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72 Cards in this Set
- Front
- Back
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Strict Per Stirps |
shares for each line of descendants are always divided at first generational level, and then one share for each family line |
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modern per stirpes |
UPC- Per capita with representation, per capita at the first level, then by representation -divide shares at first generational line with living takers and then one share for each family line |
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Not survived by descendants or spouse |
all to surviving parents, then descendants of parents, half to ma/paternal grandparents/descendants laughing heirs- no inheritence by kin further than descendants of GP's |
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intestate share of adopted child |
child takes from and through adoptive parents, severs ties with genetic, except when child is adopted by spouse of genetic parent. |
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intestate share of non-marital children |
from and through mother from father if paternity suit, father acknowledged paternity or probate proceedings |
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lifetime gifts to an heir or beneficiary (COMMON LAW) |
presumptively an advancement of intestate share, to be taken into account while distributing estate |
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lifetime gifts to an heir or beneficiary (UPC & MAJORITY) |
gift is not an advancement unless declared as such in contemporaneous writing by donor, or acknowledged as such in writing by donee |
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disclaimer |
must be in writing, signed and notarized must be filed within 9mo of test death disclaimer can be partial cannot disclaim after accepting an interest or benefits disclaimer cannot attempt to control who takes |
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simultaneous death |
when title to property depends on order of deaths and no sufficient evidence who died first, property passes as though beneficiary survived |
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UPC simultaneous death |
unless beneficiary survives test by 5 days, considered predeceased |
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Requirements of will |
1. signed by testator (or at direction 2. signature in presence (acknowledge sig) to witnesses 3. two attesting wits who saw t sign will or t ack it was her will 4. wits must sign in reasonable time after |
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interested witness rule 2-505 |
UPC: signing of a will by interested witness does not invalidate will or any provision |
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Attestation clause |
prima facie evidence of the facts recited and is important with witnesses |
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line of sight test conscious present test |
LOS: testator could see witness sign if looked, uninterrupted line of vision CP: witness is present if the test, through sight, sound or other senses, is cognizant that wit is in act of signing |
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Attorney liability |
minority: cannot sue b/c no contract Majority: privity is rejected, attorney has duty to inteded beneficiaries |
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Holographic will |
UPC recognizes handwritten and signed by testator, no wits |
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Conditional will |
should probate be denied because condition was not met? or did alleged condition merely reflect the motive or inducement for making the will If T still has will after condition not occured, evidence that he intended it to remain valid |
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valid revocation |
subsequent test instrument, executed properly OR physical act decisive act(crossing out signature) must be on executed will itself, not copy proxy, must be test direction and in test presence |
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harmless error doctrine UPC 503 |
court may excuse noncompli if there is clear and convincing evidence that decent intended doc to be will |
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substantial compliance doctrine |
court may deem defectively executed will as good, if defect execution nonetheless fills the purpose of formalities. |
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self proving affidavit UPC 2-504 |
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lost will |
1. proof of due execution (testimony of wits) 2. cause of wills non production 3. contents must be substantially proved by copy or testimony by wits who have read the will |
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Presumptive revocation |
only if last with testator 1. if will last will test, and not found after death, presumed test revoked by physical act 2. if will last with test, found mutilated, presumption is test did mutilating. (evidence allow to rebut resumptive rev) |
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two wills that do not reference each other |
1. read together to extent possible 2. second will is treated as codicil(replaces inconsistencies) 3.BUT if second will wholly inconsistent, first will is revoked by implication |
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Dependent relative revocation |
premits revocation to be disregarded when act of revo was premised, conditioned, or dependent upon, mistake of law or fact as to the validity of another disposition Only applied if disregarding revo would bring closer to test attempted to do but failed versus intestacy |
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will beneficiary predeceases testator |
predec bene must have been w/in scope of antilapse AND have descendants that survived testator. Legacy passes to predec bene if bequest lapses, gift falls into residuary estate "If he survives me clause" antilap does not apply, follows terms |
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lapse in residuary estate |
if residuary estate is devised to 2+ persons, and gift to one fails for any reason other resid devisees take entire residual in proportion to their interest antilapse statutes overrides surviving benefic rule |
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Class gifts |
if gift to class of persons, if a member of class predec test, the class members who surivive the test take as opposed to individual gifts which carry over to residuary |
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Rule of convenience |
class closing rule, later born class members do not share in the gift |
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marriage after will executed |
omitted spouse takes intestate share (only as to that portion of the estate that was not devised to test's children or descendants from earlier marriage) UNLESS S appears omission was intentional OR provision was made for spouse outside the will and is shown that transfers were |
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child after will |
pretermitted child takes intestate share UPC- if T had other children when will was exec with prop to them, pretermitted child share is limited to gifts to other children UNLESS it appears from will (no ex ev) that omission was intention repub by codicil- new will on date of codicil, pretermitted child loses status |
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abatement to pay creditors |
demonstrative legacies are treated the same as bequest to extent of the value of the specified property, and as a general legacy to the extent of any excess |
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Ademption Doctrine |
if will makes specific gift of property, and prop is not owned by test at death, gift fails under ademption. Ademption does not apply to demonstrative legacies (general amount from specific source), ademption only applies to specific legacies |
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Exceptions to Ademption Specific devisee takes any remaining specifically devised property... |
1 any unpaid balance of the PP by the sale of the property 2 any amount of condemnation aware for taking of the property 3 any amount of fire/casualty insurance for damaged or destroyed property at death |
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Ademption and will executed before T declared incapacitated |
if prop specifically devised and sold by guarding or conservator, specific devisee has general legacy equal to the net sale price or insurance proceeds. (otherwise guarding could change will by selling certain assets, nor did T have capaciy to change will to adjust for loss or destruction |
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specific bequest of encumbered property |
specific devisee takes exactly what T owned (title subject to mortgage) unless will specifically directs for lien to be exonerated from the residuary |
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Incorporation by reference |
writing must exist at time of will will must show intent to incorporate will must describe the writing sufficient to permit its identity UPC will may refer to written state or list (tangible personal property other than money, property used in trade/business) not specifically disposed of AND be signed AND be written before or after |
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acts of significance doctrine upc 2-512 |
lifetime act with a lifetime motive or purpose will not affect the will same result for "contents of cabinet" execpt that those contents will not be deemed to include title documents; deeds, stock certs, bank passbooks |
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plain meaning rule 2-805 |
absent suspicious circ, presumed testator read the will and intended contents, any ex ev would change the meaning of words in will |
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contracting wills UPC 2-215 |
can only be established by provision stating that contract does exista AND stating the material provisions of the contract OR a binding and enforceable written agreement |
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disinheritence 2-101b |
authorizes the decedent, by will, to exclude or limit the right of an individual or class to share in the decedent’s intestate estate, in effect disinheriting that individual or class |
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non testamentary assets |
property by survivorship (joint bank account) passing by contract (life insurance, employee retirement benefits) prop held in trust, including revocable trust where terms govern dis of assets proper which decedent held power of appointment |
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capacity for will |
1 be capable of knowing and understanding the nature of act 2 know the natural objects of bounty 3 disposition that they are making of that property 4 be capable of relating these items to one another and forming and orderly desire regarding the disposition of the property |
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insane delusion 3-407 |
must be shown that delusion materially affected disposition of the will AND test would not have disposed of property as he did, BUT FOR that delusion |
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undue influence 3-407 |
exerted influence over testator that over come donor's free will confidential + suspicious relationship=presumption of UI Confidential only is not enough, but if confidential and only if person is receiving something, creates presumption |
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fraud in inducement |
misrep causes test to execute/revoke will in wrongdoer's favor |
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fraud in execution |
test is tricked into signing. wrongdoer intention misrep the content or character of instrument which does not carry out test's intent |
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trust |
an arrangement where a trustee manages specific property as a fiduciary for one or more persons |
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settlor |
person who creates the trust by will or inter vivos transfer |
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trustee |
holds legal title to the res, usually can sell the property and replace with more desirable |
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beneficiaries of trust |
holds equitable title in the trust persons who benefit trust is created entitled to payments from trust income SAME party can be all, just need another trustee or beneficiary, |
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classifications of trusts |
duties imposed on trustee (active or passive) purpose of trust (private or charity) manner of creation (express, resulting or constructive) time of creation (inter vivos or testamentary) |
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Trust Intent upc 402 |
intent to create a trust exists whenever one party transfers property to anther with intent to vest beneficial interest in a 3rd party |
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Trust Res |
trust not created till funded (res) property must be transferred to trust/trustee |
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Trustee & 1+ benefits |
for valid trust, must be ascertainable benficiriaries When settlor intends to create a trust, equitable title transfer to beneficiares instantly except for unborn children and charitble trusts |
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Powers of appointment 2-608 |
if class of bene's is described such that some person might reasonably be said to fit description, power of appointment is valid, otherwise invalid holder of the power of appointment owe no fid duty to appointees |
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Noncharitable purposes of Trust |
honorary trust- transferee is not obligated to carry out settlor's purpose, if does not, reverts back to settlor or estate |
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mandatory trusts |
trustee must distrib income to the beneficiary |
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discretionary trusts |
beneficiary has no right to receive payments of income or principal |
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support trusts |
requires trustee to pay as much income as required for bene's support |
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sprinkle trust |
trustee is authorized to accumlate income and add it to principal |
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spray trust |
trustee must distribute all income currently, but has discretion to determine which bene's get it and the amount |
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Trustee's duty of loyalty § 802 UTC |
everying must be done in beneficiary's best interest Self dealing= irrebuttable presumption of breach of loyalty. transaction is voidable by bene's only defense is judicial approval, autho by settlor or consent by ALL bene's |
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Duty of Prudence UTC 804 |
1 standard of prudence is applied to any investment as part of the total portfolio, rather than to single investments 2 Trustee can invest in anything that plays an appropriate role in achieving the risk/return obj of the trust and meets other prudent investing requirements |
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Duty to Inform utc 813 |
must keep beneficiary reasonably informed about admin and material facts necessary for them to protect their interests |
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Duty to Account utc 813 |
trustee has a duty to provide to the beneficiary complete info re the trust including review of trust related documents upon the beneficiary’s reasonable request for such information. trustee must, prior to a non-routine transaction, inform the beneficiaries of any material facts affecting the beneficiaries’ interests. |
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Modifying and Terminating Trusts UTC 412 |
court may modify trust if: 1 because of circumstances not anticipated by settlor 2 modification or deviation will further the purpose of the trust |
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Trust Protectors UTC 808(c) |
given power to amend or terminate the trust, with the approval of the 3rd party |
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General Powers of Trustee UTC 815 |
trustee has the same powers in dealing with trust property as would an outright owner |
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Trustee Breaches |
A trustee who engages in self-dealing breaches his fiduciary duty regardless of whether he was acting in good faith and the trust suffered no injury as a result. |
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Remedies for breach of fid duties as trustee |
bene is entitled to compensatory damages to restore trust to prior to breach, in addition, entitled to disgorge the trustee of any profit he/she made OR can enforce a constructive trust or equitable lien on property, treating it as part of the trust. |
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no further inquiry rule |
if trustee involved in self dealing or COI, no further inquiry made Only defenses are that settlor authorized action, beneficiary consented after full disclosure OR trustee obtained judicial approval in advance even so, bene is entitled to judicial review |
