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Trust & Estates > Final Exam > Flashcards

Final Exam Flashcards

1
Q

Will

A

unilateral written disposition of property to take effect on death

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2
Q

Testator

A

someone who executes the will

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3
Q

Probate (default)

A

process of proving and deciding the validity of a will before a court having competent J/d

includes all property owned by decedent NOT already determined will

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4
Q

functions of probate

A

performed by executor
collect all decedent’s assets and inventory them
maange all assets during time req to administer estate
pay all debts
distribute what remains according to will

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5
Q

Intestate

A
  • died without a valid will
  • will go through probate
  • state law decides how assets will be distributed
  • court appoints administrator
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6
Q

Bakanja Test

A

court will impose liability on attrny despite not having privity req with bb if:

  • extend to which transaction was intended to affect P
  • foreseeability of harm to P
  • degree of certainty that P suffered injury
  • closeness of connection b/w D’s conduct and injury
  • policy of preventing future harm

note: can sue if attrny negligently prepared will, new testamentary is too speculative

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7
Q

Beneficiary Restriction Clause

A

-will not vilate pp and will be enforced under testamentary freedom

BUT
condition precedent = good
condition subsequent = not good

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8
Q

Statute of Wills

A

allows opting out of default rules by drafting a will

allows to specify family and non family

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9
Q

Intestacy Statutes

A

default rules foverning who is entitled to inherit when decedent dies without a will

-favors close family memeber to carry out testator’s intent

NOTE: intestacy w/o a will = decedent

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10
Q

Rules of Construction

A

Will and WS interpretation

favors close family members to carry out testator’s intent

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11
Q

UPC 201- Who is a child

A

excludes a person who is a stepchild, foster child, gchild, etc

limited to one step below the descendant

NOTE: must establish a parent-child relationship to inherit from a parent as a child

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12
Q

Parent-Child Inheritance

A
  • must establish a P-C relationship before able to inherit as a child
    1. genetic relationship (includes wedlock)
    2. legal adoption
    3. Parent consented to be parent conceived by tech w/o genetic connection
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13
Q

Adoption Inheritance Rules

A
  • adoption severs the ties btw child and genetic parents
  • adopted child inherits through adoptive parents (vice versa) and through adoptive grandparents
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14
Q

Adoption Inheritance: Stepparent Exception

A

Genetic Parent + Adoptive Spouse= child can inherit through both natural parent and their stepparent that adopted them

2nd Genetic Parent + Stepparent =
child can inherit through Gparent BUT these parents cannot inherit from child

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15
Q

Equitable Adoption

A

court can find this type of adoption rather than legal adoption
allows child to inherit from

supposed parent in the absence of completed/formal adoption papers

NOTE: adult adoption issue*

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16
Q

ART Child and Inheritance

A

p-c exists btw child and mother who gives birth to ART child

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17
Q

Surrogacy Inheritance

A

p-c exists btw child and woman intending to be the mother by entering into gestational agreement

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18
Q

Mother-Child Relationship

A

gave birth to child
adjudication of woman’s materinity
woman adtops the child

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19
Q

Inheritance: Father-Child Relationship

A

genetic
adoption
assisted reproduction

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20
Q

Inheritance: Assisted Reproduction

A

-depends on intent, marital status, and consent

RULES:

  • H of birth mother = father
  • birth cert ID’s someone other than the birth mother = parent
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21
Q

Inheritance: Unmarried Men/Same Sex

A

consent- signed records BUT w/o

  • –functioned as parent of child within 2 years of birth
  • –intended to function parent but-for a death etc
  • –CC w/ child born after death of genetic P
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22
Q

Inheritance: Posthumous Conception via Frozen Embryos

A

policy: reproduction right, time to grieve
- child in womb at time of parent’s death = must survive 120 hours after birth
- child in womb within 36 months OR born no later than 45 months of death

NOTE: presumption is intended to be parent if person who used the sperm was married to, or functioned as parent BUT can be rebutted by CC ev

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23
Q

Inheritance: Establishing Father-Child Relationship (w/o genetic testing)

A

Marital Presumption:
—child born during the marriage OR child born w/i 300 days after termination of marriage

Other Presumptions:

  • -after child birth (1) married in compliance (2) voluntarily assert paternity (3) assertion in record with state agency, or named on BC, or promised in a record
  • –effective acknowledgement
  • –adjudication
  • –adoption
  • –consent to ART
  • –surrogacy (valid agreement)
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24
Q

Inheritance: Same Sex Couples

A

-adoption, consents, functions

If ART: signed a record consenting to ART, w/o record (1) functioned w/i 2 yrs of birth (2) intended to function but for death etc (3)CC ev that intended to be parent

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25
Q

Inheritance: Who is child?

Class Gift from NON Parent (grandparent/aunt)

A

Nonmarital Child: C only inherits if parent, spouse, relative functioned until C = 18

Adopted Child: must (1) be adopted before 18 OR (2) adoptive parent is stepparent or foster parent OR (3) adoptive parent functioned as parent before/until child = 18

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26
Q

Inheritance: Who is Child? Class Gift from PARENT/A.Parent

A

Adoptive Child OR NON marital Child =takes unless evidence says otherwise

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27
Q

When will parent NOT inherit?

A 
failure to support child 
P. rights are terminated 
abandoned 
abuse
neglect
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28
Q

Spouse Inheritance

A
  1. marriedd as of date of death
  2. CL marriage
  3. Putative Spouse
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29
Q

Inheritance: CL Spouse

A

living together
*holding themselves out in community as married
mutual intent to be married

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30
Q

Putative Spouse

A

this spouse acquires the rights of legal spouse and may be able to shares in the estate

  • -look for a ceremony
  • -considerations: which wife was married longer, good faith, marital property, kids, length of cohabitation
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31
Q

Intestacy laws

A
  • devations from statutory plan are NOT allowed for ANY reason
  • default rules for ppl w/o will
  • APPLIES when: (1) w/o will (2) will invalid (3) will does not dispose of entire estate

ONLY applies to probate property that is solely in decedent’s name

ONLY applies to blood, SS, legal adoption NOT friends or charities–if none escheat

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32
Q

Survival Rule

A

intestacy or will–heir or BB must sruvive the decedent

120 hours is default that taker must survive decedent

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33
Q

Share for SS in NON UPC

A
  1. SS 1/3, descendants 2/3
  2. 0 kids = ss 1/2 and parent 1/2
  3. 0 descendants/parents = entire estate goes to spouse
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34
Q

Share for SS in UPC

A
  1. no des/no parents OR joint descendants =
    - –SS = 100%
  2. parents and spouse but no descendants =
    - –spouse = 300k + 3/4 remaining excess
    - –parents = 1/4 remaining in excess of 300k
  3. SS + JD + Step kids =
    - –spouse = 225k + 1/2 remianing excess
    - –JD = 1/2 of remaining excess
    - –Step = 0
  4. SS + decedant’s own kids =
    - –spouse = 150k + 1/2 of remaining
    - –D’s kids = 1/2 of remaining
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35
Q

Share: W/o SS

A
  1. distributed among lineal descendants
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36
Q

Representation (Inheritance Distribution)

A

only living descendants can take

require relationships by blood or adoption to take NOT marriage

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37
Q

Representation Steps

A
  1. ID children
  2. ID any children that predeceased and if any, did they leave a descendant who outlive the intestate
  3. ID which of the 3 models state adopted
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38
Q

Strict Per Stripes

A
  1. divide the shares in line where there are living people
    - must surivive to recieve share
    - if dead, must have descendants
  2. those shares that belong to those that have died above, goes to their descendants
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39
Q

Modified Per Stirpes

A
  1. divide shares between living with descendants

2. next line, if upper is dead (got sh b/c descendants), next line with living descants gets the share divided btw them

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40
Q

Per Capita Method (Modern UPC)

A
  1. go to line with living and divide shares equally btw living and dead
  2. put dead ppl shares in a pot
  3. then divide the pot btw the living on the next line
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41
Q

Advancement

A
  • does not apply if there is a will (it would satisfaction)
  • only occurs if an HEIR was the recipient

Steps: Hotchpotch
1. add back advance to the pot
2. divide between heirs
3. subtract advance from person’s share who initially got the advance
BUT…
if advance person dies- hotpotch does not occur

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42
Q

Gift

A

absolute, unconditional transfer, does not need to be repaid

does not diminish share of inheritance from estate

not exactly a WS bc donor does not use/hold property throughout life nor is the property transfered as a result of the owner’s death

BUT it is like WS b/c bypass probate

Methods–trust or fee simple

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43
Q

Loan

A

must be repaid
if not repaid to decedant during life = asset of decedent’s estate

debtor must pay the heir entitled to collect on the loan

debt is not accounted for when determining shares

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44
Q

Lifetime Transfers: gifts or advances?

A
  1. CL = presumed advancements
  2. UPC = presumed gifts

Overcome gift presumption: so advancement IF:

  1. decedent delcared in contem. writing OR heir acknowledged in writing gift is advancement
  2. decedent’s contemp. writing or heir’s written acknowledgement states that inter vivo transfer is to be subtracted from share
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45
Q

Laws of Wills

A

requires near perfect compliance

signatures, witnesses, publication

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46
Q

Laws of WS

A

controled by K, Property, Trust laws

less formal

= nontestamentary

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47
Q

Benefits of WS

A
  • more certainty
  • easier, less costly to transfer out of state
  • privacy
  • creditor liability
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48
Q

Benefits of Probate

A
  1. creditor claims are resolved so pass w/ clear title
  2. controlled by judge
  3. personal rep of estate required to account and report of activities
  4. will can be revised and contested
  5. WS can never be amended
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49
Q

Trusts

A

transferor transfers title of property to the trustee who then holds and owns it in the trust for the benefit of present and future generations
—the trustee owns the property not the transferor

separates legal ownership

need to be funded at all times

irrevocable or revocable

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50
Q

JT with Right of Survivorship

A

on death, title passes to surviving joint tenant

most common, lease expensive (poor person will)

can be severed unilaterally by one of the JTs conveiny interest to a 3rd or by divorce = results in tenancts in common

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51
Q

Tenancy in Common

A

interest of co-tenant becomes probate b/c no survivor

52
Q

Tenancies by Entirety

A

for married couples

property is owned by marriage

cannot be severed unilaterally

53
Q

Gift Elements

A

inteniton by donor to transfer the property (all rights)

delivery by donor (give up dominion and control)
–come get it = NOT gift

acceptance of gift -usually presumed

IF NOT MADE = still owned by decedant and will go through probate

54
Q

Beneficiaries

A

invidividual
custodian (minors)
designated an executor or admin.
trust

55
Q

CL Rule of Lapse

A

If BB dies before decedent:

–all devises are auto and lby law conditioned on survivorship of testator

–if heir/devisee does not survive testator, right to inherit fails/lapses

May not apply to WS in 3 ways:

56
Q

WS vs. Will control?

A

WS unless there is substantial compliance with that policy’s instrument for effecting a change of BB may apply –NOT SURE

57
Q

Will Formalities provide:

A
  1. testator protection
  2. reliable proof of evidence
  3. environment that accentuaties finality of intent and execution
  4. assurange that doc will receive the anticipated legal recognition
  5. admin judicial efficiency
58
Q

4 Reasons of Will Formalities

A
  1. evidentiary–reliable/permanence of intent
  2. channeling–intent expressed to understand, is able to be processed routinely
  3. ritual/cautionary–asures intent to dispose party is serious and testator understands
  4. protective–testator lack of capacity, undue influence etc, not forgery
59
Q

4 Requirements of a Valid Will

A
  1. legal capacity
  2. testamentary capacity
  3. testamentary intent
  4. compliance with statutary formalities
60
Q

Legal Requirements of Testator

A

18 or over
testamentary capacity - sound mind, knowing will, extent and character, know family and bb’s
testamentary intent to make a will

61
Q

Formalities Required in Will

A
  1. in wiritng (not copy)
  2. signed by testator (proxy-conscious presence, under direction) on last page, intial each page
  3. 3 W’s sign within reasonable time after witness testator sign OR witness testator’s acknowledgment
    - —W must be in testator’s presence when testator signs/acknowledges
  4. OR instead of 3–can be signed with notary
62
Q

Attestation Clause

A

clause at the end of will which recites the property execution processes were followed that the W’s certify thta the instrument has been executed

63
Q

Self Proved Wills

A

If the W’s acknowledge via affidavits in front of the notarry that to the best of their knowledge the testator is 18, of sound mind, and not under undue influence, the W’s do not have to do so again before the court so the will proves itself

just means will can be admitted into probate

note: notarized wills can never be this b/c notaries are not W’s

64
Q

Holographic Wills

A

wills that are hand written and singed by the testator and do not require W’s

CANNOT be TYPED

does not have to attetation reqs but all others are required

testamentary intent is presumed, no need for words of art

must be written. NOT recorded

65
Q

Interpretation

A

process of determining testator’s actual intent from will’s language and extrinsic evidence

66
Q

construction

A

an attempt to assign meaning to a will provision when testator’s actual intent cannot be ascertained (interpretation failed)

67
Q

What Constitutes a Will

A
  1. Doctrine of Integration
  2. Incorporation by Reference
  3. Republication of Codicil
  4. Acts/Events of Significance
  5. Memo at Death
  6. Pour Over Wills
68
Q

Doctrine of Integration

A

pieces together papers to establish will

if pages are fastened together- no need to sign every page b/c shows intent to be one doc

words/parag’s/phrases/sentences will NOT be given affect if added after exution of will UNLESS intended to be part of will and were executed with the req formalities

69
Q

Incorporation by Reference

A

method of treating a doc as testamentary even tho doc is not physically part of will

RULE: writing is this IF

  1. in existence at time of will execution
  2. lang of will manifests intent to incorporate it
  3. will sufficiently describes the doc

can be any doc: codicil, memo, deed, note, list etc

70
Q

Codicil

A

these are amendment docs that are completed under the same formalities as those for wills and have same effect as if they were executed as part of will

a validly executed codicil which references a will that is invalid CAN validate that will by incorporation by reference, even though the codicil intended only to update the will which was unknown to have been invalid

71
Q

Republication by Codicil

A

treats an old will as if it were executed at a later date

a codicil incorporates all the provisions of the will it is updating

so the will is treated as having been executed on the date the codicil was finalized (moves the will date forward in time)

72
Q

Acts/Events of Indep. Significance

A

permits the use of facts and circumstances outside the will to impact the property disposition the tstator made in the will

allows certain evidence and events and acts outside the will to be admitted to dtm who receives so long as the circumstances have significance apart from the effect upon the will

73
Q

Memo at Death

A

3 Reqs: in writing, testator sign, specifically describe items, reference it in will

testator may draft a memo AFTER executing the will that leaves tangible, personal property, to certain ppl

CANNOT be $, real property or intangibles

some states won’t effectuate this

will takes precedence over external memo if conflicts

74
Q

Pour Over Wills

A

testators include a provision in will transferring some (residue) into a trust

75
Q

Plain Meaning Rule

A

if lang clear and unambiguous-intent is dtm by terms of will

if ambigous–extrinisic evidence

76
Q

Modern Rule of Interpretation

A

not plain meaning rule

look to donor’s intent in both will and through evidence

77
Q

Resolving Ambiguities in Will

A

Rule of Construction–interpret the will if possible in manner that prevents intestacy/ failure of transfer

78
Q

Mistakes v. Ambiguities

A

Majority: no e. evidence allowed to change mistakes

UPC: reformation of mistakes shld be allowed with clear and convicing evidence to show intent

79
Q

Specific Devices

A

gift of particular asset, specifically ID’d in will
if failed, distributed to residue

must contain “words of possesion” or “words of ID”

ex: my 100 shares of Wolter stock
ex: i leave stock cert #234 of Maple to A

80
Q

General Devises

A

gift of money for value
if failes, distributed in residue

ex: i give 50 shares of Wolter stock to X
ex: i leave 25k to B
ex: i give a computer to x

81
Q

Demonstrative Devise

A

gift of money/value paybale from specific source bit if that source is insufficient, then from other assets

ex: 1k from bank acct, or my happy stock

82
Q

Residuary Devises

A

residue of everything else not distributed through general, demonstrative, or specific devises

distributed ratably to other residuary BB’s, if none then to intestacy

83
Q

General Rule of Lapse

A

this is when BB dies before the testator

bequest goes to alternate if any
if none, ask if lapse rules apply
if don’t, then gift fails and passes through to residue
if no residue, then intestacy

84
Q

Antilapse –Exception to General Rule of Lapse

A

this saves gift from failing by allowing the gift to pass to descendants of BB (per stripes/Modern/PC)

4 reqs:

  1. intended BB must die before testator
  2. intended BB must leave living descendants
  3. intended BB must be a family member (no spouses
  4. will must not provide for an alternate gift (taker in default) or state that antilapse rules do not apply
85
Q

Class Gifts and Antilapse Rules

A
  1. if this and anti applies: descendants of deceased take the predeceased member’s share by rep
  2. if this and any DOES NOT appy: distributed equally to remaining class member
86
Q

Devise

A

gift in real property

87
Q

Bequest

A

gift of personal property

88
Q

Ademption by Extinction

A

what happens when the devise (specific) no longer exists but the BB is alive?

2 Theories:

identity theory

Intent theory

89
Q

Identity Theory

A

Ademption by Extinction

Majority

a specific devise adeems/fails if the propert is NOT owned by testator at death

no question to intent

allows for changes in form but not substance

90
Q

Intent Theory

A

Ademption by Extinction

Minority

seeks to dtm what the testator would have wanted to happen

new form should be substituted for the old form

606(a)(3)–property was disposed of and balance is owed to testator–BB recieves right to collect equivalent to the specific devise (p not if sold house)

(4-5) when property replaced with other property b/c foreclosure or testator action–intent to adeem but UPC allows like kind subs –same character (car replaced with car)

(a)(6)(b) someone inadvertently changes testator plan—BB has right to pecuniary interest (cash proceeds)

91
Q

Security Bequests

A

accesion applies when

(1) testator will devised specific securities
(2) at the time of will execution
(3) testator must own those securities that meet the will description
(4) additional securities owned by testator at death were acquired after the will executed
(5) additional securities owned by testator at death were acquired as a result of testator ownership

if meet those THEN:

BB is entitled to securities when:

(1) add securities of the same entity were issued bc of entity actions
(2) securities of other entities result from merger
(3) securities of same entity are acquired as a result of investment

92
Q

Satisfaction

A

the failure of a testamentary gift b/c testator has already transferred the property to the BB btw the time of the will execution and time of death

does not include specifc gifts b/c ademption

this affects the share that devisee’s descendants take from testator’s estate IF descendants take as substitute devisees under the UPC’s antilapse provisions unless testator’s contemporaneous writing expressly provides that the gift is not to affect the descendant’s devise

93
Q

Mortgages

A

CL: if devise did not instruct personal rep to pay off mortgage before distribution, silence = pay off mortgage first

94
Q

Exoneration

A

= not burdened by the mortgage

only occurs of there is express language in the will requiring it

95
Q

Abatement

A

the reduction or elimination of a testamentary gift to pay debts of the estate

Default:

  1. property not disposed of by will
  2. residuary devise
  3. general devises
  4. demonstrative devises
  5. specific devises
96
Q

Apportionment

A

Old Default: silence= taxes paid from residuary “shall be paid w/o apportionment”

UPC: silent= taxes are burdened pro rata on each bequest

97
Q

When death Occurs

A
  • irreversable cessation of curculatory/respiratory functions
  • -irreversable cessation of brain funcstions
  • death certificate
  • absent after 5 years
98
Q

wehn Co-Owners die at the same time

A

if not clear one died at least 120 hrs before the other:

1/2 and 1/2 as if survived by 120 hrs

99
Q

Disclaimers of Inheritance

A

if intended BB or heir disclsims all/part inheritance, interest passes as if they died before the intestate and passes to person who would have taken if disclaiming BB died before testator

100
Q

Valid Disclaimer Requirements

A 
in writing
declare the disclaimer
describe the interest or power disclaimed
signed by person making disclaimer
delivered and filed

BARRED: disclaimer accepts the interest sought to be disclaimed or voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or K’s to do so

Irrevocable and unconditional

101
Q

Wills are effective upon death UNLESS

A 
revoked or 
successfully changed (can be changed up until testator dies)
102
Q

Revoking a Will

A

2 ways:

  1. Documentary : explicitly or implicitly
  2. physical act with requisite intent that act was done to revoke (conscious presence and at testator direction)

for both MUST MEET:

  1. capacity to revoke
  2. intent to revoke
  3. revoked in legally effective manner
103
Q

Explicit Revocation

A

execute new will and include provision in the new will stating testator revokes any prior wills and codicils made by me and declare this the new will

104
Q

Implicit Revocation

A

Execute new will

via inconsistency either
in whole
or
in part –supplements old will rather than completely replacing it

105
Q

Cash Devises–Implied Revocations

A

CL: presumed cumulative
50k + 75k = 125

UPC: intent

106
Q

Strike-Outs

A

distribute through residuary devise

107
Q

Mutilated Wills

A

torn up, marks

if the will is found with revocatory marks, law creates a rebuttable presumption that testator intended to revoke the will

108
Q

Lost wills

A

if will is missing and was las in possession if testator–CL creates rebuttable presumption that testator destroyed it with intent to revoke

109
Q

Revocation by Marriage

A

UPC has default rules that revise the Will and WS based on new circums on assumption that testator did NOT anticipate these changes

Do not revoke on a later marriage but instead provides spouse with either (1) right to elect a share of marital property portion or (2) an amount equal to what would receive if testator died intestate

110
Q

Revocation on Divorce

A

Wills: revoke bequests

WS: does not revoke bequests but some states do

111
Q

Revocation due to Homicide

A

revokes bequests made to decedent’s killer if killing was felonious and intentional

treated as if disclaimed all bequests

112
Q

Disinheritance

A

binding on will and on intestacy distribution

CL: will disinherited an heir but did not pass all property, heir can still inherit through intestate property but not property distributed through the will

113
Q

3 Doctrines that Revive a Revoked Will

A
  1. Revival
  2. Dependent Relative Revoc/Conditional
  3. Harmless Error
114
Q

5 Arguments for Contesting Will

A
  1. improper execution
  2. lack testamentary capacity
  3. lack testamentary intent
  4. undue influence
  5. fraud/duress
115
Q

General Mental Capacity

A

lucid moment = valid
invalidates entire will

Cunningham Test: testator must

  1. understand the nature of her act
  2. know the extent of her property
  3. undrstand the propsed testamentary disposition
  4. know the persons whoa re the natural objects of her bounty
  5. the will represents her wishes
116
Q

Insane Delusion

A

invalidates affected devise

Must show:

delusion has no basis in reality and
connection btw deulsion and the bequest contested

117
Q

Undue influence

A

mess with mind

must prove: at the time will was executed

  1. existence and exertion of an influence
  2. effective operation of that inflence w/ goal to subvert/over power testator’s mind at execution
  3. would not have executed but for the influence
118
Q

Duress

A

physical harm

119
Q

Fraud/Duress

A

Fraud: wrongdoer knowingling/recklessly made a false rep to donor about material fact that was intended to and did lead to the transfer that would not have happened

Duress: someone threatens to or actually does something that coerces the testator into making the bequest

120
Q

Tortious Interference

A

When D is liable for a 3rd party tort claim and that claim interferes with the now P’s inheritance

P must prove:

  1. existene of expectancy
  2. reasonable certainty that expectancy would have been realized but for D
  3. D intentionally interferred wit hthe expectancy
  4. D’s intentional interference was fraud or tortious
  5. damages
121
Q

In Terrorem (No Contest) Clauses

A

usually not effective

will be effective IF:

  1. make the downside of losing too severe to risk challenging the will- won’t work if heir was already recieving a nominal gift
  2. specify what sort of condct falls under contesting the will
  3. specify who is to receive the devise
122
Q

Pre-Mortem Probate

A

some states permit a will to be probated before death so it precludes will contests

123
Q

K and Wills

A

A K to make a will or devise or to not revoke them or to die intestate will only be established by

  1. provisions in the will stating material provisions in the k
  2. express reference in the will to a K and e ev. prive the K terms or
  3. writing signed by the decedent evidencing the K
124
Q

Reasons to Make a TRUST

A
  1. minors so don’t want to make an outright gift
  2. person lack mgt skils
  3. spendthrifts
  4. person susceptible to influence
  5. avoid having to appoint conservator later in life
125
Q

Trust

A

A fiduciary relationship involving a settlor (trust creator), trustee( trust mgr) and BB

it splits up ownership among different ppl and splits them over time

trustee-legal title only
BB-beneficial title only

passes property in fee simple

126
Q

Qualified Beneficiary

A
  1. a dsitrbutee or permissible distributee of the trust OR
  2. would be a distributee/permissible distributee if interests of the distrbutees in (1) terminated on that date without causing trust to terminate OR
  3. would be distrbutee/permissible distributee of trust income or pinciple if the trust terminated on that date

Trust & Estates (1 decks)

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