Wills & Trusts

Front 1

What are the requirements for a trust?

Back 1

1) A trustee holding legal title to property for the benefit of the beneficiaries

2) No magic words, or wishes

Front 2

What is Res?

Back 2

It is the subject matter of the trust.

Front 3

What must the Res be?

Back 3

Certain and identifiable

Front 4

What are the two rules for Beneficiaries?

Back 4

1) Private trust must have ascertainable beneficiaries
2) Charitable trust need not have ascertainable beneficiaries

Front 5

What are the rules for Trustees?

Back 5

1) Must have one or more
2) Trust does not fail for want of a trustee (unless special person)
3) Court will appoint trustee

Front 6

What is a revocable Trust?

Back 6

These are a valid, it is where the Settlor reserves the right to revoke, alter or amend trust and obtain income during their lifetime

Front 7

What is a pour over trust?

Back 7

If the trust exists before or concurrently executed with a will the testamentary gift to the trust is upheld

Front 8

What testamentary trusts are ineffective?

Back 8

1) Secret trusts
2) Semi secret trusts

Front 9

What is a secret trust?

Back 9

1) An absolute devise with oral promise to hold on trust
2) Oral evidence is admissible to show the existence of a trust
3)If proven, constructive trust is imposed as an equitable remedy

Front 10

What is a semi-secret trust?

Back 10

1) Devise "in trust" with oral agreement
2) Resulting trust is created for the benefit of T's heirs

Front 11

What are the 4 requirements of a will?

Back 11

1) 18 or older
2) Signed at the end of the wll
3) Disposes of Property
4) No witnesses required if the testator signs himself

Front 12

What is a self proving will?

Back 12

1) self proving affidavit under oath
2) Formalities are conclusively presumed

Front 13

How do you revoke a will?

Back 13

1) Intent to revoke
2) Physical Act

Note: If T was in possession and control until death and the will was lost or destroyed=revoke

Front 14

How does a third party revoke?

Back 14

1) At T's direction proved by 2 witnesses
2) In T's presence

Front 15

What happens when you lose a will?

Back 15

1) Proponent must prove the contents by clear and convincing evidence
2) Copy from attorney is sufficient
3) Testimony by interested witness is insufficient

Front 16

What if a will is inconsistent with other stuff?

Back 16

1) Will and Codicil read together to the extent possible
2) Inconsistency, the later document controls
3) Later will has residuary clause revokes first will

Front 17

When you revoke a will what happens to the codicils?

Back 17

They are all revoked

Front 18

What happens when you revoke a codicil?

Back 18

The underlying will is not revoked

Front 19

What are the rules for Divorce in Wills?

Back 19

1) Gen Rule: Divorce revokes all provision in favor of ex-spouse
2) Exception: Will shows T's intent will would go to the spose
3) Note: Seperation but no divorce doesn't affect the rights of the wife (unless their is a property settlement)

Front 20

What happens when a will is partially revoked?

Back 20

Partial revocation is ok to revoke a provision BUT
New provision if any is not given effect until re-execution or republication

Front 21

What is a Dependent Relative Revocation?

Back 21

1) Revocation is disregarded if the revocation was conditioned on a new gift being effective and....
2) Does not revive a prior will but gives effect to revoked will

Front 22

What do you need to do to revive a will?

Back 22

1) Republication and
2) Re-execute

Front 23

What must you have to incorporate other documents into your will?

Back 23

1) Writing exists when will was executed
2) Will's intent to incorporate the document
3)Will must describe writing sufficiently to permit its ID

Front 24

What is a Lapse?

Back 24

1) Where beneficiary dies before the testator the gift fails and goes to the residue

Front 25

What is an Anti-Lapse statute?

Back 25

1) Kids of deceased beneficiary take in their place if
2) the TESTATOR's descendant or
3) Sibling or
4) Child of T's sibling

Front 26

What is the Class gift rule?

Back 26

Where a gift is to entire class and one member of the class dies the surviving member's still take

Front 27

What is the Residuary Rule?

Back 27

If the residue is left to two or more people and one dies, the remaining beneficiaries take in their proportionate share

Front 28

What is Abatement?

Back 28

The "priority" of certain bequests to pay off funeral expenses, administration expenses, and creditor's claims

Front 29

What order does Abatement flow?

Back 29

1) Intestate Property
2) Residuary Bequests
3) General Legacy
4) Demonstrative Legacy
5) Specific Devise

Front 30

What is a specific Devise?

Back 30

" I devise Blackacre to John"
Another Example:
" I devise my car to John."
Which car? Car at DEATH OF T

Front 31

What is Ademption?

Back 31

1) Gen Rule: 1) Where the gift is gone, or destroyed, beneficiary takes nothing (only applies to specific gifts)
2) Never applies when T is incompetent at time of execution

Front 32

What are the Exceptions to Ademption?

Back 32

1) Contracts: get balance of purchase price in K that is executory at T's death
2) Amount of a condemnation award
3) Amount of fire or casualty insurance proceeds
4) STOCKS dividends and other stock as a result of merger

Front 33

What happens when there is an exception to exemption?

Back 33

Specific devisee gets a general legacy equal to the amount of the remaining specifically devised gift

Front 34

How does exoneration of Liens work?

Back 34

Specific devisee of encumbered property is not entitled to have the debt paid off by the residuary:
Exception: T's intent to do so is clear

Front 35

How do you deal with Ambiguities?

Back 35

Plain meaning rule: Cannot disturb the plain meaning of a will regardless of mistakes.

Front 36

How do you deal with a Latent Ambiguity?

Back 36

Extrinsic evidence is admissible to resolve a latent ambiguity. Otherwise the gift goes to the residue.

Front 37

If no will how does intestate succession work?

Back 37

1) If there is a surviving spouse and
A) No issue or parent they get everything
B)Parent but no issue=First 30,000 and half off the balance
C) Spouse and Issue=First 30,000 and half off the balance
D) Spouse and Issue but the issue are not the surviving spouse's= 1/2 the estate

Front 38

If there is no surviving spouse then how does intestacy work?

Back 38

Distribition order: 1) Issue, 2) Parents, 3) Brothers, sisters and their kids

Front 39

How does Distribution work?

Back 39

1) Per Capita if all are same degree of relationship
2) Otherwise by representation
3) Exception: Will states to my descendants by right of representation

Front 40

How do Bastard's inherit?

Back 40

They do not inherit, unless: 1) Marriage to other bio parent 2) Decedent held child out as his own or
3) Clear and convincing evidence of paternity

Front 41

How does Adoption work with Wills?

Back 41

1) Adoption cuts off rights from natural parents unless its a step parent adoption
2) Otherwise adopted child treated as regular child

Front 42

How does the Simultaneous Death Act work?

Back 42

120 hour rule:
Survivor must survive the decedent for 120 hours (5 days) to take

Front 43

What is the rule for Satisfaction?

Back 43

Lifetime gift is not a prepayment of will interests unless 1) will provides so 2) Decedent or heir acknowledge it in writing

Front 44

What are the rights of a surviving Spouse?

Back 44

1) Pretermitted Spouse (married after will) generally gets the intestate share
2) Exceptions: 1) will gives spouse a greater share 2) Will was executed in contemplation of marriage

Front 45

What is the elective estate?

Back 45

Equal to the net estate and the following lifetime gifts transfers to the spouse or others
1) Transfers retaining the power to revoke for the decedent's benefit
2) property interests with rights of survivorship
3)Transfers in excess of 3000 withing a year of death

Front 46

What is the elective share?

Back 46

1) 1/3 the elective estate excluding nontestamentary transfers

1) Insurance Policies
2) Trusts
3) Pension plans

Front 47

Can the right to take elective share be waived in writing?

Back 47

Yes! (look for it in prenups)

Front 48

What is a pretermitted child?

Back 48

A child born or adopted after the execution of the will

Front 49

What is a pretermitted child allowed to take?

Back 49

The child's intestate share, unless it appears the omission was intentional
Note: NEVER TAKE PROPERTY FROM SPOUSE TO SATISFY PRETERMITTED SHARE

Front 50

What happens when a child is believed to be dead?

Back 50

1) No relief for child when T has mistaken belief UNLESS
2)will states the mistake and reasons why the child is omitted (but for death would have gone to kid) or
3) Fraud in inducement then constructive trust for kid

Front 51

What bars a person from sharing in the estate?

Back 51

1) Killing of the testator which is treated like he predeceased the T and
2) Standard is preponderance of the evidence

(A deserting spouse or fails to support for a year treated the same)

Front 52

Who has standing to contest a will?

Back 52

1) Any person who would share would increase if the will were invalid
2) Personal rep must defend, and if they want to challenge they must resign

Front 53

When will the T lack capacity?

Back 53

1) Didn't understand nature of act
2) Didn't know nature of property
3) Didn't know objects of his bounty or...
4) Did not understand disposition he wanted to make

Front 54

When does capacity matter?

Back 54

At the time of the execution

Front 55

What does adjudication of incompetency mean?

Back 55

Not conclusive apply 4 factors

Front 56

What is an insane Delusion?

Back 56

1) T otherwise sane, but suffers from delusion with respect to the will or gift the gift or will is product of an insane illusion

Front 57

What is undue influence?

Back 57

1) Challenger must show:
2)influence
3) overpower T's mind
4) But for Test

Front 58

When does a presumption of undue influence arise?

Back 58

When principal beneficiary is in a confidential relationship

Front 59

What is the effect of forfeiture clauses?

Back 59

Clause will not be enforced if there is probable cause

Front 60

What are the rules for Charitable Trusts?

Back 60

1)Not subject to RAP
2) Must be charitable purpose
3) When specific performance can't be done use Cy Pres (as near as possible

Front 61

What is a spendthrift trust?

Back 61

Income interest in trust is interest in property

Front 62

Can creditors get trust property from beneficiary in a spendthrift Trust?

Back 62

NO! Unless 1) Alimony 2) Child Support 3) Neccesities have been provided by the creditors 4) Settlor is trust beneficiary

Front 63

What is Self-Dealing?

Back 63

Trustee can't 1) buy or sell trust assests to the trustee 2) Borrow funds 3) Sell assets from one trust to another 4) Corporate trustee can't buy its own stock

Front 64

What is the prudent investor rule?

Back 64

1) Trustee must manage property as a reasonably prudent person would this means they have a duty to:
1) Keep trust productive
2) Balance return with potential risk
3)Maintain marketability
4)Diversity investments
5) No commingling
6) reasonably select agents when delegating duties

Front 65

What happens when a Trustee breaches Trust?

Back 65

The beneficiary can
1) ratify the transactions and waive
2) Sue for resulting loss or
3) In self dealing can "trace" profits and recover them

Front 66

What are "Powers of Appointment"?

Back 66

When a Settlor gives power to someone to appoint beneficiaries. This power is completely determined by the scope of the language of the will.