MEE Wills and Trusts

Question 1

I dont have a will. What will happen?

Answer 1

No will = property passes by intestate succession.

Question 2

When can another paper be apart of the will?

Answer 2

If its incorporated by reference. Meaning:
- will manifests intent to incorporate
- will sufficiently identifies other document
- other doc exists when will is executed

Question 3

I died with no will + spouse + no issue

Most v UPC

Answer 3

Most: spouse gets everything
UPC: spouse gets everything but sometimes grandparents and parents get a portion

Question 4

I died with no will + living spouse + issue (child, grandchild, etc.)

Most v UPC

Answer 4

Most: Surviving spouse recieves portion and issue recieves a portion.
UPC: Survivng spouse gets everything if all kids and grandkids are issue of the surviving spouse

Question 5

I died with no will + no spouse + issue

Answer 5

Everything goes to kids/grandchildren

Question 6

I died with no will and was antisocial with no spouse or kids

Answer 6

Parents > Sister and Brothers > Nieces and Nephew > Remote Ancestors

Question 7

Once we know who is entitled to a portion of the estate, how do we divide?

Answer 7

• per capita at each generation (majority/UPC)
• per stirpes (common law)

Question 8

How do I explain per capita distribution

Answer 8

each descendant takes an equal share of the assets.

Question 9

how do i explain per stirpes distribution

Answer 9

each descendant takes a share of the assets by right of representation

Question 10

How do I make an attested will

Answer 10

1. testamentary capacity (nature and extent of property; natural objects of your bounty; understanding that you are disposing of property; the ability to connect all the above elements)
2. testamentary intent (intended the document be a will)
3. capacity at least 18
4. writing signed testator and two witnesses

Question 11

How can i make a will other than attested

Answer 11

a holographic will in some states; writing mostly in T’s handwriting, signed, and stated intent to be a will

Question 13

How much of stock do I get?

CL v. UPC

Answer 13

Common law =
- specific bequest of stocks includes
- any additional shares produced by a split stock
- but not dividends
UPC =
- a specific bequest of stock includes stock dividends.**

Question 14

Decedent gave me gift during lifetime. What do i do?

Answer 14

CL: lifetime transfers presumed to be advancements
UPC: lifetime transfers are presumed to be gifts unless evidence suggests decedent intended it as an advancement

Question 15

What happens if the stuff I was supposed to get in the will is gone?

Answer 15

• doctrine of ademption applies
• when specifically bequeathed property is not in the testator’s estate at death, the bequest fails.
• Most court use and objective test and the testator’s intent is irrelevant.

Question 16

What happens if I killed the decedent/testator?

Answer 16

One who intentionally brings about death of decedent forfeits any interest in the decedent’s estate; distributed as if killer was dead

Question 17

What if i want to change my will? or I have changed it?

Answer 17

• A codicil is an amendment to a validly executed will
• A will is treated as executed on the date of the most recent validly executed codicil

Question 18

In a discretionary trust,

Answer 18

the trustee is given discretion whether to apply or withold payments of income or principal (or both) to beneficiary

Question 19

“secret” trust distinguished from “semi-secret” trusts examples

Answer 19

secret (no mentioned of bene or trust) :
- A person wills their house to their friend “Bob” with the understanding, communicated outside the will, that Bob will then give the house to their niece “Alice”.
- enforceable by clear and convincing extrinsic evidence

semi-secret (reveals existence of trust but not bene):
- “I leave $50,000 to Mary to be used according to our prior discussions”
- the will acknowledges a trust exists, but the specific details of who the beneficiaries are and how the money should be used are not written in the will.
- property reverts to estate / unenforceable

Question 20

Spendthrift trusts or provisions

function? validity? not protected from creditors if/when?

Answer 20

• function is to prevent creditors from accessing beneficiaries interest
• valid only if restrains both voluntary and involuntary transfers
• clause cannot be used to shield the beneficiary from:
• court order child/alimony payments, support and maintance for bene, child, former spouse, spouse, etc.
• if settlor is beneficiary (this would arise if they did this solely to avoid creditors; unjust and dumb)

Question 21

What are the generally duties of a trustee?

Answer 21

1. duty of care
2. duty of loyalty
3. delegation
4. investments/prudent investmentrule
5. duty to inform
6. duty to account

Question 22

What is trustee’s duty of care?

Answer 22

• T must administer the trust in good faith
• T’s discretionary decisions may be challenged if T failed to exercise good judgment
• T held to a heightened standard and must use his special skills
• exculpatory provisions in trust ok but does not excuse bad faith acts

highly tested

Question 23

what is trustee’s duty of loyalty?

Answer 23

if T engages in self-dealing, the court will not inquire further into T’s motives because it is a per se breach of duty
(unless terms of trust allow or it, still must be fair and reasonable)

self-dealing:
- buy or sell trust assets for himself
- transfer props between trusts
- borrow funds or make loans
- use trust assets to secure personal loans
- engage in prohibited activities
- otherwise act for personal gain through trustee position

no fraud or bad faith required for breach

Question 24

can trustee delegate duties?

Answer 24

modern law allows T to delegate duties if it is unreasonable to expect trustee to perform the task (e.g., investment strategies) and T must oversee the decision making

Question 25

what is the trustee's duty in re to trust investments?

Answer 25

- invest and manage as a prudent investor would in investing his own property - utilizing any special skills or expertise he possess - evaluated by evaluating entire portfolio - duty to diversify/make property productive

Question 26

What are the two ways that a judicial modification of a trust appropriate? ## Footnote highly tested

Answer 26

- cy pres doctrine: if a charitable trust's purpose becomes unlawful, impossible, or impractiable the court may modify as close as possible with settlor's intent - deviation of trust: trustees and benes can request the court permit a deivation from administrative provisions

Question 27

cy pres doctrine only applicable if: ## Footnote highly tested

Answer 27

1. property is placed in a **trust for a charitable** purpose that has become unlawful, impossible or impractiable to carry out, and 2. settlor manifests a **general charitable intent** to devote property to charitable purposes (most courts **presume**) - absence of a reverter clause is evidence of the settlor's general charitable intent - if reverter clause present, court will revert trust property to parties specified in clause (when it becomes unlawful, impossible, imprac, etc.)

Question 28

What is the rule against perpetuities under common law

Answer 28

- a future interest - must vest within 21 years - of a death of a life in being - if there is any possibility that future interest will not best, interest = invalidated

Question 29

What is the rule against perpetuities under "wait and see" jdxs

Answer 29

- some courts will "wait and see" if future interest actually does fail to vest - distinguishable from common law because it doesnt invalidate the possibility that it will fail to vest

Question 30

what is the modern trend for rule against perpetuities

Answer 30

- under modern trend - some courts will reduce age contingencies exceeding 21 years - to validate a conveyance that would otherwise violate common law RAP ## Footnote O conveys Greenacre to A for life, then to A’s children who reach the age of 30. This conveyance would be invalidated under the common law, because there is a possibility that the interest would not vest within 21 years after A’s death. However, the modern trend allows courts to rewrite the conveyance to: O conveys Greenacre “to A for life, then to A’s children who reach the age of 21.”

Question 31

trustees and benes can request court permit a **deviation** from **administrative provisions** if:

Answer 31

- purpose of trust has been satisfied; - purpose of trust has become unlawful - purpose of trust are impossible to carry out

Question 32

examples of charitable purpose

Answer 32

- relief of poverty - advancement of education, science, art - advancement of religion - promotion of health - governemnt purposes such as parks or museums | court decides what is a charitable purpose

Question 33

How do you create an express trust?

Answer 33

[ insert elements from E&T outline]

Question 34

what is it and how do u create a testamentary trust

Answer 34

A testamentary trust is created through ***provisions of settlor's will***; it does not come into existence until settlor's death (so long as valid) Creation requires: (1) the will to **state the essential terms** (bene, purpose, trust prop) and (2) **intent** to create a trust either - by express terms or - by incorporation by reference

Question 35

what does common law v UTC say about revocability?

Answer 35

under majority (CL): - a trust is irrevocable unless the settlor expressly retains the right to revoke or amend the trust under minority (UTC): - a trust is revocable unless trust expressly provides otherwise

Question 36

definition of trust

Answer 36

- a trust is a fiduciary reltaionship b/w trustee and benes - trustee holds legal title to the property and becomes owner of record for property - beneficiary holds equitable title to property and is entitled to financial benefits

Question 37

1) what is a discretionary trust and 2) how do we know when trustee abused their discretion

Answer 37

- occurs when trustee has absolute power and discretion to distribute property to benes - exercise must be in good faith - court will ony interefere if abuse of discretion - abuse depends on: 1. terms of trust instrument 2. other duty of trustee (care, loyalty, etc.) ## Footnote high tested

Question 38

spendthrift trusts and rights of creditors

Answer 38

[ put course companion stuff] ## Footnote spendtrhift trusts and rights of creditors tested together

Question 39

support trusts or hems trusts

Answer 39

[ put stuff from E&T outline]

Question 40

three parties involved in creation of trust

Answer 40

1. settlor: person who creates the trust 2. trustee: person who holds the assets of the trust for benefit of beneficiary, and manages its assets 3. bene: person who is entitled to the assets or profits of trust

Question 41

a constructive trust....

Answer 41

- is not a trust but rather a **remedy** to prevent unjust enrichment from wrongful conduct - must show particular property was involved in improper conduct

Question 42

The creation of a trust involving [....1] must comply with the Statute of Frauds, while the creation of a trust involving [...2...] need not comply with the Statute of Frauds.

Answer 42

1) real property 2) personal property (without real property)

Question 43

An ascertainable beneficiary exists;

Answer 43

1) At the time of trust creation, the settlor must either: A. Specifically identify the beneficiary by name; **OR** B. Sufficiently describe how the beneficiary is to be identified (e.g., “my children” is sufficient –– “my friends” is not sufficient). 2) The beneficiary must be able to possess title to property (e.g., an animal cannot be a trust beneficiary). However, the beneficiary need not have capacity to manage the property. 3) Settlors and trustees can also be beneficiaries; however, a sole trustee cannot be the sole beneficiary of the trust.