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126 Cards in this Set
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Probate |
Devising decedent's estate though a will or intestacy. |
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Ways to avoid probate: |
Life Insurance Irrevocable Trusts Pension Plans Joint Tenancy (ROS) Beneficiaries agreement |
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Exceptions to Testator's Intent (5) |
A. Maddox Reasonable Test B. Familial Disharmony (divorce) C. Waste (Destroying $500k tiara) D. Illegal Activity E. Vague
*Exception: If the condition is required before death, then the intent will be upheld |
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Shapira v. UNB, 5, Will Marriage Rule |
devise contingent on marrying a Jewish girl is permitted |
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Gift over/Alternative request, |
Backup option to testator’s initial devise. |
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Attorney Fiduciary Duty |
To Testator and Beneficiaries *NY, Testator only |
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Spousal Intestacy |
If testator has no children, 100% of the estate goes to the surviving spouse
With kids, $50K + 50% to spouse, 50% to kids, equally
New rule, and issues, everything to spouse |
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Deadbeat Parent Rule |
Absent parent cannot inherit from child unless incarcerated, ill, or in the military. |
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Will Advancements |
Common Law treats Intervivos gifts as advancement
UPC treats Intervivos gifts as gifts |
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Slayer statute |
Minority requires illegal homicide.
Majority requires intentional homicide.
*Both by the preponderance of evidence. |
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Intestate Distribution: |
A. English System, start with the deceased and devise until you reach a living member
B.American System, start with the first surviving generation and devise until a living member is reached
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Disclaimer, Drye v. U.S., 142, |
Rejecting a devise (does not apply to IRS or Medicare/aid) |
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Wills Act requires: |
1. Memorialized |
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In re Groffman, 153, Testator's presence |
Testator's presence is required at will signing |
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Presence Tests: State v. Casdorph, 155, |
A. Line of sight, Witness must see pen sign (See, State v. Casdorph)
B. Conscious Presence, Witness must see the signing |
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Purging statute (Estate of Morea, 165,) |
bars incentivized witnesses from signing/witnessing the will (Witness may sign and benefit from will if benefit is equal or less than intestacy.) |
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Due Execution, |
A signed and witnessed will is presumed valid (NY) |
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Summary Administration Exception, |
a court will probate an estate if the estate is smaller than $30k and uncontested |
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Attestation Clause, |
Free and voluntary signing by testator and witnesses
If a witness cannot be produced in court the court may still probate the will with one testifying witness? |
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Holographic Will |
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In re Kimmel’s Estate, 198, HW Letter |
Court held if a letter has clear intent to devise, it may be probated as a holographic will.
Signature is defined as marking of regular use and intent. |
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Ambiguity Doctrine |
If a will is unclear to its meaning, the court must look to extrinsic evidence to clarify. |
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Pre-printed HW Rule |
Generally, courts will ignore the printed words or incorporate it; but never strike the whole will. |
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Material Portions Standard AKA Surplusage Doctrine |
If the testator's beneficiaries and devises are in their handwriting, the court must probate them. |
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Altered HW Rule (In re Gonzalez , 203) |
Court must probate alterations in a HW, after execution, if the alterations are signed and in the testator's handwriting. (See, In re Gonzalez) |
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6 Method of Revocation |
A. Signed and attested codicil B. Physical destruction (witnessed?) C. Delegated destruction with testator's presence and witnessing D. Cancelling, testator ruining the words of the will E. Divorce F. New will |
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Thompson v Royall, 217, Revocation Clause |
Revocation clause does not revoke the will |
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Presumption of Destroyed Will |
If T has last possession of will and cannot be found at death or seems revoked, revocation is presumed |
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Harrison v. Bird, 225, |
Court may presume a will to be destroyed if destruction occurred by delegation |
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Partial Revocation |
Where the court will strike one provision of a will while keeping the remainder entact.
Minorities will either probate the entire will or strike it entirely.
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Dependent Relative Revocation |
Destruction of Will2 revives Will1 if closest to testator's intent |
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Rule of Last in Time LaCroix v. Senecal, 230, Estate of Alburn, 234,
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When a second will is drafted, the first will is revoked. |
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Remedial Doctrines for Failed Wills |
A. DRR B. Integration C. Republication by Codicil D. Incorporation E. Event of Independent Significance |
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Clark v. Greenhalge, 245,
Incorporating a letter |
A letter intended to be a will may incorporate a deed locked away in a safe. |
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Running List of Tangible Property |
1. Handwritten or Signed 2. Detailed item and devisee
NY, N/A |
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Johnson v. Johnson, 250,
handwriting on typed form, |
Handwriting on a form will may incorporate typed clauses but generally, will not integrate. |
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Exordium |
Introductory part of the will |
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Mirror Will |
Where the husband and wife are each other's sole beneficiaries.Modification is permitted. |
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Dead Man Statute |
Witness cannot testify to communication with a deceased testator |
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NY Contract to Will Keith v. Lulofs, 258 |
1. Writing 2. Agreed 2. Signed by Testator *Mirror will is insufficient |
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Quantum Meruit to a will |
A beneficiary is entitled to a devise if they were led to believe such and would suffer a loss otherwise |
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Mental Incapacity (4) |
A. Mental Deficiency, entire will fails if testator is unable to draft a will B. Insane Delusion, imaginative provisions fail C. Undue Influence, susceptible, confidential relationship, actor was involved in will draft D. Duress, gun to head |
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In re Wright's Estate, 266,
fish devise, faking death, paper flower shrubs, terrorized children, |
testator still sane. |
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Wilson v. Lane, 271,
Can't bathe, can't dress herself, scared of flooding, reported false fires, assisted living, |
still sane. |
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In re Strittmatter, 275,
Woman who devised her estate to the Woman's Party was... |
insane |
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Breddon v. Stone, 277,
drug user, delusion, drinker, bipolar rebutted by clear HW was... |
sane. |
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Lipper v. Weslow, 300,
Being the testator's son is insufficient to show... |
duress |
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No Contest Clause |
Beneficiary loses devise if they unsuccessfully challenge a will |
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Exceptions to No Contest Clause (NY) |
1.Forgery 2.Jurisdiction 3. Incompetence 4. Interpretation |
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Simultaneous Death Act |
If the testator and the beneficiary die within 120 hours of each other, they are treated as predeceased. |
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Estate of Lakatosh, 284
Undue Influence (3) |
1. Confidential relationship 2. Significant inheritance 3. Weakened intellect |
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Plain Meaning Rule Mahoney v. Grainer, 328 |
Will must be probated in its literal form. Words trump intent. |
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Estate of Cole, 332,
Ambiguity Doctrine |
Ambiguity requires extrinsic evidence |
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Patent Ambidguity? |
Ambiguity on the face of the will or provision |
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Personal usage Exception to the Plain Meaning Rule |
Personal usage is interpreted with the testator's intent |
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Amheiter v. Amheiter, 338, Rule of Description |
Courts may use details in a will to determine which property is to be devised. |
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Gibbs Estate, 339,
Mistake, extrinsic evidence permitted? |
Mistake in a will prohibits extrinsic evidence |
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Scrivener's error exception |
Extrinsic evidence is permitted to correct a mistake if it is a drafting error |
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Abatement |
If there's insufficient funds in an estate for a specific devise, the percent-beneficiaries sacrifice their portion abate-ably. |
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Rule of lapse |
A predeceased-beneficiary's devise reverts to the residuary estate |
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estate of Russel, 352,
What happens to a devise if it is void? |
Anti-lapse; it does not go to the residuarye state but to the intended benficiaries' heirs. |
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Rutolo v. Tiejtan, 361,
How to avoid anti-lapse |
Clearly direct it to the residuary estate |
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Estate of Anton, 374,? |
Estate of Anton, 374, |
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Trust |
1. Res 2. Beneficiary 3. Trustee 4. Donors intent
*Real trust requires writing |
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Lux v. Lux, 421,
When there is no trustee to a trust |
where there is no trustee to a trust, the court may save the trust by appointing a trustee |
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Culton v. Culton,?,
Precatory language to a trust requires... |
Precatory language to create a trust requires external factors to determine intent. |
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Jimenz v. ?, ?,
Custodian v trustee |
Custodians of a trust have a lower duty than trustees |
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Lifetime/ Irrevocable Trust |
Where the donor has no control to change or modify the trust. |
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Merger Rule |
Where the title and beneficiary from the trust lie in one person, the trust fails. |
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Empty/Standy by Trust |
Where the trust is empty until it receives res upon deivise |
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Remedies for a failed trust |
1. If no intent, then the trustee gets a fee simple
2. If not beneficiaries or RAP violation, res goes to settlor |
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In re C Wright, 421,
Can animals be beneficiaries toa trust? |
Animals cannot be beneficiaries to a trust |
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In re Fournier, 427,
Is a settlor's decleration sufficient to establish a trust? |
yes; this creates an oral trust. |
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Terminating a trust (2) |
A. All beneficiaries agree, if the settlor is alive
B. All beneficiaries agree, settlor is dead, but the trust's purpose remains satisfied |
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Settlor's Intent Rule |
Trustee must satisfy the settlor's intent/purpose of trust
See distribution of settlor |
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Settlor's Intent Rule (exception) |
A. Unforseen circumstances
B. Waste
C. New Rule, modification is permitted so long as purpose is satisified
D. Old Rule, modification is permitted only if there is substantial impairment |
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Pulitzer case
Exception to settlor's intent |
Trustee may sell of trust/shares (dissolve trust) in order to save the purpose of the trust |
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In re Riddell, 726,
special needs, trust |
Special needs for beneficiary permits modification under new rule |
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Trustee duty of loyalty |
-No self dealing -No intercepted opportunities
Intent not required personal liability |
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Trustee conflict of interest |
No conflict with trust and third parties
May be rebutted by fair, good-faith reason |
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Trustee's prudence |
Manage and distribute trust reasonably |
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Trustee investment prudence |
Maximize return, while maintaining purpose
look at portfolio, not 1 investment (UPIA) |
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Hartman v Hartle 588
No further inquiry rule |
Trustee auctioned land to his wife.
Mandatory liability breaching duty of loyalty |
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Glessan 589
trustee renting trusted land |
Trustee renting land, even at fair price is mandatory liability |
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Marsman v Nasca 603
trustee inquiry rule |
Trustee must inquire into the financial neds of beneficiaries |
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In re estate of Janes
diverse investment rules |
Trustee not diversifying investment is a breach of investment prudence |
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trustee exculpatory clause |
Trustee is not personally liable
unless reckless or intended to harm |
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utter disregard rule |
if trustee is careless with trust court may appoint new trustee or guide |
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trustee self dealing remedies |
set aside transaction affirm transaction
recover profits |
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how a trustee avoids breaches |
step down
leave from court
beneficiaries approve transaction
trust authorized
self employment exception
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trustee self employment exception |
self dealing okay
trustee may hire himself for efficiency |
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3rd party duty to inquire trustee |
non existant |
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trustees duty to protest |
Multiple trustees
1. Common law permits a veto 2. Majority rule: majority prevails C. in either case trustee must not resign and inform court |
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trustee delegatiion |
trustee may delegate investment and management duties
never distribution duties |
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trustee impartiality |
trustee must be impartial to current and future beneficiaries |
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trustee interest : principle ratio |
4% standard
trustee may go higher or lower |
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unitrust |
A trust with an annuity percentage, usually to a chairty.
E.g. 10% to ABC Trust annually |
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In re Heller 663
Can a trustee elect unitrust status? |
Yes. |
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English/Strict per stirpes |
the estate is 1st divided into equal portions by the number of members in the 1st tier. Living members take their share; the portions that would have gone to the dead members of the tier are dropped by bloodline and shared by the issue of the deceased. |
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Modern/American Per Stirpes |
1st LIVING generation
living get share
share passes through dead |
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UPC
Per capita
NY distribution |
Only 1st living generation gets paid
remainder gets bundled and equally divided again |
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Latent ambiguity |
Ambiguity after extrinsic evidence has been entered |
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Anti-lapse rule |
Predeceased-beneficiary's devise passed through to his heirs.
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If a trust was created with no intent, what happens to the res? |
It goes to the trustee in fee simple |
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If the trust violates RAP or has no beneficiares, the res goes... |
to the settlor |
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Mental deficiency |
testator unable to comprehend or draft will |
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Insane delusion |
Testator's clause or devise has no basis in fact |
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Undue influence |
Testator is suceptible to beneficiary given their relationship |
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Duress |
Testator under force by beneficiary |
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No spouse, no kids then |
Parents
if no parents, then siblings
if no siblings, half to mother's side half to father's side |
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Purging Statute, NY |
Witness/beneficiary gets less of intestate or devise |
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Ademption |
If devise is sold, beneficiaries loses out |
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Powers of attornye (3) |
Ordinary, ends at incapacity Durable, ends at principal's death Springing, BEGINS at incapacity |
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Elective share |
Wife always gets 1/3 of probate estate or $50k |
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Augmented/Net estate |
Probate + non-probate estate
1. Gifts causa mortis 2. Agreegate $14k per person excess 3. Totten trust, 4. Revocable trust during marriage 5. Irrevocable trust furing marriage without wife's approval |
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Ommitted child share |
treated as class, or pro rata |
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Types of Trusts |
1. Mandatory trust 2. Pure discretionary trust 3. Trust with standards 4. Spendthrift trust 5. Self-settled trust 6. Protective trust
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Mandatory trust |
Beneficiary can assign interest Creditor can attachinterest Medicaid asset |
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Discretionary standards trust |
Creditor can attach only family support No beneficiary assignment B can compel trustee's compliance Medicaid asset |
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Pure discretionary trust |
No beneficiary assignment Creditor can order trustee payout Beneficiary can require goodfaith Not an asset |
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Spendthrift trust/provision |
Beneficiary cannot compel interest Creditor has to wait until payout Medicaid asset |
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Protective trust |
Beneficiary loses interest upon assignment Creditor cause loss in payout Medicaid asset |
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Self-settled trust |
Spendthrift for settlor Medicaid asset |
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Clafin Doctrin |
Dissolution of trust permitted so long as material purpose left |
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Charitable trust |
requires indefinite beneficiaries |
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Cy pres |
Settlor’s original purpose is or becomes illegal, impossible or impracticable
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