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146 Cards in this Set
- Front
- Back
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What is the Uniform Simultaneous Death Act?
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Provides that property is distributed as if going to the other, and then by the other person's will or intestate succession
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When does the original Uniform Simultaneous Death Act apply?
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When there is "no sufficient evidence that the parties have died otherwise than simultaneously
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When does the modern Uniform Simultaneous Death Act apply?
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Applies if the beneficiary fails to survive for more than 5 days (120 hours)
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What are the three methods of intestate distribution of descendants?
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(1) Strict per stirpes; (2) per capita with representation (i.e., modern per stirpes); and (3) per capita at each generation
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Describe strict per stirpes intestate distribution.
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Begin the division of the estate at the decedent's children.
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Describe per capita intestate distribution.
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Begin division of the estate at the first generational level with a survivor.
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Describe per capita at each generation intestate distribution.
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Begin division of the estate at the first generational level with a survivor but the residue drops to the next generation in a pool.
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If D.C. Dent dies leaving his estate, per stirpes, to his children A (with a1), B (with b1 and b2), and C (with c1, c2, and c3), how much would each get?
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A, B, and C would get one-third each.
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If D.C. Dent dies leaving his estate, per capita, to his children, A, B, and C, how much would each get?
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One-third
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If D.C. Dent dies leaving his estate, per capita at each generation, to his children, A, B, and C, how much would each get?
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One-third
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If A dies, and then D.C. Dent dies, leaving his estate per stirpes, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 gets 1/3; B 1/3; and C 1/3.
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If A dies, and then D.C. Dent dies, leaving his estate per capita, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 gets 1/3; B 1/3; and C 1/3.
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If A dies, and then D.C. Dent dies, leaving his estate per capita at each generation, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 1/3; B 1/3; and C 1/3.
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If A dies, then B dies, and then D.C. Dent dies, leaving his estate per stirpes, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 1/3; B1 1/6; B2 1/6; and C 1/3.
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If A dies, then B dies, and then D.C. Dent dies, leaving his estate per capita, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 1/3; B1 1/6; B2 1/6; and C 1/3.
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If A dies, then B dies, and then D.C. Dent dies, leaving his estate per capita at each generation, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 2/9; B1 2/9; B2 2/9; and C 1/3.
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If A dies, then B dies, then C dies, and then D.C. Dent dies, leaving his estate per stirpes, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1 1/3; B1 1/6; B2 1/6; C1 1/9; C2 1/9; and C3 1/9.
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If A dies, then B dies, then C dies, and then D.C. Dent dies, leaving his estate per capita, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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A1, B1, B2, C1, C2, and C3 all receive 1/6.
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If A dies, then B dies, then C dies, and then D.C. Dent dies, leaving his estate per capita at each generation, then who receives what among A (a1), B (b1, b2) and C (c1, c2, c3)?
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All grandkids receive 1/6.
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What is parentellic inheritance?
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A form of inheritance by parents and collaterals where one splits the estate into two moieties, giving half to paternal descendants and half to maternal descendants.
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What is degree of relationship inheritance?
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A form of inheritance where one finds the first living relative in the Table of Consanguinity.
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What is the Rule for "Half-Blooded" relationships?
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(1) Old English rule: no distribution to half-blooded relatives; (2) modern rule: half-blooded relatives treated as full relatives; and (3) Scottish rule: half-blooded relatives get a half-share.
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How do adopted children inherit?
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Generally, adopted children inherit through their adoptive families and not through their biological families.
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What does the Uniform Probate Code have to say about biological inheritance for adopted children?
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The UPC provides that biological inheritance may remain intact in the case of step-parent adoptions.
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May adults be adopted? If so, does it effect a will or trust?
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Adults may be adopted, and this may or may not be permitted to change the effect of a will or trust.
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What is the general rule for non-marital children?
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Generally, the approach is that non-marital children are treated the same as marital children, but greater requirements may be imposed to determine parentage.
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What is the general rule for posthumous children?
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Generally, children conceived during life but later born alive have the same inheritance rights as other children. Posthumously conceived children may be able to inherit.
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What is an advancement?
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An advancement occurs when an heir is pre-paid part or all of her intestate share before death.
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Are all gifts from donors to heirs considered advancements?
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The traditional rule was to presume gifts were advancements, but now they are presumed not to be.
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What is a guardian of a minor?
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A guardian of the person is responsible for custody and care of a minor child
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What are the four types of guardians of property?
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There are 4 approaches: (1) guardianship; (2) conservatorship; (3) custodianship; and (4) Trusteeship.
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Describe guardianship of property.
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Very restrictive, expensive, substantial court supervision, usually can't change investments, can only use income from property.
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Describe conservatorship of property.
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Less court supervision; given "title as trustee," has investment powers.
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Describe custodianship of property.
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Under the Uniform Transfers to Minors Act and the Uniform Gifts to Minors Act, this allows more flexibility; can expend principal and property for benefits; can invest, created by using statutory language.
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Describe trusteeship of property.
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Most flexible; drafted to donor's circumstances; can grant broad investment and selling powers; can last beyond age 21.
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Describe the 3 approaches to "slayers" in inheritance law.
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(1) slayer takes -- Legal title passes to slayer and may be retained despite crime; (2) slayer does not take -- legal title will not pass because of equitable principle that no one should be permitted to profit by his own fraud, or take advantage and profit as a result of his own wrong or crime; and (3) slayer as constructive trustee -- legal title passes to slayer, but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent under 'Mahoney'.
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For what support does the surviving spouse have a right?
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(1) Social security, pensions, homestead, personal property set-aside, family allowance, dower, curtsey
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What is the elective share?
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The statutory provision whereby a surviving spouse, under testate or intestate succession, takes by statute rather than by will; usually one-third
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What must a court do with regard to a surviving spouse's share if a guardianship is established?
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The court must order the elective share.
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What property is subject to the elective share?
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Originally, one-third of the probate estate. Now, defined by statute and court-rulings.
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Describe how fraudulent intent affects elective share.
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If the court determines that a transfer was made deliberately to defraud the surviving spouse in order to defeat elective share, then the court will bring that back into the probate estate.
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Describe how illusory transfer affects elective share.
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Whether the decedent intended to give up ownership or whether he transferred in as a holding mechanism with the intent to take it back; courts will often bring the asset back into the probate estate.
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How may a surviving spouse waive the elective share?
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In writing.
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What may a spouse omitted from a pre-marital will do?
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Take her intestate share; see 'Estate of Shannon'.
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What is a pretermitted child?
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A child who receives no inheritance in a will and who is not mentioned in the will.
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What recourse has a pretermitted child?
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The child may take an intestate share or share with other children; see 'Azcunce v. Estate of Azcunce'.
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What are the four main requirements for a valid will?
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(1) Legal capacity; (2) testamentary/mental capacity; (3) testamentary intent; and (4) legal formalities.
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What are the elements of mental capacity for testamentary purposes?
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The testator must be capable of knowing and understanding in a general way: (1) the nature and extent of his or her property; (2) the natural objects of his or her bounty; (3) the disposition that he or she is making of that property; and (4) how the aforementioned elements relate to one another such that the testator can form an ORDERLY DESIRE regarding the disposition of the property.
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What is a legal "insane delusion"?
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A false belief to which the testator adheres in spite of evidence and reason to the contrary.
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If a testamentary disposition is caused by an insane delusion, what result?
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Those dispositions are invalid to the extent they were caused by the insane delusion.
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What is undue influence?
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Such (1) control exercised over the mind of the testator as to (2) overcome his free agency and to (3) substitute the will of another so as to (4) cause the testator to do that which he would not otherwise have done (5) but for such control.
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What 4 conditions must be present for undue influence to be found?
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(1) susceptibility; (2) opportunity; (3) disposition to influence; and (4) result (i.e., influenced disposition).
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What are the elements of testamentary fraud?
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(1) False representation; (2) knowledge of falsity; (3) reasonably believed; (4) causation.
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What are the types of testamentary fraud?
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(1) Fraud in the execution (i.e., fraud 'in factum'); and (2) fraud in the inducement.
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What is duress?
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A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.
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What is tortious interference with an expectancy?
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A tort which proven when the following elements are met: (1) existence of an expectancy; (2) a reasonable certainty that the expectancy wold have been realized but for the interference; (3) intentional interference with that expectancy; (4) tortious conduct involved with the interference; and (5) damages.
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What are the four purposes of testamentary formalities?
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(1) Cautionary/ritual function; (2) evidentiary founction; (3) protective function; and (4) channeling function.
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What formalities are required as an element of a will?
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(1) writing; (2) attestation, i.e., witnessing; and (3) signature, a.k.a., subscription.
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What are the 3 rules for witness presence at execution?
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(1) Line of sight test; (2) conscious presence test; and (3) UPC 1990 test
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What is the line of sight test for witness presence at execution?
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The testator must have been able to see the witnesses. The testator need not have actually seen the witnesses, but must have been capable of seeing them.
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What is the conscious presence test for witness presence at execution?
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The testator must, through sight or hearing or general consciousness of events, comprehend that the witness is in the act of signing.
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What is the UPC 1990 rule for witness presence at execution?
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There is no requirement that the witnesses sign in the testator's presence.
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What is a purging statute?
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State statute that takes away the bequest of someone who witnessed the will
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What is the substantial compliance doctrine?
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A curative doctrine that permits probate of a will when a testator substantially complies with the will formularies in a way that serves the purpose of formalities.
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What is the harmless error rule?
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This rule dispenses with the requirements of the formalities when there is clear and convincing evidence that the testator intended the document to be his will. This is the rule in UPC § 2-503. Also called the "dispensing power."
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What are the requirements for holographic wills under first-generation statutes (pre-UPC 1969)?
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(1) no witnesses necessary; (2) must be in testator's handwriting; (3) "entirely written, signed and dated" in the testator's hand.
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What are the requirements for holographic wills under the second-generation statutes (UPC 1969)?
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(1) no witnesses necessary; (2) the material provisions must be in the testator's handwriting
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What are the requirements for holographic wills under the third-generation statutes (UPC 1990)?
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(1) no witnesses necessary; (2) material portions must be testator's handwriting; (3) extrinsic evidence is allowed
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What are the 3 ways a will may be revoked?
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(1) Subsequent writing, i.e., new will or codicil; (2) violence to the will; e.g., ripping, burning, etc.; (3) operation of law, e.g., triggered by divorce
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How many revocations in writing by effective?
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(1) By an express provision revoking in part or all of the prior will; or (2) by inconsistency with the terms of the prior will.
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What are the 4 basic requirements to a valid revocation by physical act?
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(1) Capacity to revoke; (2) intent to revoke; (3) a satisfactory physical act performed on the will; and (4) simultaneous existence of the first 3 elements
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Explain the dependent relative revocation rule.
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If the testator purports to revoke his will under a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth.
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What is a testamentary revival?
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Revival occurs when a will that has been revoked is reinstated
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How can a testator trigger revival?
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By (1) re-executing the old will; (2) by executing a new will or codicil providing that the old will is to be effective; or (3) a revival may be triggered when a will or codicil that revokes an earlier will that is, itself, revoked.
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How many kinds of integration are there?
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2: internal and external.
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Describe external integration.
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External integration is the process of establishing the testator's will by piecing together all of the testator's wills, codicils, and other testamentary instruments.
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What is internal integration?
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The process of making sure all of the parts of a testator's will were intended to be part of the will and were part of the will at the the time it was executed.
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What is republication by codicil?
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The doctrine whereby a will is considered to be re-executed or re-published as of the date of the codicil, but only applies if the will in question was executed with the requisite formalities.
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What is incorporation by reference?
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A device used in legal documents, including wills, whereby one may incorporate, or make part, the terms of an external document or writing by referring (i.e., identifying) the external document; this is effective within a testamentary context so long as: (1) the writing is in existence when the will is executed; (2) the will manifests an intent to incorporate; and (3) the writing is sufficiently described as to permit its identification.
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What is the doctrine of "acts of independent significance"?
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The doctrine holds that beneficiary or property designations may be identified by acts or events that have a lifetime motive and significance apart from their effect on the will.
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How many kinds of ambiguity are there?
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3 types: (1) patent ambiguity; latent ambiguity; and (3) no apparent ambiguity, but possible mistake
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What is patent testamentary ambiguity?
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A will provision that is unclear on its face and does not convey a sensible meaning to the reader is considered patently ambiguous.
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What is latent testamentary ambiguity?
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A will provision is latently ambiguous if it conveys a sensible meaning on its face but cannot be carried out without further clarification.
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When is there no apparent ambiguity but an error?
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It's possible, if there is no latent or patent ambiguity, that it is either (1) correct or (2) a mistake.
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What are lapse statutes?
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Provide that gifts generally lapse if the beneficiary does not survive the testator.
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What are anti-lapse statutes?
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Prevent a lapsed gift from failing by providing substitute beneficiaries (descendants) for the lapsed gift.
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What is the common law rule on specific or general lapsed devises?
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If a specific or general devise lapses, the devise falls into the residue.
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What is the common law rule on residuary lapsed devises?
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If (1) the devise of the entire residue lapses, because the sole residuary devises pre-decease the testator, the heirs of the testator take by intestacy; but (2) if a share of the residue lapses, then (a) the common law rule is that there cannot be residue of a residue; but the (b) modern rule is that surviving residuary devisee takes.
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What is the common law rule on class gifts?
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IF the devise is to a class of persons, and one member of the class pre-deceases the testator, the surviving members of the class divide the gift.
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What is ademption by extinction?
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Ademption by extinction occurs when a particular item of personal property or specially designated real property is substantially changed or not part of the testator's estate when he or she dies.
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Describe the identity theory of ademption.
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Under this theory, if a specifically devised item is not in the testator's estate, the gift is extinguished.
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Describe the intent theory of ademption.
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Under this theory, if the specifically devised item is not in the testator's estate, the beneficiary may nonetheless be entitled to the cash value of the item if the beneficiary can show that this is what the testator would have wanted.
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What is ademption by satisfaction?
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The same thing as the satisfaction of general pecuniary bequests.
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What is the satisfaction of general pecuniary bequests?
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The doctrine of satisifcation applies when a beneficiary is pre-paid her bequest before the testator's death.
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What is the exoneration of liens?
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Under this common law doctrine, when a will makes a specific disposition of property that is subject to a mortgage to secure a note upon which the testator is personally liable, it is presume that the testator wanted the debt to be paid out of the residuary estate.
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What is abatement?
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The reduction or elimination of a testamentary gift to pay an obligation of the estate or a testamentary gift of a higher priority.
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In what order do bequests abate?
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Pro rata at each level: (1) residue; (2) general; and (3) specific.
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What are the primary non-probate transfer?
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Life insurance, pension accounts, bank brokerage and mutual fund accounts, transfers upon death, payable on death, revocable inter-vivos trust, and joint tenancies.
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What is a pour-over will?
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A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his estate at the time of his death shall be placed in the trust.
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What is a living will?
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A living will usually covers specific directives as to the course of treatment that is to be taken by caregivers, or, in particular, in some cases forbidding treatment and sometimes also food and water, should the principal be unable to give informed consent ("individual health care instruction") due to incapacity. It is usually witnessed and notarized.
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What is a health-care proxy?
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A health care proxy is a legal document used in the United States that allows an agent to make health care decisions in the event that the primary individual is incapable of executing such decisions.
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What is a trust?
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An arrangement whereby money or property is owned and managed by one person (or persons, or organizations) for the benefit of another.
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Who are the parties to a trust?
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(1) The donor; (2) the trustee; and the beneficiary.
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Describe the function of the donor of a trust.
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The donor (1) conveys legal title of the trust res to the trustee; and (2) conveys equitable title to the beneficiary.
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Describe the function of the trustee.
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The trustee (1) receives legal title from the donor; and (2) owes beneficiary a fiduciary duty for the trust res.
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Describe the function of the beneficiary of a trust.
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The beneficiary (1) receives equitable title to the trust res; and (2) enforces the trustee's trust administration.
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What does it take to create a trust?
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(1) Intent to create a trust; (2) necessity of trust property (the "res"); (3) necessity of trust beneficiaries; and (4) necessity of a written instrument, sometimes.
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What factors regarding hte intent to create a trust must be considered?
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(1) No particular words are necessary; and (2) mere precatory language does not create a trust.
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Do assets count as a trust res?
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Sometimes, but it is ambiguous, e.g., future profits.
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Give the elements that must be present for proper trust beneficiaries.
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(1) Must be definite and identifiable; (2) must be able to enforce the trust; (3) must be for a specific person, not a specific purpose; and (4) if made for a specific purpose, then may be "honored" as an honorary trust
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What factors affect whether a written instrument is required?
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(1) Oral trusts of land may violate the statutes of fraud, they might be enforced using a constructive trust, or they might fail; (2) secret or semi-secret trusts, the terms of which are not fully written on the face of the instrument, maybe enforced or mail fail -- secret trusts are more likely to be enforced than semi-secret trusts.
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What is a discretionary trust?
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A trust wherein the trustee has discretion over payment of either the income or the principal or both.
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Describe the particular features of a discretionary trust.
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(1) No property rights for the beneficiary; (2) a creditor cannot, by judicial order, compel the trustee of a discretionary trust to pay the creditor; (3) once the funds have been given to the beneficiary, then they are no longer protected from creditors.
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What is an exculpatory clause?
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That part of a written agreement that relieves one party to the agreement of liability as a result of actions (or lack of actions) performed in the course of executing the terms of the contract. In a trust agreement, an exculpatory clause relieves the trustee of liability resulting from any act performed in good faith under the trust agreement.
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What is a sprendthrift trust?
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A spendthrift trust is a trust that is created for the benefit of a person (often because he or she is unable to control spending) that gives an independent trustee full authority to make decisions as to how the trust funds may be spent for the benefit of the beneficiary. Creditors of the beneficiary generally cannot reach the funds in the trust, and the funds are not actually under the control of the beneficiary.
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What is a self-settled asset protection trust?
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Self-Settled Trusts are commonly known as Asset Protection Trusts, or APTs, for short. These are spendthrift trusts that the settlor forms for his or her own benefit, i.e., the settlor is a beneficiary as well as the settlor. The idea is that the Settlor can convey assets to the trust, and that after the conveyance the assets will be protected from creditors and spouses of the Settlor.
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How may an irrevocable trust be modified or terminated?
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If the donor and all of the beneficiaries consent; but, if such a modification or termination would be contrary to a material purpose of the donor, then it will not terminate or modify, even if trustee and all the beneficiaries agree.
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What is reformation of a trust?
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An equitable remedy that conforms an instrument to what it was intended to say.
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What is modification of a trust?
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Under equitable deviation principles, a modification changes the terms of the trust instrument to reflect not what the grantor meant to say, but what the court believes the grantor would have said had the grantor anticipated the changed circumstances.
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What is the general rule regarding termination of a trust?
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A trust cannot be terminted if (1) it is a sprendthrift trust; (2) if the beneficiary is not to receive the principal until attaining a specific age, i.e., the enjoyment is post-poned; (3) if it is a discretionary trust; or (4) if it is a trust of support of the beneficiary.
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Compare charitable and private trusts in respect of beneficiaries.
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CT: can't have specific beneficiaries, must have a valid charitable purpose; PT: must have an ascertainable beneficiary to be valid.
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Compare charitable and private trusts in respect of the rule against perpetuities.
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CT: doesn't have to comply with the RAP; PT: must comply with the RAP.
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What is the cy pres doctrine?
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In common law jurisdictions the cy-près doctrine (pronounced as "sigh-PRAY") is a legal doctrine of courts of equity. The term can be translated (from French to English) as "as near as possible" or "as near as may be." When the original objective of the settlor or the testator became impossible, impracticable, or illegal to perform, the cy-près doctrine allows the court to amend the terms of the charitable trust as closely as possible to the original intention of the testator or settlor, to prevent the trust from failing.
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Compare charitable and private trusts in respect of the cy pres doctrine.
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CT: flexible for modification when circumstances arise; PT: inflexible.
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Compare charitable and private trusts in respect of enforcement.
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CT: attorney general enforces charitable trusts for the benefit of all citizens; PT: beneficiaries enforce the trust, i.e., call the trustee to account and to court.
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Compare charitable and private trusts in respect of taxation.
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CT: exempt from income taxes and estate taxes; PT: taxable entities, revocable to the donor; irrevocable by subchapter J to beneficiary, and transfer fall under the estate tax.
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Must a charitable trust have an ascertainable beneficiary?
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No.
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What must a charitable trust have in order to qualify as such?
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(1) A valid charitable purpose; (2) that is broad enough to encompass several beneficiaries.
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May a charitable trust benefit only one beneficiary?
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Generally no; but, in the case of scholarships, yes, since the scholarship is available to more than one potential beneficiary.
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Name some charitable purposes that qualify a trust as having a "charitable purpose."
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(1) relief of poverty; (2) advancement of education; (3) advancement of religion; (4) promotion of health; (5) governmental or municipal purposes; and (6) other purposes beneficial to the community.
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What is administrative deviation?
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The doctrine whereby a court will permit deviation in the administrative terms of a trust when compliance would defeat or substantially impair the accomplishment of hte purpose of the trust.
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May a donor have standing to enforce a charitable trust?
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Generally, no, as under the traditional rule; the modern rule is that sometimes, since attorneys general have limited resources, it may be permissible.
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What are the duties of a trustee in administering a trust?
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(1) Has powers over the trust res; (2) owes fiduciary duties to the beneficiaries.
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Does the beneficiary have any rights against the trustee?
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Yes: the beneficiaries have the right to enforce the trustee's duties so that his powers are used for their benefit.
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What is the duty of loyalty with respect to trusts?
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A trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary.
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What is the standard for determining whether a trustee has engaged in self-dealing?
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The court determines whether the trustee considered his interest instead of the beneficiaries'; if he is found to have done so, he is liable for breach.
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What is the standard for a conflict of interest with respect to a trustee's administration of a trust?
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The court determines whether the trustee considered the interest of a third-arty instead of the beneficiaries; in order to do so, the court considers the fairness of the transaction; trustee is liable if the transaction was unfair.
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A trust has the duty of obtaining possession of the trust assets without __________.
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Unnecessary delay.
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What is the duty to earmark trust property?
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An earmark is to designate property as trust property rather than the trustee's own; if the property is not earmarked, then the trustee might later claim it as his own.
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What is the traditional rule regarding the duty to earmark trust property?
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The traditional view is that the trustee is strictly liable for any loss resulting fro the investment, whether it was caused by earmarking or not.
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What is the recent view regarding the duty to earmark trust property?
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The recent view is that the trustee is liable only for such loss as results from the failure to earmark and is not liable for such loss as results from general economic conditions.
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May a trustee commingle his funds with the trust res?
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No, even if it is not for his own purposes.
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How has the fiduciary duty been abridged in many jurisdictions?
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A corporate fiduciary may hold and invest trust assets in a common trust fund.
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What is the duty of prudence?
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A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
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What is the 'Dennis' impartiality-and-principal/income problem?
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"If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries' respective interests." --Dennis v. R.I. Hosp. Trust Co.
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What are the duties the trustee owes to the beneficiaries?
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(1) loyalty, i.e., no self-dealing or conflicts of interest; (2) prudence, i.e., prudent investment; (3) impartiality; (4) collect and protect trust property; (5) earmark; (6) no commingling; and (7) inform and account to beneficiaries.
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