Trusts/wills/probate Issue Statements

Front 1

Opening Argument

Back 1

Will and probate law governs the disposition of assets upon death. The law of trusts controls the dispersal of property to others under the protection of a fiduciary.

Front 2

Elements of a Trust

Back 2

• A trust is a fiduciary relationship consisting of a settlor, property, intent, rule against perpetuities compliance, ascertainable beneficiaries, and a trustee.

Front 3

Trustee

Back 3

• The trustee must have legal capacity, can be court appointed if the named trustee fails, and must be someone other than or in addition to the beneficiary.

Front 4

Trustee fiduciary duty

Back 4

• The trustee’s fiduciary duty of loyalty excludes self-dealing such as buying or selling trust assets unless the instrument expressly allows same. The trustee must not take an opportunity of the trust. If the trustee borrows from the trust or uses the trust assets as collateral for a personal loan, he has breached his fiduciary duty.

Front 5

Spendthrift trust

Back 5

• A spendthrift trust prohibits assignment by the beneficiary or attachment of a future distribution by a beneficiary’s creditor.

Front 6

Rights of beneficiaries

Back 6

• The trust’s beneficiaries may bring suit for diminution of the corpus and lost earnings. A court may order that a trustee be removed and may appoint a successor trustee. A declaratory action may order specific performance of the trustee’s duties or enjoin the trustee in the future.

Front 7

Will requirements

Back 7

• A valid will requires (1) testamentary capacity (18 and over) (2) intent (3) mental capacity (4) attested by two disinterested witnesses and (4) signed by the testator.

Front 8

Mental capacity

Back 8

• Mental capacity of the testator requires the testator to understand his (1) property nature and extent (2) natural objects of her bounty and (3) testamentary effect of executing the devise.

Front 9

Undue influence

Back 9

• To contest a will on the basis of undue influence requires a showing of a fiduciary relationship and active participation by the beneficiary who received an unnaturally large devise.

Front 10

Property testator may devise

Back 10

• The testator can devise only half of the community property (CP) and all of his separate property (SP).

Front 11

Incorporation by reference

Back 11

• A will may incorporate by reference any separate writing (1) in existence at the time the unrevoked will is executed if (2) it is sufficiently described and identified.

Front 12

Modification

Back 12

• A modification (by codicil or handwritten on original will) to a will by adding a new beneficiary or creating a new testamentary scheme requires all the formalities of creating a will. Eliminating beneficiaries or merely adding property to the residue does not require will formalities.

Front 13

Non-probate assets

Back 13

• Alternatives to probate include insurance policies, retirement plans, assets in trust, POD accounts, joint bank accounts, and property held as joint tenants.

Front 14

Filing will

Back 14

• Upon D’s death, the original will and death certificate must be submitted to the court for probate within 30 days unless the will was destroyed or lost. A copy of the will can then be admitted if there is clear and convincing evidence that the will was not revoked and the court has proof of the proper execution and validity of the will.

Front 15

Personal Representative

Back 15

• The probate estate is administered by a personal representative (PR) named by the will or appointed by the court. A SS/DP may petition the court to be PR of the CP within 40 days of death. The PR is under a duty to give notice to all beneficiaries and creditors, and exercise reasonable care in the administration/distribution of the estate.

Front 16

TEDRA

Back 16

• Under TEDRA, WA requires that the parties submit to mediation and arbitration in the event of an estate/trust dispute.