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66 Cards in this Set

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  • Back
What are the requirements for a trust?
1) A trustee holding legal title to property for the benefit of the beneficiaries

2) No magic words, or wishes
What is Res?
It is the subject matter of the trust.
What must the Res be?
Certain and identifiable
What are the two rules for Beneficiaries?
1) Private trust must have ascertainable beneficiaries
2) Charitable trust need not have ascertainable beneficiaries
What are the rules for Trustees?
1) Must have one or more
2) Trust does not fail for want of a trustee (unless special person)
3) Court will appoint trustee
What is a revocable Trust?
These are a valid, it is where the Settlor reserves the right to revoke, alter or amend trust and obtain income during their lifetime
What is a pour over trust?
If the trust exists before or concurrently executed with a will the testamentary gift to the trust is upheld
What testamentary trusts are ineffective?
1) Secret trusts
2) Semi secret trusts
What is a secret trust?
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
What is a semi-secret trust?
1) Devise "in trust" with oral agreement
2) Resulting trust is created for the benefit of T's heirs
What are the 4 requirements of a will?
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
What is a self proving will?
1) self proving affidavit under oath
2) Formalities are conclusively presumed
How do you revoke a will?
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
How does a third party revoke?
1) At T's direction proved by 2 witnesses
2) In T's presence
What happens when you lose a will?
1) Proponent must prove the contents by clear and convincing evidence
2) Copy from attorney is sufficient
3) Testimony by interested witness is insufficient
What if a will is inconsistent with other stuff?
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
When you revoke a will what happens to the codicils?
They are all revoked
What happens when you revoke a codicil?
The underlying will is not revoked
What are the rules for Divorce in Wills?
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)
What happens when a will is partially revoked?
Partial revocation is ok to revoke a provision BUT
New provision if any is not given effect until re-execution or republication
What is a Dependent Relative Revocation?
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
What do you need to do to revive a will?
1) Republication and
2) Re-execute
What must you have to incorporate other documents into your will?
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
What is a Lapse?
1) Where beneficiary dies before the testator the gift fails and goes to the residue
What is an Anti-Lapse statute?
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
What is the Class gift rule?
Where a gift is to entire class and one member of the class dies the surviving member's still take
What is the Residuary Rule?
If the residue is left to two or more people and one dies, the remaining beneficiaries take in their proportionate share
What is Abatement?
The "priority" of certain bequests to pay off funeral expenses, administration expenses, and creditor's claims
What order does Abatement flow?
1) Intestate Property
2) Residuary Bequests
3) General Legacy
4) Demonstrative Legacy
5) Specific Devise
What is a specific Devise?
" I devise Blackacre to John"
Another Example:
" I devise my car to John."
Which car? Car at DEATH OF T
What is Ademption?
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
What are the Exceptions to Ademption?
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
What happens when there is an exception to exemption?
Specific devisee gets a general legacy equal to the amount of the remaining specifically devised gift
How does exoneration of Liens work?
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
How do you deal with Ambiguities?
Plain meaning rule: Cannot disturb the plain meaning of a will regardless of mistakes.
How do you deal with a Latent Ambiguity?
Extrinsic evidence is admissible to resolve a latent ambiguity. Otherwise the gift goes to the residue.
If no will how does intestate succession work?
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
If there is no surviving spouse then how does intestacy work?
Distribition order: 1) Issue, 2) Parents, 3) Brothers, sisters and their kids
How does Distribution work?
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
How do Bastard's inherit?
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
How does Adoption work with Wills?
1) Adoption cuts off rights from natural parents unless its a step parent adoption
2) Otherwise adopted child treated as regular child
How does the Simultaneous Death Act work?
120 hour rule:
Survivor must survive the decedent for 120 hours (5 days) to take
What is the rule for Satisfaction?
Lifetime gift is not a prepayment of will interests unless 1) will provides so 2) Decedent or heir acknowledge it in writing
What are the rights of a surviving Spouse?
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
What is the elective estate?
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
What is the elective share?
1) 1/3 the elective estate excluding nontestamentary transfers

1) Insurance Policies
2) Trusts
3) Pension plans
Can the right to take elective share be waived in writing?
Yes! (look for it in prenups)
What is a pretermitted child?
A child born or adopted after the execution of the will
What is a pretermitted child allowed to take?
The child's intestate share, unless it appears the omission was intentional
What happens when a child is believed to be dead?
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
What bars a person from sharing in the estate?
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)
Who has standing to contest a will?
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
When will the T lack capacity?
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
When does capacity matter?
At the time of the execution
What does adjudication of incompetency mean?
Not conclusive apply 4 factors
What is an insane Delusion?
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
What is undue influence?
1) Challenger must show:
3) overpower T's mind
4) But for Test
When does a presumption of undue influence arise?
When principal beneficiary is in a confidential relationship
What is the effect of forfeiture clauses?
Clause will not be enforced if there is probable cause
What are the rules for Charitable Trusts?
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
What is a spendthrift trust?
Income interest in trust is interest in property
Can creditors get trust property from beneficiary in a spendthrift Trust?
NO! Unless 1) Alimony 2) Child Support 3) Neccesities have been provided by the creditors 4) Settlor is trust beneficiary
What is Self-Dealing?
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
What is the prudent investor rule?
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
What happens when a Trustee breaches Trust?
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
What are "Powers of Appointment"?
When a Settlor gives power to someone to appoint beneficiaries. This power is completely determined by the scope of the language of the will.