will

Hint 38

RE

Front 39

Relevant factors for determining lack of capacity

Back 39

1. Conduct of testator
2. Behavior of testator
3. Conversations w/ testator
4. Testator's appearance
5. Pre- and post-execution behavior
6. Physician testimony
7. Attorney testimony

Hint 39

CBCAPPA

Front 40

Capacity Cases

Back 40

- Estate of Wright= Eccentricities do not equal incapacity. Pre- and post-execution testimony irrelevant if execution testimony clear establishes capacity.
- Wilson v. Lane= Similar to Wright. Eccentricities do not = incapacity.
- In re Strittmater= Court held insane delusion to give whole estate to feminist org. Probably decided wrong.
- Honeman= Guy who as result of surgery starts having insane delusions about his wife going to great lengths to cheat on him. Best example of incapacity.

Hint 40

WWSH

Front 41

Testamentary Intent

Back 41

1. Words, in written format, that regard distributing gifts and/or naming beneficiaries at death.
2. Naming executors, guardians, or trustees in a written instrument.
3. Words of revocation.
- Any combination of those 3 show a testamentary intent to create a will or codicil.

Hint 41

DNR

Front 42

Fraud/ Undue Influence Cases

Back 42

- Latham v. Father Devine= Where a testator is prevented from executing a new will in favor of an intended beneficiary by the fraud, duress, or undue influence of a present beneficiary or heir, the property intended to go to the new beneficiary will pass to the present beneficiary subject to a constructive trust in favor of the intended beneficiary. Rare example of fraudulent prevention.
- Lipper v. Weslow= Undue influence is shown when such control was exercised over the mind of the testator so as to overcome his free agency and free will and to substitute the will of another so as to cause the testator to do what he would not otherwise have done but for such control.
- In re Will of Moses= A presumption of undue influence arises when an attorney with whom the testator had a continuing fiduciary duty is a beneficiary under the will, which is not necessarily overcome simply b/c the will was actually drawn up by an independent att'y with whom the testator consulted on his or her own.

Hint 42

LLM

Front 43

Grounds for Throwing Out a Will

Back 43

1. Fraud
2. Undue Influence
3. Mistake
4. Lack of Capacity
5. Failure to Follow Formalities

Hint 43

FUMCF

Front 44

3 Types of Fraud

Back 44

1. Fraud in the execution= easiest to spot. never on an exam b/c it is too easy. material misrepresentation about the drafting/execution of will. More common is that just one term in the will is changed w/out permission.
2. Fraud in the inducement= material misrepresentation of facts to testator, testator relies on the info, and drafts the will based on that misrepresentation.
3. Fraudulent prevention of executing will or in making them change the document.

Hint 44

EIP

Front 45

6401: Duress, menace, fraud, or undue influence; effect on executor

Back 45

The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence.

Hint 45

F

Front 46

Undue Influence Factors

Back 46

1. Motive (most common is financial- wasn't in will originally or didn't get large enough gift in original will)
2. Unnatural Distribution (wasn't in scope of what you'd consider an expected distribution- like a distant relative or neighbor or org. pops up)
3. Opportunity and access (proximity. viable that influencer had chance to be alone w/ testator around the time of execution. Access- keys, etc. Inordinate amount of time spent w/ testator. Place of living in relation to testator.)
4. Susceptibility (age- too old or young, health- need for caretaker/nurse, which also shows opportunity/access, intelligence- do you know where/how much your money is, business experience- do you know what's happening with your money/savvy)
5. Confidential Relationship
6. Active Participation
7. (PC 21350) invalidates any bequest to a lawyer who drafts the will for a testator unless the lawyer is related by blood, or marriage, or is cohabiting with the testator, or is a registered domestic pa

Hint 46

MUOSCAA

Front 47

Three Types of Mistake

Back 47

1. Mistake in Execution
2. Mistake in Inducement
3. Mistake in Describing Person/Property

Hint 47

EID

Front 48

Mistake Cases

Back 48

- Mahoney v. Grainger= A will duly executed and allowed by the court must, under the statute of wills, be accepted as the final expression of the intent of the person executing it.
- Estate of Russell= When an uncertainty arises upon the face of a will, it cannot always be determined whether the will is ambiguous or not until the circumstances surrounding the writing of the will are first considered.
- In re Pavlinko= A court may not rewrite a clear and unambiguous will even for the purpose of implementing the obvious intentions of the testator.

Hint 48

MRP

Front 49

Witness Will Components Generally

Back 49

1. Identify family
2. Identify and designate an executor (not required), could also put in guardian provision for children. If no executor named, anyone can petition to become executor at probate.
3. Make gifts to beneficiaries and/or charities.
4. Testator signs the will
5. Witnesses witness the execution. CA requires 2.

Hint 49

FEGSW

Front 50

Types of Gifts

Back 50

1. Specific Gift= Gift of any particular item of property owned by the testator which is distinct from all other objects in the estate. Use words of identification (designating specific account # or share certificate or address of real property) or the object "my" in front of the property (my house, my car, my stamp collection, etc.)
- Ademption= A gift that is not there at time of death, but it is named in the will.
2. General Gift= Gift of general economic benefit payable out of the general assets of the estate. Usually considered cash gifts b/c the amount of cash can be taken from anywhere in the estate.
3. Residual Gift= What is left in the estate after you have segregated out specific gifts and general gifts. If no beneficiary to residue is named, then all residue is passed through intestate succession.

Hint 50

SGR

Front 51

PC 21120 (Giving some effect to every expression; Avoidance of intestacy)

Back 51

The words of an instrument are to receive an interpretation that will give every expression some effect. Preference is to prevent intestacy or failure of a transfer, rather than one that will result in an intestacy or failure of a transfer.

Hint 51

IP

Front 52

PC 6110 (Witnessed Will)*

Back 52

1. Be in writing
2. Signed by either (1) testator, (2) in the testator's name by some other person in the testator's presence and by the testator's direction (and testator must sign their name to what they are doing), or (3) by a conservator pursuant to a court order.
3. Shall be witnessed by at least two persons, each of whom are (1) present at the same time (joint presence), witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will, and (2) understand that the instrument they sign is the testator's will.
4. If a will was not executed in compliance w/ #3, the will shall be treated as if it was executed in compliance w/ #3 if the proponent of the will (executor) establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will.
- #4 is effective January 1, 2009. Does not apply to people who died before 1/1/09.

Hint 52

WS(PD-C)W(J(SA)U)E(C-E)

Front 53

Joint Presence Tests (6110(a)(3))

Back 53

- Old rule= Line of Vision Test= Had to appear that the two witnesses and the will were within the testator's line of vision at the time the testator executed the will.
- New rule= Conscious Presence Test= Satisfied if the witnesses are within the range of any of the Testator's senses when he does 1 of the 3 actions (signature, acknowledgment of signature, or acknowledgement of will).
- The witnesses do not have to sign in the presence of the testator or each other, just need to sign it before the testator dies, and the #3 test is satisfied.

Hint 53

LC(SAA)N

Front 54

PC 6112 (Witnesses; Interested Witnesses)*

Back 54

(a) Any person generally competent to be a witness in court may act as a witness to a will. (Don't have to be 18, but that's preferred)
(b) A will is not invalid b/c the will is signed by an interested witness.
© Unless there are at least 2 other witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption affects the burden of proof. The presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.
(d) If a gift fails b/c of ©, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. This statute does not affect the law that applies where it is established that the witness produced a devise by duress, menace, fraud, or undue influence.

Hint 54

CIPI

Front 55

PC 6111 (Holographic Will)

Back 55

(a) A will that does not comply w/ 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
(b) If a holographic will does not contain a statement as to the date of its execution and:
(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.
(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.
© Any statement of testamentary intent contained in a holographic will may be set forth either in the testator's own handwriting or as part of a commercially printed form wil

Hint 55

HD(IC)I(HP)

Front 56

Holographic Will Cases

Back 56

- Estate of Williams= The document was a valid holographic will where the name and address of the testator appeared at the top of the document in block lettering, but had no other signature. The name at the top was a valid signature.
- Kimmel's Estate= An informal document evidencing intent of a conditional gift and an intent to execute may serve as a testamentary document.

Hint 56

WK

Front 57

6120 (Revocation by Subsequent Will or Act)

Back 57

A will (complete) or any part thereof (partial) is revoked by any of the following:
(a) A (valid) subsequent will (or codicil) which revokes the prior will or part (of the prior will) expressly or by inconsistency.
(b) Being burned, torn, canceled, obliterated, or destroyed, with the (simultaneous) intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.

Hint 57

R(EI)P(T-PD)

Front 58

6121 (Revocation of Will Executed in Duplicate)

Back 58

A will executed in duplicate or any part thereof is revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.
- Copies are NOT duplicate originals. Do what you want to copies, it has no effect on the validity of the original will.

Hint 58

D(T-PD)C

Front 59

6124 (Presumption that Will Destroyed with Intent to Revoke)

Back 59

If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.
- Rebuttable

Hint 59

P

Front 60

Revocation Cases

Back 60

- Phifer= Phifer Rule= For new gifts, look at it like a potential holographic codicil. Is it a valid holographic codicil? Capacity, intent, formalities. If all three or met, then the gift is also valid. Take the revoking language off of the will and analyze it as its own language to see if gift is effective.
- Thompson v. Royall= Revocation of a will by cancellation is not accomplished unless the written words of the document are mutilated or otherwise impaired.

Hint 60

PT

Front 61

Dependent Relative Revocation Elements

Back 61

1. A valid testamentary instrument
2. Testator's act of revocation upon the mistaken belief that another disposition is valid.
3. The alternative disposition must be ineffective (In other words, the revocation is not absolute, but is relative and dependent upon the validity of the alternative disposition).
4. In order to cancel the revocation, the Court must determine if this result would be consistent with the testator's probable intent. The court thus acts like the revocation never happened, and the original valid will/codicil is upheld.
(In short, new will fails, old will could be upheld)

Hint 61

VAIC

Front 62

2 most common DRR scenarios

Back 62

1. When a testator revokes a will upon the belief that a new will is valid, but for some reason, the new will is invalid; a revocation can be cancelled if probating the revoked will, will carry out the testator's probable intent, more closely than letting the property pass by intestate succession.
2. When a testator revokes a specific or general gift upon the belief that a diff. specific or general gift is valid, and the alternative gift turns out to be invalid, the revocation can be cancelled if restoring the original specific or general gift would carry out the testator's probable intent more closely than having the original gift fail and the beneficiary receive nothing.
- Estate of Alburn= Where a will is mistakenly revoked in the belief that an earlier revoked will would be revived, the doctrine of DRR may be applied to revive the mistakenly revoked will.

Hint 62

NG- A

Front 63

PC 6123 (revival statute)

Back 63

(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator's contemporary or subsequent declarations, that the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed.
(b) If a second will, which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect. (no extrinsic evidence)

Hint 63

IT

Front 64

DRR v. Revival

Back 64

- DRR= mistake, 2nd will is invalid.
- Revival= no mistake, revocation of will 1 successful by valid 2nd will, which is then also revoked by (a) physical act or (b) a 3rd will, causing first will to take effect again.

Hint 64

MN

Front 65

PC 6122 (a-c) (Dissolution or Annulment of Marriage; Provisions Revoked; No revocation by other change in circumstances)

Back 65

(a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:
(1) Any disposition or appointment of property made by the will to the former spouse.
(3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator's remarriage to the former spouse.
© In case of revocation by dissolution or annulment:
(1) Property prevented from passing to a former spouse b/c of the revocation passes as if the former spouse failed to survive the testator.
(2) Other provisions of the will conferring some power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator.

Hint 65

D(DN)RD(P)

Front 66

PC 6122 (d-f) (Dissolution or Annulment of Marriage; Provisions Revoked; No revocation by other change in circumstances)

Back 66

(d) Dissolution or annulment means any dissolution or annulment which would exclude the spouse as a surviving spouse w/in the meaning of Section 78. A decree of legal separation which does not terminate the status of husband and wife is not a dissolution for this section.
(e) No change of circumstances other than as described in this section revokes a will.
(f) Does not apply to dissolutions/annulments before 1/1/85.

Hint 66

LNE

Front 67

PC 6122.1 (Effect of Termination of Domestic Partnership after Execution of Will)

Back 67

(a) Unless the will expressly provides otherwise, if after executing a will the testator's domestic partnership is terminated, the termination revokes all of the following:
(1) Any disposition or appointment of property to the former domestic partner.
(3) Any provision of the will nominating the former domestic partner as executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked solely by this section, it is revived by the testator establishing another domestic partnership with the former domestic partner.
© In case of revocation by termination of a domestic partnership:
(1) Property prevented from passing to a former domestic partner b/c of the revocation passes as if the former domestic partner failed to survive the testator.
(2) Other provisions of the will conferring some power or office on the former domestic partner failed to survive the testator.
(d) Applies only to wills executed on or after 1/1/02.

Hint 67

T(DN)RT(P)E

Front 68

PC 5601 (Severance of Joint Tenancy)

Back 68

(a) Except (b), a joint tenancy b/w the decedent and the decedent's former spouse, created before or during the marriage, is severed as to the decedent's interest if, at the time of the decedent's death, the former spouse is not the decedent's surviving spouse. A judgment of legal separation that does not terminate the status of husband and wife is not a dissolution for purposes of this section.
(b) (a) does not sever a joint tenancy in either of the following cases:
(1) The joint tenancy is not subject to severance by the decedent at the time of the decedent's death.
(2) There is clear and convincing evidence that the decedent intended to preserve the joint tenancy in favor of the former spouse.
© Nothing in this section affects the rights of a subsequent purchaser or encumbrancer for value in good faith who relies on an apparent severance under this section or who lacks knowledge of a severance under this section
(D) incl. comm. property

Hint 68

SN(SC)SC

Front 69

PC 5600

Back 69

- Similar to 5601, except it deals w/ beneficiary designations on financial accounts.
- For any type of beneficiary designation created on an financial account that was created either before or during the marriage, if there is a dissolution or annulment and beneficiary designation is still w/ ex-spouse as beneficiary, this section removes ex-spouse as beneficiary on that account.
- Also has the same section (b) exceptions as 5601.
- Life insurance policies DO NOT APPLY, they are excepted from the statute.

Hint 69

FDEL

Front 70

PC 6130 (Incorporation by Reference)

Back 70

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
Elements:
1. Writing to be incorporated has to have been in existence at the time the will was executed.
2. Document to be incorporated must be sufficiently described in the will
3. Testator must have intended to incorporate the writing. Usually presumed if 1 and 2 are satisfied.

Hint 70

IE(ESI)

Front 71

PC 6132(a-b) (exception to 6130 that allows in a post-execution writing)

Back 71

(a) A will may refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will, except for money that is common coin or currency and property used primarily in a trade or business. A writing directing disposition of a testator's tangible personal property is effective if all of the following conditions are satisfied:
1. An unrevoked will refers to the writing
2. The writing is dated and is either in the handwriting of, or signed by (either/or- can be handwritten and not signed, or signed and not handwritten), the testator.
3. The writing describes the items and the recipients of the property with reasonable certainty.
(b) The failure of a writing to conform to the conditions described in (a)(2) does not preclude the intro of evidence of the existence of the testator's intent regarding the disposition.

Hint 71

D(WDH/SD)F

Front 72

PC 6132(c, g, h) (exception to 6130 that allows in a post-execution writing)

Back 72

© The writing may be written or signed before or after the execution of the will. It shall be given effect as if it were actually contained in the will itself, except that if any person designated to receive property in the writing dies before the testator, the property shall pass as further directed in the writing, and, in the absence of any further directions, the disposition shall lapse.
(g) The total value of tangible personal property identified and disposed of in the writing shall not exceed $25,000. If the value of an (single) item of tangible personal property described in the writing exceeds $5,000, that item shall not be subject to this section, and that item shall be disposed of pursuant to the remainder clause of the will. The value of an item that is disposed of pursuant to the remainder clause of the will shall not be counted towards the $25,000 limit described in this subdivision.
(h)(1) Tangible personal property means articles of personal or household use or ornamen

Hint 72

TET

Front 73

Incorporation by Reference Cases

Back 73

- Simon v. Grayson= Codicils can republish a will so that doc written after original will can be incorporated by reference by the codicil.
- In re Plummel's Estate= Will invalid, but codicil incorporated will, so codicil became will, and will became incorporated document.
- Clark v. Greenhalge= A properly executed will may incorporate by reference into its provisions any document or paper not so executed and witnessed if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof as the paper referred to therein.

Front 74

PC 6131 (Acts of Independent Significance)

Back 74

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether the acts and events occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.
- - Acts of Independent Significance= Another way to complete a gift in a will, except instead of using an outside writing, if the testator is referring to an event or act in their lifetime, can use that reference to complete a gift in the will. Can be something that has occurred or will occur in the future.

Hint 74

S

Front 75

Acts of Independent Significance- How to Use

Back 75

1. To Identify a Beneficiary (every one who works in my store at my death)
2. To Identify a Gift (the residence i own at my death)
3. Failed Bequest= Referring to documents w/ no independent significance after will is drafted

Hint 75

BG- F

Front 76

PC 21700 (Contracts Relating to Wills)

Back 76

(a) A K to make a will or devise or other instrument, or not to revoke, or to die intestate, if made after the effective date, can be established only by one of the following:
(1) Provisions of a will or other instrument stating the material provisions of the K.
(2) An expressed reference in a will or other instrument to a K and extrinsic evidence proving the terms of the K.
(3) A writing signed by the decedent evidencing the K.
(4) Clear and convincing evidence of an agreement b/w the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity.
(5) Clear and convincing evidence of an agreement b/w the decedent to another person for the benefit of the claimant that is enforceable in equity.
(b) The execution of a joint will or mutual wills does not create a presumption of a K not to revoke the will or wills.
© A K to make a will or otherwise made prior to the effective date of this section (2000), shall be construed under the law applicab

Hint 76

K(WEWCT)JL

Front 77

PC 21110 (anti-lapse provision)

Back 77

(a) Subject to (b), if a transferee is dead when the instrument is executed, or fails to survive the transferor (testator), the issue of the deceased transferee take in the transferee's place in the matter provided by 240. A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee's death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed.
(b) The issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary intention or a substitute disposition. A requirement that the initial transferee survive the transferor or survive for a specified period of time after the death of the transferor constitutes a contrary intention.
© As used in this section, "transferee" means a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor.

Hint 77

ICK

Front 78

PC 21111 (a-b) (common-law lapse provision)

Back 78

(a) Except (b) and subject to 21110, if a transfer fails for any reason, the property is transferred as follows:
(1) If the transferring instrument provides for an alternative disposition in the event the transfer fails, the property is transferred according to the terms of the instrument.
(2) If the transferring instrument does not provide for an alternative disposition but does provide for the transfer of a residue, the property becomes a part of the residue transferred under the instrument.
(3) If the transferring instrument does not provide for an alternative disposition and does not provide for the transfer of a residue, or if the transfer is itself a residuary gift, the property is transferred to the decedent's estate.
(b) Subject to 21110, if a residuary gift or a future interest is transferred to two or more persons and the share of a transferee fails for any reason, and no alternative disposition is provided, the share passes to the other transferee

Hint 78

F(ARE)P

Front 79

PC 21111 (c-d) (common-law lapse provision)

Back 79

(c) "All my estate" or similar language= residuary gift
(d) If failure of a future interest results in an intestacy, the property passes to the heirs of the transferor determined pursuant to 21114.

Hint 79

RH

Front 80

Lapse Questions

Back 80

- If you have a failed gift, there are two questions for the gift:
1. Was the deceased beneficiary Kindred to the Testator or Kindred to a current, divorced, or deceased spouse?
2. Did the deceased beneficiary have issue?
- Ask these two questions first. If the answer is yes to both questions, then the issue takes the deceased beneficiary's gift. If the answer is no to either, then look to 21111.

Hint 80

KIL

Front 81

21117 (Classifications on Testamentary Gifts)

Back 81

(a) A specific gift is a transfer of specifically identifiable property.
(b) A general gift is a transfer from the general assets of the transferor that does not give specific property (cash).
© A demonstrative gift is a general gift that specifies the fund or property from which the transfer is primarily to be made.
(d) A general pecuniary gift is a pecuniary gift with in the meaning of 21118 (ND)
(e) An annuity is a general pecuniary gift that is payable periodically
(f) A residuary gift is a transfer of property that remains after all specific and general gifts have been satisfied.
- Dawson v. Yucus= Where a number of beneficiaries to a gift is certain, and the share each is to receive is also certain and in no way dependent for its amount upon the number who shall survive, it is not a gift to a class but to the individuals.

Hint 81

SGDPAR- D

Front 82

Post-will, pre-death property change cases

Back 82

- Stanley v. Potter= Majority rule that if the gift isn't around, and it's specific, you don't get anything (slightly superseded by PC21133).
-

Hint 82

S

Front 83

PC 21133 (Right of Recipient of an At-Death Transfer of Specific Gift)

Back 83

A recipient of an at-death transfer of a specific gift has a right to the property specifically given, to the extent the property is owned by the transferor at the time the gift takes effect, and all of the following:
(a) Any (remaining) balance of the purchase price (together with any security agreement) owing from a purchaser to the transferor at the time the gift takes effect by reason of sale of the property.
(b) Any amount of an eminent domain award for the taking of the property unpaid at the time the gift takes effect in possession or enjoyment.
© Any proceeds unpaid at the time the gift takes effect in possession or enjoyment on fire or casualty insurance on or other recovery for injury to the property.
(d) Property owned by the transferor at the time the gift takes effect in possession or enjoyment and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically given obligation.

Hint 83

PEIF

Front 84

PC 21135 (Conditions for Treatment of Gift during Lifetime as Satisfaction of At-Death Transfer)

Back 84

(a) Property given by a transferor during his or her lifetime to a person is treated as a satisfaction of an at-death transfer in whole or in part only if one of the following is satisfied:
(1) The instrument provides for deduction of the life time gift from the at-death transfer.
(2) The transferor declares in a contemporaneous writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted.
(3) The transferee acknowledges in writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted.
(4) The property given is the same property that is the subject of a specific gift to that person.
(b) Subject to ©, for the purpose of partial satisfaction, property given during lifetime is valued as of the time of possession or of death of the transferor, whichever occurs first.
© If the value of the gift is expressed in the writing, that's conclusive
(d) Apply lapse provs. if the transferee predeceases the transfe

Hint 84

S(DCTW)VCL

Front 85

PC 21132 (At-Death Transfer of Securities)

Back 85

(a) If a transferor executes an instrument that makes an at-death transfer of securities and the transferor then owned securities that meet the description, the transfer includes additional securities owned by the transferor at death to the extent the additional securities were acquired by the transferor after the instrument was executed as a result of the transferor's ownership of the described securities and are securities of any of the following types:
(1) Securities of the same organization acquired by reason of action initiated by the org. or any successor, related, or acquiring organization, excluding any acquired by exercise of purchase options.
(2) Securities of another org. acquired as a result of a merger, consolidation, reorganization, or other distribution by the org. or any successor, related, or acquiring org.
(3) Securities of the same org. acquired as a result of a plan of reinvestment.
(b) Distributions in cash before death are not part of the transfer

Hint 85

S(IMR)D

Front 86

PC 21131 (Specific Gift Subject to Lien without Right of Exoneration)

Back 86

"A specific gift passes the property transferred subject to any mortgage, deed of trust, or other lien existing at the date of death, without right of exoneration, regardless of a general directive to pay debts contained in the instrument."

Hint 86

S

Front 87

PC 21401 (Purpose for while Shares of Beneficiaries Abate

Back 87

"Except as provided in Sections 21612 (omitted spouse) and 21623 (omitted children) and in Division 10 (commencing with Section 20100- proration of taxes), shares of beneficiaries abate as provided in this part for all purposes, incl. payment of debts, expenses, and charged specified in 11420, satisfaction of gifts, and payment of expenses on specifically devised property pursuant to Section 12002, and w/out any priority as b/w real and personal property."

Hint 87

P

Front 88

PC 21402: Order of Abatement

Back 88

(a) Shares of beneficiaries abate in the following order:
(1) Property not disposed of by the instrument.
(2) Residuary gifts
(3) General gifts to persons other than the transferor's relatives.
(4) General gifts to persons to the transferor's relatives.
(5) Specific gifts to persons other than the transferor's relatives.
(6) Specific gifts to the transferor's relatives.

Hint 88

NRGRSR

Front 89

PC 21403: Abatement within Classes

Back 89

(a) Subject to (b), shares of beneficiaries abate pro rata within each class specified in section 21402.
(b) Gifts of annuities and demonstrative gifts are treated as specific gifts to the extent they are satisfied out of the fund or property specified in the gift and as general gifts to the extent they are satisfied out of property other than the fund or property specified in the gift.

Hint 89

PA

Front 90

Two Types of Abatements

Back 90

1. No debt, but not enough money to go around, so may have partial abatement b/c you don't have enough assets.
2. Have to pay off debts, so reduce gifts.

Hint 90

ND

Front 91

Priority among creditors as to who gets paid

Back 91

1. Debts to the US or the State gov't. Including IRS. From 1/1/xx-date of death, you still have to pay income taxes. (5.35 mil. tax exemption, so gifts will not be taxed once passed unless estate is worth more than 5.35 mil.)
2. Expenses of administration (att'y fees, executor fees, appraisal fees, court costs, etc.)
3. Any obligations secured by a mortgage or deed or trust or other lien.
4. Funeral bills
5. Expenses of last illness
6. General debts (credit cards, etc.)

Hint 91

GEMFID

Front 92

PC 21610 (Share of Omitted Spouse)

Back 92

Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate, consisting of the following property in said estate:
(a) The one-half of the community property that belongs to the decedent.
(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.
© A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died w/out having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.

Hint 92

O(CQS)

Front 93

PC 21611 (Circumstances under which Spouse Receives no Share

Back 93

The spouse shall not receive a share of the estate under Section 21610 if any of the following is established:
(a) The decedent's failure to provide for the spouse in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments.
(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence. (insurance policy, bank accounts, stock accounts, etc. are examples)
© The spouse made a valid agreement waiving the right to share in the decedent's estate.

Hint 93

N(IOV)

Front 94

PC 21612 (Manner of satisfying share of spouse)

Back 94

(a) Except as provided in (b), in satisfying a share provided by this chapter:
(1) The share will first be taken from the decedent's estate not disposed of by will or trust, if any;
(2) If that is not sufficient, so much as may be necessary to satisfy the share shall be taken from all beneficiaries of decedent's testamentary instruments in proportion to the value they may respectively receive. The proportion of each beneficiary's share that may be taken pursuant to this subdivision shall be determined based on value as of the date of the decedent's death.
(b) If the obvious intention of the decedent would be defeated by the application of (a), the specific devise or gift or provision may be exempted from the apportionment under (a), and a diff. apportionment, consistent with the intention of the decedent may be adopted.

Hint 94

S(DP)D

Front 95

PC 21620 (Share of Omitted Child Born or Adopted after Execution of Testamentary Instruments)

Back 95

Except as provided in 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born, or adopted after the execution of all of the decedents testamentary instruments, the omitted child shall receive a share in the decedent's estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instrument.

Hint 95

O

Front 96

PC 21621 (Circumstances for Denial of Share)

Back 96

A child shall not receive a share of the state under 21620 if any of the following is established:
(a) The decedent's failure to provide for the child in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments.
(b) The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child.
© The decedent provided for the child by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.
- Gray v. Gray= Fact that testator had children from prior marriage doesn't affect omitted heirs statuts.

Hint 96

N(IPO)- G

Front 97

PC 21622 (Decedent's Erroneous Belief)

Back 97

If at the time of the execution of all of the decedent's testamentary instruments effective at death, the decedent failed to proved for a living child solely b/c the decedent believed the child to be dead or was unaware of the birth of the child, the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments.

Hint 97

U

Front 98

PC 21623 (Manner of Satisfying Share of Omitted Child)

Back 98

(a) Except as provided in (b), in satisfying a share provided by this chapter:
(1) The share will first be taken from the decedent's estate not disposed of by will or trust, if any.
(2) If that is not sufficient, so much as may be necessary to satisfy the share shall be taken from all beneficiaries of decedent's testamentary instruments in proportion to the value they may respectively receive. The proportion of each beneficiary's share that may be taken pursuant to this subdivision shall be determined based on values as of the date of decedent's death.
(b) If the obvious intention of the decedent would be defeated by the application of (a), the specific devise or gift or provision of a testamentary instrument may be exempted from the apportionment under (a), and a different apportionment, consistent with the intention of the decedent, may be adopted.

Hint 98

S(DP)D

Front 99

Will Substitutes

Back 99

1. Life Insurance
2. Multiple Party Bank Accounts
3. Joint Tenancies
4. Revocable Inter Vivos Trust

Hint 99

LBJT

Front 100

Key Factors in making Decisions for Life Insurance

Back 100

1. As owner of policy, can control the K and change beneficiaries as you please. They have no rights until you die.
2. Costs on policy go up as you age.
3. Purpose= To maintain a certain standard of living for your family post-death.
4. Purpose= Will make paying off creditors easier, potentially without selling off any assets from the estate. Can create an estate where there wasn't one before.
5. Cannot change the beneficiary through a will or trust. Must change it through notification to insurance company.
6. Purpose= Create a non-probate transfer.
7. If there is no beneficiary on the policy, or a pre-deceasing beneficiary with no contingency, money goes through estate through will or probate.

Hint 100

CUSCNNE

Front 101

Types of Trusts

Back 101

- Resulting Trust= An ultimately-failing private trust.
- Constructive Trust= Not a real trust. Created to prevent unjust enrichment. A remedy to fix an issue that's gone sideways.
- Purchase Money Trust= Real Estate only.
- Honorary Trust= Usually for your favorite pet. Honest to god, CA has animal trusts… Generally, they are not legal b/c animals can't enforce their rights, b/c, you know, they can't talk...
- Secret/Semi-Secret Trust= A hybrid b/w a will and a trust. They incorrectly attempt to create a trust. They intend to create part during lifetime and part in their will. It is an error or mistake. So it is a secret/semi-secret trust as to what provisions appear in the will.
- Private Trusts
- Charitable Trusts

Hint 101

RCPHSPC

Front 102

Checklist for Validity of Private Trusts

Back 102

1. Intent: Did the Trustor intend to create a Trust? Can be done orally or in writing.
2. Identifiable Corpus: Did the Trustor designate specific or identifiable property as the corpus of the Trust?
3. Ascertainable Beneficiaries: Did the Trustor designate specific or identifiable beneficiaries?
4. Proper Purpose: Is the Trust designed to effectuate some purpose prohibited by public policy?
5. Mechanics of Creation: How has the Trustor created the Trust? Was there a sufficient split of title to create a Trust? Sufficient delivery?

Hint 102

ICBPM(CSD)

Front 103

Intent to Create a Trust

Back 103

1. Timing issue: Need a PRESENT intent to create trust at time of transfer of property. Can't create a future trust-- that would be a gratuitous promise.
2. Must be manifested while the trustor owns, controls, and possesses the property.
3. Must be definitive. No, "I hope" or "I suggest". Sufficient language to show intent.

Hint 103

PCD

Front 104

Delivery Checklist

Back 104

1. Present intent
2. Must be delivered to donee. (can be constructive(delivering means of obtaining property) or symbolic (representation of property delivered)
3. Donee must accept property.

Hint 104

ID(CS)A

Front 105

Private Trust Cases

Back 105

- Hebrew U v. Nye= Can't turn imperfect gift into trust (but constructive delivery was sufficient for gift)
- Unthank v. Rippstein= A mere promise to give periodic gifts in the future will not support a finding that a trust has been established.
- Clark v. Campbell= Where beneficiaries of a noncharitible trust cannot adequately be determined, the trust fails.
- In re Estate of Fournier= An enforceable oral trust is created where clear and convincing evidence shows that the settlor intended to create it.

Hint 105

HUCF

Front 106

Two Parts in Trust Analysis

Back 106

1. Be able to identify who holds title.
2. Identify what is going into trust, and what beneficiaries are entitled to, and has trustee exercised role correctly in distributing the gifts.

Hint 106

TD

Front 107

Testamentary Trust Checklist

Back 107

1. Valid will-- 6110/6111
2. Trust terms in will
3. Trust springs out of will
4. Split in title occurs at death.

Hint 107

VTSS

Front 108

Oral Trust Cases

Back 108

- Hieble v. Hieble= SoF prevents oral trusts in the case of real estate.
- Pappas v. Pappas= Can't get away w/ setting up trust just so the property avoids a divorce case, improper purpose.
- Oliffe v. Wells= Where a will on its face shows that the devisee takes the legal title only and not the beneficial interest, and the trust is not sufficiently defined by the will to take effect, the equitable interest goes by way of resulting trust to the heirs or next of kin as property of the deceased not disposed of by his will.

Hint 108

HPO

Front 109

Secret and Semi-Secret Trusts

Back 109

Secret= Trust devises property to a person unfettered, evidence of oral understanding allowed, will create constructive trust to avoid unjust enrichment.
Semi-Secret= Trust devises property to person, but makes mention of oral conversation, but gives insufficient terms to be trust, no oral evidence, trust fails, goes to heirs at law.

Hint 109

SS

Front 110

How do Beneficiaries screw up a trust?

Back 110

1. Voluntary alienation= assigning their interest to a third party
2. Involuntary alienation= A creditor of beneficiary comes in and attaches interest to the trust.

Hint 110

VI

Front 111

Spendthrift Provisions

Back 111

- Prohibits the beneficiaries from assigning their interest in the trust at any and all times.
- Prohibits most creditors from attaching a trust, UNLESS:
1. IRS (federal or state where trust is created)
2. Any child or spousal support awards owed
3. Any creditor who supply the necessities of life (usually health care, could be shelter)

Hint 111

BC(ISN)

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Modification of Trusts Concepts and Cases

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- Doctrine of Equitable Deviation= Can change administrative and distributive terms of a trust in changed circumstances. Gives trustee a lot more power to petition court for modification.
- In re Riddell= Equitable deviation may be used to modify a trust's administrative or distributive provision or to permit the trustee to deviate from such a provision, where circumstances not anticipated by the settlor have changed and the modification or deviation will further the primary purposes of the trust and is consistent with law or policy.
- Claflin Doctrine= Permits beneficiaries to modify or terminate trust if: (1) all beneficiaries are in front of the court; and (2) there is no material purpose of the trust left to be performed. Then a court could allow beneficiaries to terminate/modify the trust
- In re Estate of Brown= An active trust may not be terminated, even with the consent of all the beneficiaries, if a material purpose of the settlor remains to be accomplished.

Hint 112

ERC(AN)B

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Charitable Trust Checklist

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1. Trust Intent
2. Identifiable corpus
3. Indefinite Beneficiaries= Actual beneficiary is the public/community. Must create a substantial benefit for society. (as opposed to specific beneficiary in private trusts)
4. Charitable Purpose (as opposed to proper purpose in private trusts)
5. Inter vivos or testamentary.

Hint 113

ICBPT

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Gov't Created Safe Harbor Charitable Trust Purposes

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1. The advancement of education. Providing for establishment or support of any type of school/libraries/museums/art galleries, or by aiding students/teachers/researchers.
2. Relief of poverty. Any kind of services, food, clothing, shelter for any low-SES community or population, any kind of donations.
3. Promotion of health care. Treatment of the sick, assistance of the disabled. Any teaching of health care. Any physical or mental care. Anything related to health.
4. Governmental Trusts. For parks, recreation, beautification of cities. For care and maintenance. Basically giving money to gov't for them to do their gov't functions.
5. Advancement of religion. Whether institutions ideas and practices which the trustor has sought to make the basis of a charitable trust are truly religious in nature. Definitely includes recognized world religions. Veganism/nudism are not religious in nature. They look for buildings, teaching materials, etc. Not much success for new religions.

Hint 114

EPHGR

Front 115

Charitable Trust Cases

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- Shenendoah Bank v. Taylor= For a charitable trust to be valid, it must provide relief for the poor or need or otherwise benefit or advance the social interest of the community. Can't be for kids to buy candy
- In re Neher= Cy Pres case. Where a will gives real property for a general charitable purpose, the gift may be reformed cy pres when compliance with a particular purpose grafted onto the general onto the general purpose is impractical.

Hint 115

SN

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Trustee Duties

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1. Duty of Care to follow trustor's instructions
2. Duty of Inquiry w/ discretionary power over distribution of income/principal
3. Duty of Loyalty
4. Duties Relating to Care of Trust Property
5. Duty to Avoid Co-Mingling of Trust and Personal-Trustee Property
6. Duty not to Delegate (except ministerial functions and experts)
7. Duty of Impartiality
8. Duty to Keep and Render Accounts
9. Duty to Diversify (to invest assets properly/make trust property productive)

Hint 116

FILCCDIAD

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Trustee Duty Cases

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- Hartman v. Hartle= A trustee breaches his duty of loyalty to the beneficiaries when he engages in self-dealing.
- In re Rothko= A trustee must refrain from placing himself in a position where his personal interest or that of a third person does or may conflict with the interest of the beneficiaries.
- Wood v. US Bank= The trustee has a duty to diversify trust assets unless there are special circumstances where not diversifying better serves the trust interests. The duty to diversify may be expanded, restricted, or otherwise altered, by the trust instrument.
- Estate of Collins= 3 rules of diversification
- Fletcher v. Fletcher= Trustees have a duty to provide complete and accurate info as to the nature and amount of the trust property to the beneficiary of the trust.

Hint 117

HRWCF

Front 118

Duties of Loyalty

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1. Duty to Avoid Self-Dealing
2. Duty to avoid Conflicts of Interest
3. Duty of Loyalty applies to ALL beneficiaries.
4. Be unselfish and undivided in their responsibilities.

Hint 118

SCIU

Front 119

No Further Inquiry Rule

Back 119

- Irrelevant in doing self-dealing if a trustee acted honestly, reasonably, and in good faith in doing that type of self-dealing. Courts do not care what the motive was, and do not care if you acted reasonably or honestly. If you do the self-dealing, you breached the fiduciary duty. You are responsible to beneficiary for profit or loss if you self-deal.
- Three permitted exceptions (both require approval before the self-dealing- still risky):
1. Approved by the settlor (trustor) in the trust document.
2. Fully disclosed to beneficiaries, who then gave their consent.
3. Go to the court, disclosure to the court what you are intending, and get the court's approval.

Hint 119

SE(ABC)

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Duties Relating to Care of Trust Property

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1. Record real estate deeds
2. Make nec. gov't filings
3. Keep valuables safe (in safety-deposit box usually)
4. Use FDIC-insured banks
5. Purchase nec. insurance
6. Make nec. repairs
7. Label assets properly
8. Avoid co-mingling

Hint 120

RGVBIRLC

Front 121

Uniform Prudent Investor Act (UPIA) Requirements

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1. Due diligence
2. Duty to diversify
3. Total Asset Management Approach
a. Can offset gains and losses
b. More trustee friendly

Hint 121

DDT(OF)

Front 122

Due Diligence Factors

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1. What were the general economic conditions at the time the trustee chose this investment? What was the market like? What was the interest rates charged by banks? What was the unemployment rate?
2. Was there any expected income to be generated by this investment?
3. Is there going to be any kind of appreciation in this type of investment? Ex. real estate, stocks. Certificate of deposit is an example of something that won't go up in value.
4. Is there any other resources available to the beneficiary? Does the beneficiary(ies) have other source(s) of income?
5. Is there any kind of liquidity with respect to the principal? You want to track the ages and potential needs of the beneficiaries. This will dictate the degree of need for liquidity.
6. Is there a need for preservation of the principal? Similar to #5. If beneficiary will need all the principal, probably shouldn't invest so much in order to preserve the corpus as best as possible.
7. How much risk do you take?

Hint 122

EEABLPR

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Collins 3 Rules of Real Estate Diversification

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- The trustee is under a duty to the beneficiary to distribute the risk of loss by reasonable diversification of investments, unless under the circumstances it is prudent not to do so.
- Second mortgages are not proper trust investments unless taking a second mortgage is a reasonable method of settling a claim or making possible the sale of property.
- Trustees should give careful attention to the valuation of the property in order to make certain that his margin of security is adequate.

Hint 123

DSV

Front 124

Duty of Accounting

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trustees have duty to present yearly accountings to the beneficiaries, which include:
1. Inventory and appraisal
2. Receipts
3. Disbursements
4. Property left on hand.

Hint 124

IRDP

Front 125

Can remove trustee from office if one of these happen:

Back 125

1. Multiple breaches of fiduciary duty
2. One very serious breach of fiduciary duty
3. Unfit for the position of trustee (mental or physical inability)-- breach is not necessary.
4. Serious conflict of interest (can be ongoing or new). Distinguish from a personality conflict. Anything that affects trustee's ability to deal w/ the trust assets.
5. Insolvency on the part of a trustee. Depends on court. If you do file bankruptcy, that is a red flag to the court that the trustee isn't good w/ investments and there is an increased risk trustee will dip into trust funds. Not conclusive, but a really big red flag.
6. Extreme hostility b/w trustee and beneficiary. Again, distinguish from a personality conflict. Only where it is clear trustee's actions are affected by hostility.
- For smaller breaches, just surcharge trustee

Hint 125

MVUCIH- S

Front 126

Co-trustees are liable for other co-trustee actions if one of these happen

Back 126

1. By participating in or approving the alleged improper conduct.
2. By improperly delegating authority to another co-trustee (i.e., if you ignore the trustor's instructions in how to share the responsibility, since the point of have co-trustees is to have joint-decisionmaking, so by delegating everything, the trustor's intentions are violated).
3. By concealing the breach or failing to take action to remedy it.

Hint 126

PDC