Intestacy & Wills

Question 1

Does the decedent intent matter in intestacy?

Answer 1

No

Question 2

Who is entitled to take in intestacy?

Answer 2

Heirs

determined only at death living people do not have heirs

Question 3

Who qualifies as a spouse?

Answer 3

legally married people ONLY

Question 4

When will spouse take entire share under intestacy?

Answer 4

When they both have the same children

or spouse only survivior

Question 5

When will spouse not take the entire estate?

Answer 5

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

Question 6

What must occur for a child take take intestate?

Answer 6

parent-child relationship

adoptive children are treated the same as biological

Question 7

What is requirement for posthumously Born Children

Answer 7

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

Question 8

What does per stripes require?

Answer 8

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

Question 9

What does per capita require?

Answer 9

divide where there is a first generation that survives

Question 10

Formal Requirements

Answer 10

signed writing, attested, testamentary intent

Question 11

Location of Signature

Answer 11

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

Question 12

What is capacity

Answer 12

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

Question 13

Witnesses Presence

Answer 13

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

Question 14

Line of Sight v. Conscious Presence requirement

Answer 14

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)

Question 15

What is interest witness?

Answer 15

Witness has financial interest in the will

CL: not competent to witness
UPC: abolished

Question 16

What is purge theory?

Answer 16

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

Question 17

What is purge theory?

Question 18

What is testamentary intent require?

Answer 18

present intent to make transfer

Question 19

What is testamentary intent require?

Answer 19

present intent to make transfer

Question 20

What happens if you fail to meet formalities?

Answer 20

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

Question 21

Holographic

Answer 21

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

Question 22

Codicil

Answer 22

supplement will does not replace underlying will, need same formalities

Question 23

What are will substitutes?

Answer 23

joint tenancy
revocable trust
pour over will
POD contract
deed

Question 24

How can will be revoked

Answer 24

subsequent instrument
phsycial act
by law

Question 25

How does subsequent instrument revoke will

Answer 25

by express: documented not oral by implied:create a later document that is inconsistent

Question 26

how does physical act revoke a will

Answer 26

destruction, burning, etc can be whole or in party

Question 27

What happens if will is lost

Answer 27

rebuttable presumption that is is revoked by physical act proponent must show by clear and convincing evidence that it is not revoked

Question 28

How does operation of law revoke a will?

Answer 28

divorce revoke will unless evidence otherwise shows

Question 29

Can third party revoke will

Answer 29

yes at T direction and conscious presence

Question 30

When is codicil revoked?

Answer 30

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

Question 31

What is republication?

Answer 31

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

Question 32

What does Dependent Relative Revocation?

Answer 32

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

Question 33

Who is settlor?

Answer 33

person who creates trust

Question 34

What title is held by each person?

Answer 34

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

Question 35

Irrevocable Trust presumption

Answer 35

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

Question 36

Revocable Trust Presumption

Answer 36

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

Question 37

Who can be a trustee

Answer 37

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

Question 38

Who is beneficiary

Answer 38

equitable interest holder who has the benefit of trust, and may enforce trust instrument can have multiple classes of beneficiaries

Question 39

does a trust need to be in writing?

Answer 39

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

Question 40

What is precatory language and its effect?

Answer 40

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

Question 41

What are express trust requirements

Answer 41

Intent Trust Res purpose beneficiaries

Question 42

what is trust res

Answer 42

trust must have property, if not property called an empty trust can be pour over will

Question 43

pour over will requirement

Answer 43

must be in writing at time will is executed

Question 44

what is beneficiary requirements for express trust

Answer 44

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

Question 45

What is charitable trust and requirements?

Answer 45

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

Question 46

Does RAP apply to trust?

Answer 46

Yes but not to charitable trust

Question 47

What is Cy PRes doctrine?

Answer 47

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)