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Themis: Wills/Trust > Intestacy & Wills > Flashcards

Intestacy & Wills Flashcards

1
Q

Does the decedent intent matter in intestacy?

A

No

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2
Q

Who is entitled to take in intestacy?

A

Heirs

determined only at death living people do not have heirs

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3
Q

Who qualifies as a spouse?

A

legally married people ONLY

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4
Q

When will spouse take entire share under intestacy?

A

When they both have the same children

or spouse only survivior

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5
Q

When will spouse not take the entire estate?

A

If there are spouse and parents, takes $300,000 & 75% remaining

If spouse and other children, outside marriage spouse gets 225k and 1/2 estate

If spouse and nonspousal kids, spouse takes 150k and 1/2 remaining

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6
Q

What must occur for a child take take intestate?

A

parent-child relationship

adoptive children are treated the same as biological

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7
Q

What is requirement for posthumously Born Children

A

conceived before dad born

if born within 280 days of husband death may inherit, rebuttable presumption that child is husbands

300 days under the UPC

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8
Q

What does per stripes require?

A

divide share equally at the first lineal line & representative will take if child passes

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9
Q

What does per capita require?

A

divide where there is a first generation that survives

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10
Q

Formal Requirements

A

signed writing, attested, testamentary intent

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11
Q

Location of Signature

A

some states require at the end and anything coming after is invalid

UPC and other states say anywhere it is okay

formal signature not required just need into

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12
Q

What is capacity

A

18 years of age and of sound mind measured at time of signing

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13
Q

Witnesses Presence

A

in presence of at least two witnesses , sign document doesn’t need to be at the same time

Most JD: testator need to be in presence of witness and vic verse

UPC: witness sing within reaonsable time of testators

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14
Q

Line of Sight v. Conscious Presence requirement

A

line of sight traditional approach T must observe witness sign

Conscious presence requirement modern approach witness or T must be ware that act is being performed (UPC only requires if will singed on behalf of T)

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15
Q

What is interest witness?

A

Witness has financial interest in the will

CL: not competent to witness
UPC: abolished

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16
Q

What is purge theory?

A

interested witness does create invalid, there interest were purged and could gain in excess of what witness would take under intestate succession UNLESS

two other disinterested witness or interest witness would take in intestates and lease share

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17
Q

What is purge theory?

A
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18
Q

What is testamentary intent require?

A

present intent to make transfer

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19
Q

What is testamentary intent require?

A

present intent to make transfer

20
Q

What happens if you fail to meet formalities?

A

under common law need strict compliance
modern law (UPC, minority view) substantial compliance with clear and conniving evidence D intended to make will

21
Q

Holographic

A

not witnessed but signed & intent (UPC says EE can be look to intent)

writing:
some JD: any marking not in their handwriting not valid
UPC: material provision need to be in their handwriting

22
Q

Codicil

A

supplement will does not replace underlying will, need same formalities

23
Q

What are will substitutes?

A

joint tenancy
revocable trust
pour over will
POD contract
deed

24
Q

How can will be revoked

A

subsequent instrument
phsycial act
by law

25
Q

How does subsequent instrument revoke will

A

by express: documented not oral

by implied:create a later document that is inconsistent

26
Q

how does physical act revoke a will

A

destruction, burning, etc

can be whole or in party

27
Q

What happens if will is lost

A

rebuttable presumption that is is revoked by physical act

proponent must show by clear and convincing evidence that it is not revoked

28
Q

How does operation of law revoke a will?

A

divorce revoke will unless evidence otherwise shows

29
Q

Can third party revoke will

A

yes

at T direction and conscious presence

30
Q

When is codicil revoked?

A

if revoke will the codicil will also be revoked, if cicild revoked underlying will is survived

31
Q

What is republication?

A

UPC does not recognize automatic revival of revoked will must re-execute the prior will

32
Q

What does Dependent Relative Revocation?

A

revives revoke will if based on mistake of law or mistake of fact

33
Q

Who is settlor?

A

person who creates trust

34
Q

What title is held by each person?

A

trustee owns legal title and manages the property for the benefit of the beneficiary who holds equitable title

35
Q

Irrevocable Trust presumption

A

can’t be revoked under traditional rule it is presumed irrevocable unless he trust documents say otherwise

36
Q

Revocable Trust Presumption

A

UTC presumption that trust is revocable and can be revoked anytime during settlors lifetime

37
Q

Who can be a trustee

A

a trustee is a person who hold legal title and right to manage, can be individual bank or trust

trust will not fail if there is no named trustee

38
Q

Who is beneficiary

A

equitable interest holder who has the benefit of trust, and may enforce trust instrument

can have multiple classes of beneficiaries

39
Q

does a trust need to be in writing?

A

majority rule : no oral trust doesn’t have to be in writing UNLESS SOF applies or a devise (created in will)

minority rule: must be in writing

40
Q

What is precatory language and its effect?

A

language that expresses donors hope or wish, not suffient to create a trust need stronger intent

41
Q

What are express trust requirements

A

Intent
Trust Res
purpose
beneficiaries

42
Q

what is trust res

A

trust must have property, if not property called an empty trust

can be pour over will

43
Q

pour over will requirement

A

must be in writing at time will is executed

44
Q

what is beneficiary requirements for express trust

A

beneficiaries must be ascertained UNLESS

unborn children, class gifts (must be definite), or charitable trust

45
Q

What is charitable trust and requirements?

A

must have charitable purpose

EX: relief property, religion, promotion of goof health, benefits particular segment of community or public at large

46
Q

Does RAP apply to trust?

A

Yes but not to charitable trust

47
Q

What is Cy PRes doctrine?

A

court can modify charitable trust if purpose is no longer possible
to modify you need general charitable purpose close to the original. UTC will presume general purpose

if no general purpose , property goes to resulting trust (send back to settlor)

Themis: Wills/Trust (7 decks)

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