T & E Study Cards Flashcards

Question

What is a de facto parent?

Answer 1

an individual who has functioned as a child’s parent for a significant period such that the individual formed a coned and dependent parent-child relationship and who has been adjudicated a de facto parent under UPA § 609 and UPC § 20115(3). Note that § 2-119(c) does not sever the parent-child relationships with an individual who is a parent of a child before a court declares another individual a de facto parent of the child.

Answer 2

Foster children and stepchildren are generally not included in the term “child” for purposes of the intestacy or construction of wills and trusts. Some stepchildren may be included in class gifts under UPC § 2-705(c), which generally excludes “in-laws” but may include some, including stepchildren, if it was foreseeable that a class would otherwise be empty at the time the instrument was executed. In some states, stepchildren may be eventual takers in intestacy when no other heirs exist. But even in those cases, they do not take as “children.”

Answer 3

Bequests in a will or trust that refer to the beneficiaries by relationship. For example, it is a class gift if Ellen leaves a bequest to “my children,” “my grandchildren,” or “my descendants” in her will.

Answer 4

UPC § 2-705(b) provides that the term shall be interpreted using the same rules used to interpret those terms in the intestacy statutes.

Answer 5

It may not... for example, if a grandparent leaves a gift in their will to “my grandchildren” or if a sister leaves a gift to “the children of my brother Carlos”...special rules apply with respect to determining the members of the class.

Answer 6

1) decedent's surviving spouse was entitled to the entire probate estate if the decedent did not leave a surviving issue or surviving parents. 2) if the decedent left a surviving issue/issues (all of whom were ALSO issues of surviving spouse), or if decedent left a surviving parent = spouse's share was the first $50,000 plus one-half of the balance of the intestate estate. 3) if decedent was survived by a child (or descendants of a deceased child) who was not also a child of the surviving spouse, the spouse's share was one-half of the probate estate.

Answer 7

If: 1) no descendant or parent of the decedent surviving the decedent; or 2) all of the decedent's surviving descendants are ALSO descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.

Answer 8

surviving spouse gets the first $300,000 [+COLA], plus 3/4 of any balance of the intestate estate.

Answer 9

surviving spouse gets the first $225,000 [+COLA], plus one half of any balance of the intestate estate.

Answer 10

surviving spouse gets $150,000 [+COLA], plus 1/2 of any balance of the intestate estate.

Answer 11

(1) the surviving spouse or state registered domestic partner shall receive the following share: (a) all of the decedent’s share of the net community estate; and (b) One half of the net separate estate if the intestate is survived by issue; or (c) 3 quarters of the net separate estate if there is no surviving issue, but the intestate is survived by one or more of his parents or her parents, or by one or more of the issue of one or more of his or her parents; or (d) all of the net separate estate, if there is no surviving issue nor parent nor issue of parent.

Answer 12

1) were they married under state law? - if so, was there a subsequent divorce or annulment rendering the spouse an ex-spouse. 2) could they qualify as a common law spouse (few states recognize such marriages) 3) did they believe in good faith they were married? - could claim putative spouse 4) merely being cohabitants does not generally qualify one as a spouse of inheritance purposes.

Answer 13

1) Living together 2) Holding themselves out as married 3) Having the mutual intent to be married. Once formed a common law marriage is valid for all legal purposes and can be dissolved only through formal divorce.

Answer 14

the remaining probate estate is made to the decedent's surviving lineal descendants.

Answer 15

any part of the intestate estate not passing under section 2-102 to the decedent's surviving spouse passes to the decedent's descendants or parents as provided in subsections (c) and (d). If there is no surviving spouse, the entire intestate estate passes to the decedent's descendants, parents or other heirs as provided in subsection (c) through (j).

Answer 16

If any decedent is survived by one or more descendants, any part of the intestate estate not passing to a surviving spouse passed by representation to the decedent's surviving descendants.

Answer 17

a parent child relationship is established between an individual and a child if: (1) the individual gives birth to the child [there are exceptions to this though] (2) presumptions under UPA section 204 (marital presumption) (3) individual is adjudicated a parent of the child (4) individual adopts the child (5) individual acknowledges parentage of child under article 3, unless the acknowledgment is rescinded under section 308 or successfully challenged under article 3 or 6; (6) assisted reproduction (7) surrogacy agreement

Answer 18

Yes! this applies to both men and women since same-sex marriage is now legal.

Answer 19

UPA section 703 provides a general rule an individual who consents to assisted reproductive technology by a woman with the intent to be a parent of a child is a parent of a child. UPA 705 provides that a spouse's consent to a woman using ART is presumed.

Answer 20

on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child. Additionally, each intended parent is a parent of a child conceived by assisted reproduction under a validated genetic surrogacy agreement...however genetic surrogates can exercise the right to terminate a genetic surrogacy agreement through a specified process.

Answer 21

UPA 204(a)(1)(B) provides that a child who is conceived before a parent's death and who is born within 300 days of that death will be a child of that parent for purposes of inheritance.

Answer 22

yes, generally, a person who is established as a parent would generally inherit from a deceased child in intestacy.

Answer 23

When parents have failed to support their children, have abandoned their children, or whose parental rights have been terminated. States vary widely in this area.

Answer 24

Yes, the UPC denies all parents - marital and non marital - the right to inherit from or through the child if their parental rights could have been terminated.

Answer 25

it means that a descendant has died and left surviving descendants to "step-in" for and represent them in the distributional scheme.

Answer 26

(1) English aka strict per stirpes (2) modified "modern" per stirpes (per capita with representation) (3) 1990 UPC per capita at each generation (back in the pot method)

Answer 27

(Step 1) determine the number of shares by dividing the estate into as many equal parts as there are: (a) surviving children of the decedent, if any, and (b) deceased children who left surviving descendants to represent them. (Step 2) distribute one share to each living member of the highest generation (Step 3) for children who were not alive but whose bloodlines were entitled to a share because they were represented by descendants, determine the portion allocated to that bloodline in the same manner as in step two. (Step 4) repeat this generation by generation...

Answer 28

(Step one): find the first generation where there are living descendants. (Step two): at that generation, determine the # of shares by dividing the estate into as many equal shares are there are: (a) living descendants of the decedent, if any, and (b) deceased descendants in the same generation who are represented by their living descendants. (Step three): distribute one share to each living member in the highest generation (step four): the rest is like the rest for strict per stirpes

Answer 29

(step 1) Find the first generation where there are living descendants... determine the number of shares by dividing the estate into as many equal parts as there are: (a) living children of the decedent, if any, and (b) deceased children in the same generation with descendants then living. (step 2): distribute one share per capita to each living member of the first generation where there are living members (step 3): combine the remaining shares, if any, into a pot for sharing by lower generations. (step 4): move down to the next generation and repeat steps one to three until the entire estate is distributed.

Answer 30

the intestate estate then passes to ancestors and collateral relatives of the decedent.

Answer 31

One who descends from both the ancestors (parents or grandparents) of the decedent or from only one of the ancestors of the decedent.

Answer 32

States vary on their approaches. About 10 states require that the personal representative find even more remote heirs. However, a more common alternative is that the intestate estate escheats to the state, it being justified on the grounds that it is better for it to go to the state than "laughing heirs."

Answer 33

first parentela = decedent's lineal descendants = children, grandchildren, and great grandchildren. second parentela = headed by the decedent's parents and below them are their descendants, i.e., the decedent's brothers and sisters, then nieces and nephews, and grand nieces and nephews, and so on. third parentela = headed by the decedent's grandparents and below them are their descendants.

Answer 34

Gift = an absolute and unconditional transfer which needs not be repaid and does not diminish the donee's share of her inheritance from the estate. Loan = if not repaid during the decedent's life, is an asset of the decedent's estate Advancement = when one receives an advancement, they are not required to return it to the estate but it is treated as a prepayment of some or all of the recipient's inheritance. It reduces the amount the heir would have otherwise received.

Answer 35

all such transfers are treated as advancements unless the evidence establishes otherwise.

Answer 36

all lifetime transfers to heirs are presumed to be gifts. In order to overcome the presumption of a gift, the UPC requires a very specific kind of evidence to establish that the inter vivos transfer was an advancements. The evidence needed to establish a transfer as an advancement must be in writing (oral parol evidence is not permitted). If the writing is from the decedent it must have been drafted contemporaneously with the transfer and must specifically identify the transfer as an advancement or indicate in some clear manner that it was meant to reduce the amount to which the heir would otherwise be entitled. If the writing is from the recipient, it need not be contemporaneous but it must make a similar acknowledgement.

Answer 37

when transfer is passed by will substitutes and/or gifts. Will substitutes do not need to comply with the same formalities that apply to wills.

Answer 38

(1) more certainty (2) easier and less costly to transfer out-of-state realty (3) more privacy (4) some statutory protections and restrictions apply only to property passing through probate (5) depending on the non probate instrument used, transferees may not be liable to the decedent's creditors.

Answer 39

UPC section 6-102 states that nonprobate transferees are liable to the decedent’s creditors only (i) if the probate estate is not sufficient to pay all the claims; and (ii) if there is no exemption under state law.

Answer 40

1) claims of creditors are addressed and resolved during probate 2) there is an "inheritance defense" associated with requiring "superfund" property 3) the proceedings are controlled by a judge 4) in most cases, the PR is required to prepare an accounting and report of her activities.

Answer 41

is the property the subject of a will substitute? --> if yes, it is not probate property. If it is not the subject of a will substitute then it is probate property.

Answer 42

Trust = a trust is a legal relationship that separates legal ownership (the property is tilted in the name of “trustee”) from beneficial ownership (the present and future interests are held by the “beneficiaries”)

Answer 43

joint tenancies assume a right of survivorship and are typically used for both real property and financial interests. At the death of one of the joint tenants, all of the property goes to the survivor and is non probate property.

Answer 44

A joint tenancy can be destroyed (i) by any of the tenants conveying their interest to a third party, (ii) by creditors of one of the tenants obtaining a judgment and levying the interest, (iii) by a court granting partition, or (iv) if the joint tenancy was between spouses, by divorce. If the tenancy is defeated, the result is that the owners hold title as tenants in common.

Answer 45

An account that during life, belongs to the owner but another party can access it for the owner's benefit (acts as a fiduciary). At death, the convenience account is a probate asset and passed by will or intestacy.

Answer 46

An account with two names on the card. The account belongs to the owner and no one else has access but when the owner dies, the account goes to the other name on the card, the beneficiary (assuming they survive the owner).

Answer 47

Each person in a tenancy in common technically owns a fractional share of the account/property. At death, each person's share is probate property.

Answer 48

is reserved for married people with the property treated as being owned by the marriage. One tenant cannot unilaterally convey their interest in the property to a third party nor can courts order partition on the motion of only one tenant.

Answer 49

a governing instrument that transmits the proceeds on the death of the insured pursuant to the beneficiary designation form completed by the owner of the property. As long as the beneficiary is not the decedent's estate, the proceeds of a life insurance policy are NOT probated.

Answer 50

The individual who owns the accounts designates a beneficiary on a form provided by the investment company or retirement plan administrator. The money in the account then goes to the beneficiary and is not probated (unless the beneficiary is the individual's estate)

Answer 51

Much of the law associated with retirement plans in the workplace is preempted by federal law, the Employee Retirement Income Security Act (ERISA) of 1974. If the covered employee is married, ERISA restricts the employee’s selection of beneficiary, basically limiting the choice to the person’s spouse unless the spouse signs a fully informed waiver of that right.

Answer 52

This allows an owner to convey real property via deed. It has to be executed during life, is expressly effective only at death, and has zero effect on the owner's rights during the owner's life.

Answer 53

Nope, the TOD deed has no impact on what the individual does with the asset during life. If specified, anything inconsistent with the TOD deed invalidates the TOD (like selling the house). TOD deeds are revocable until moment of death, you can also file a revocation of the deed. It is also revoked if the beneficiary predeceases the individual if a spouse is the beneficiary and they get divorced.

Answer 54

Common rule followed in most states is that you can't change the beneficiary in a non probate instrument through your will. In Lincoln Life and Annuity Co. of NY v. Caswell, the court expresses the majority view that unless the will is one of the prescribed methods to amend the form, the designation form controls. In the case, the court held that where a life insurance policy sets forth a procedure for changing beneficiaries and does not authorize making such a change via will, a general testamentary statement in the insured's will does not override a prior designation of the policy beneficiary that was made in the manner provided by the policy.

Answer 55

The answer depends on two factors: (1) did the parties enter into a property settlement disavowing rights to the other's property? (2) has the state adopted a statute that revoked all revocable governing instruments upon divorce

Answer 56

In WA, you can change the beneficiary designation for a Nonprobate instrument via will as long as the will is made AFTER and you make a specific reference to that Nonprobate instrument. However, not all Nonprobate assets are subject to the super wills statute.

Answer 57

1) real property passing under a joint tenancy with right of survivorship. 2) deed or conveyance possession upon death 3) transfer on death deed 4) community property agreement 5) bonds, annuities, etc. 6) IRA's and ERISA retirement plans 7) life insurance policies

Answer 58

1) joint bank accounts with right of survivorship 2) payable on death or trust bank accounts 3) transfer on death securities or security accounts 4) revocable trusts 5) notes or contracts affected by death.

Answer 59

For an individual to make a will they must be (1) be 18 years old or older, and (2) be of sound mind.

Answer 60

Most states allow it.

Answer 61

Testator must: (1) understand they are making a will (2) know the extent and character of her property (3) know and understand the proposed disposition of her property; and (4) know the natural objects of her bounty, who are generally recognized as the testator's close relatives.

Answer 62

Means the decedent intended the actual document the testator signed to be a will and to become operative on their death.

Answer 63

A strong but rebuttable presumption of testamentary intent exists if the will contains language to that effect, such as “this is my last will and testament.” If that language is absent, a court may infer it from other words in the document itself.

Answer 64

The will must: (1) be in writing (2) be signed by the testator (3) be attested to by 2 or 3 witnesses (4) some states also require "publication" which means that the testator signify to the attesting witnesses that the document is the testator's will.

Answer 65

requires generally (except as provided in other sections) that a will must be: (1) in writing (2) signed by testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (3) either (a) signed by at least 2 individuals, each of whom signed within a reasonable time after the individual witnesses either the signing of the will or the testator's acknowledgement of that signature or acknowledgement of the will; or (b) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgements.

Answer 66

Yes, under UPC 2-502, intent that a doc constitute the testator's will can be established by extrinsic evidence, including for holographic wills, portions of the document that are not in the testator's handwriting.

Answer 67

Few states allow it and if they do it generally must be executed while in fear of imminent death often on the battlefield.

Answer 68

Broadly...includes a medium that allows the markings to be detected. Restatement (third) of property: wills and other donative transfers section 3.1.

Answer 69

the testator's act of writing their name, with the intent to adopt the document as their own, constitutes a valid signature.

Answer 70

UPC 2-502(a)(2) does not require the testator's signature to be at the end of the will.

Answer 71

Comments to the UPC 2-502 and restatement 3.1 comment j note that the testator may sign their name or may make a cross or a mark like an X or use a term of relationship like "dad." These suffice if done with the intent of adopting the document as the testator's will.

Answer 72

UPC allows someone else to sign at the testator's direction. UPC 2-502(a)(2) provides certain safeguards against fraud by requiring that the other person sign in the testator's conscious presence and by the testator's direction.

Answer 73

UPC 2-502(a)(3)(A) requires 2 or 3 people other than the testator...older statutes required 3 but the UPC and almost every state now only require 2.

Answer 74

UPC 2-505 provides that an individual generally competent to be a witness may act as a witness to a will. Additionally, the signing of a will by an interested witnesses does not invalidate the will or any provision of it.

Answer 75

They either must observe the testator sign the will or the testator must acknowledge to them that it is either the testator's signature or will.

Answer 76

Under the UPC the witness must be in the testator's presence when the testator signs or acknowledges the will, but the testator need not be in the witness's presence when the witness signs it.

Answer 77

UPC 2-502(a)(3) requires that the witnesses sign within a reasonable time after witnessing either the signing of the will or the testator's acknowledgement. In re estate of Peters, the court said that the signatory function serves an evidentiary purpose, so the signatures of the witnesses would lose probative worth and tend to fail on this purpose if the witnesses were permitted to sign at a time remote from their required observations as witnesses. It is sensible to infer that both acts of witnessing and signing should occur either contemporaneously with or in close succession to one another.

Answer 78

(1) ritual function (impresses the testator with the significance and finality of her statements) (2) evidentiary function (increases the reliability of wills as proof of the testator's wishes) (3) protective function (safeguards the testator) (4) channeling function (the standardization of form and regularity in processing simplifies the administration and assures testators)

Answer 79

This is not normally required but it is wise and helps establish the order of wills if there is more than one.

Answer 80

A will amendment that still needs to meet the same requirements that you do for a will.

Answer 81

RCW section 11.12.020 (and now, 11.12.440) (1) Except for electronic wills Every will shall be in writing (a) Signed by the testator or by some other person under the testator’s direction in the testator’s presence or electronic presence, and (b) Shall be attested by two or more competent witnesses, by subscribing their names to the will (i) Or by signing an affidavit that complies with RCW 11.20.020(2), (c) While in the presence or electronic presence of the testator and the testator’s direction or request… Note: signatures on multiple documents via “electronic presence” = a single will

Answer 82

No, however, RCW 11.12.020 provides that if a last will and testament is executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, that will shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of the state. Therefore, someone could execute a holographic will in a state where it is allowed and it would be honored in WA.

Answer 83

the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.

Answer 84

"sign" means, with present intent to authenticate or adopt a record, to affix or logically associate with the record an electronic symbol, an electronic sound, or process.

Answer 85

by the act of subscribing their names to the will - or by the act of signing an affidavit, the witness is attesting to the fact that they have personal knowledge of the requisite facts.

Answer 86

1) line of sight test 2) conscious presence test 3) electronic presence (RCW 11.02.005(5))

Answer 87

the testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look

Answer 88

the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is signing.

Answer 89

"two + individuals in different locations communicating in real time....as if the....physically present in the same location" via technological means.

Answer 90

by the act of "subscribing their names to the will" - or by the act of "signing an affidavit", the "witness" is "attesting" to the fact that they have personal knowledge of the requisite facts.

Answer 91

of course, execution of a will may also be proved if witnesses testify they signed the document in the presence of the testator and testify to facts showing attestation as a matter of law.

Answer 92

RCW 11.20.020 provides that the court may immediately hear the proofs and either probate or reject such wills as the testimony may justify...All testimony in support of the will shall be reduced to writing, signed by the witnesses, and certified by the judge of the court.

Answer 93

In accordance with RCW 9A.72.085, each of us declares under penalty of perjury under the laws of the State of Washington that the following is true and correct: I am of legal age and competent to be a witness to a will The testator appears to me to be of legal age and sound mind and not acting under any duress, menace, fraud, or undue influence. On the date and at the place shown immediately above, in my presence and in the presence of the other witnesses, the testator declared this document to be his/her will, requested me and the other witnesses to act as witnesses to his/her signing of the will, and then signed the will. Immediately thereafter and at the testator's request, I and the other witnesses signed the will as witnesses in the presence of the testator and each other, on the date and at the place shown immediately below the testator's signature.

Answer 94

3 witnesses + a notary.

Answer 95

If a will or a material portion of the will is written in the testator's handwriting, then the will may be validated without any witnesses as a holographic will.

Answer 96

UPC section 2-502(b) provides that such an unwitnessed or unattested will is still valid if the signature and the material portions of the document are in the testator’s handwriting. The UPC does not require that the will be dated.

Answer 97

require that the will be entirely written, dated, and signed by the hand of the testator in order to be a valid holographic will.

Answer 98

require the signature and material provisions to be in the testator's handwriting in order to be valid.

Answer 99

UPC 2-502 is an example of these...only require that the signature and the material portions of the document to be in the handwriting of the testator to be a valid holographic will. Material portions = property + beneficiaries whereas with 2nd gen material portions = property, beneficiaries, and words of gift.

Answer 100

It is in how they define "material portions" 2nd gen material portions = property, beneficiaries, and words of gift. 3rd gen material portions = just property + beneficiaries.

Answer 101

extrinsic evidence for holographic wills includes portions of the document that are not in the testator's handwriting

Answer 102

Although a document or writing added upon a document was not executed in compliance with section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) The decedent’s will, (2) A partial or complete revocation of the will, (3) An addition to or an alteration of the will, or (4) A partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the will.

Answer 103

No under UPC 2-503

Answer 104

this provision gives courts statutory authority to excuse a formality if a defect in execution was harmless in relation to the purpose of the statutory formalities. Such defects would not likely include the writing requirement or signature requirement, but might well include a failure to obtain a second witness or a situation where spouses each signed the others will as happened in the Snide case.

Answer 105

UPC §2-506. Choice of Law as to Execution. A written will is valid if executed in compliance with Section 2-502 or 2-503 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

Answer 106

For a will executed electronically, the place of execution is not obvious. The E-Wills Act states that the law of the place in which the testator is physically located when the will is signed or where the testator is domiciled or resides when the will is signed or the testator dies, will be considered the place of execution for the purposes of determining whether the will complies with the E-Wills Act.

Answer 107

UPC section 2-515. Deposit of Will with Court in Testator’s Lifetime. A will may be deposited by the testator or the testator’s agent with any court for safekeeping under the rules of the court. The will must be sealed and kept confidential. During the testator’s lifetime, a deposited will must be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will…

Answer 108

After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.

Answer 109

An interested witness is a witness that is a beneficiary. Some statutes say that if a witness is interested/a beneficiary, then that witness is invalid. One type of purging statute just invalidates the bequest to the interested witness themselves. The other type, used in WA, says that any extra benefit that the person gets from being a witness to a will gets thrown out (so if they were already getting something in a prior will, they would still get that and just wouldn't get more if the new will that they were a witness to gives them more). UPC has no consequences for having an interested witness.

Answer 110

Possibly by an affidavit from other beneficiaries that there was no undue influence with the interested witness.

Answer 111

testamentary intent...operative testamentary intent meaning the testator intended for the document to be a will opposed to a letter or note.

Answer 112

- requires a legislative enactment (in Snide, court said harmless error couldn't be applied because harmless error standard has to come from the legislature...court can't unilaterally apply harmless error standard) - requires a writing - likely requires a signature or some clear acknowledgment that the testator regards the document as a will. - extrinsic evidence will be both admissible and important

Answer 113

Common ethical issues in estate planning include whether it is ethical for a lawyer: To retain the will for the client To name herself as the executor To name herself as a beneficiary in a client’s will (if they are not a family member) To include a clause limiting her liability in a will. To represent a husband and wife or a testator and beneficiary.

Answer 114

(1) integration of wills (2) incorporation by reference (3) acts of independent significance (4) republication by codicil

Answer 115

Words of the document are best indication of donor intent So start here - likely the end of our analysis if the words are clear, unambiguous and address the situation Perhaps even if not! If there is an ambiguity or if issues are not addressed in the document, we resort to: Rules of construction (presumptive intent) Extrinsic evidence (in some cases) to discern T’s actual intent

Answer 116

The document being probated must consist of the pages that were present at the execution ceremony that the testator intended to constitute the will.

Answer 117

a will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. the execution or revocation of another individual's will is such an event.

Answer 118

A valid will may incorporate by reference any writing in existence when the will was executed if the will itself manifests the testator's intent to incorporate the writing and describes the writing sufficiently to permit its identification. However, in the case of any inconsistency between the writing and the will, the will controls. Oh, and we better find that document described in the will, conforming to the description.

Answer 119

“Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money [unless will says the memo overrides]. To be admissible ... the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.”

Answer 120

a prior will is treated as re-executed as of the date of its most recent codicil if (and only if) such treatment would be consistent with the testator's intent.

Answer 121

A provision in a will that transfers (“pours over”) some (or all) of the estate (usually the residue) into a trust Trust may be a previously funded and operating trust or a standby trust that is only minimally funded (or, in some states and UTC) not previously funded at all Trust becomes the dispositive document and since changes to a non-testamentary trust do not require the formalities that changes to a will do, it allows later changes more easily Lets entire estate plan be accomplished with one nonprobate document – the trust.

Answer 122

allows someone else to decide who gets your property after you die.

Answer 123

A donor creates the power and a donee holds the power and has the right to exercise it. The objects are the class of people to whom the power allows the donee to appoint the property. The takers in default will receive the property if the donee doesn’t exercise the power. A general power is one that the donee can exercise in favor of anyone, including herself (or her creditors, or her estate, or the creditors of her estate). A special (a/k/a limited a/k/a non-general) power is one that the done can only exercise in favor of a limited class of persons ◦ Most specifically, the donee canNOT exercise in favor of herself, or her creditors, or her estate, or the creditors of her estate.

Answer 124

the process of recognizing various pages as a single will.

Answer 125

a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Answer 126

this doctrine allows for the probate court to look to events or acts outside the four corners of the will to determine which property goes to which beneficiaries. Typical events include the birth, death, and adoption of a child as well as the act of acquiring or disposing of property.

Answer 127

In states that have adopted a statute like UPC 2-513, a testator may draft a memo after executing the will that leaves tangible personal property to certain people. This doctrine does not apply to intangible property or to real property. WA has a statute resembling UPC 2-513 and defines what tangible assets are.

Answer 128

whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or AFTER the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Answer 129

Wills may NOT be denied probate based on a mistake of fact or law inducing the execution of the will, unless the mistake goes to the underlying testamentary intent or unless fraud or undue influence caused the testator to execute the will.

Answer 130

the court may reform the terms of a governing instrument, even if unambiguous, to confirm the terms tot he transferor's intention if it is proven by clear and convincing evidence what the transferor's intention was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.

Answer 131

Matters because certain rules of construction, like ademption, apply only to specific devises, while other apply to all devises. Classification is also important In the doctrine of abatement.

Answer 132

a specific devise is a gift of a particular asset, specifically identified in the will.

Answer 133

A gift of money or value. If the estate does not contain cash when the testator dies, the beneficiary can receive property worth that amount or the personal representative can sell assets and distribute cash.

Answer 134

A gift of money or value payable from a specified source, but if that source is insufficient, then from other assets.

Answer 135

Everything else. Any property in the probate estate not distributed as specific, general, or demonstrative advice is considered the residue.

Answer 136

UPC 2-604 addresses this issue and provides that a failed specific or general devise “falls into” and is distributed with the residue. A residuary devise that fails is distributed ratably to the other residuary beneficiaries or, if none, via intestacy. By passing a failed residuary bequest to other residuary beneficiaries first, UPC 2-604(b) provides a “residue of the residue” rule.

Answer 137

When a beneficiary predeceases the testator

Answer 138

a bequest to an individual fails or "lapses" when that person dies before the testator. The bequest will go to an alternative beneficiary if the will names an alternate taker. If no alternate taker is named and if the anti lapse rules do not apply, the gift fails and passes pursuant to UPC 2-604 (failed devise rule)

Answer 139

(a) except as provided in Section 2-603, a devise, other than a residuary devise that fails for any reason becomes a part of the residue. (b) Except as provided in Section 2-603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.

Answer 140

UPC 2-603 assumes a preference that the descendants of a predeceased beneficiary who is a family member take a bequest rather than let the bequest lapse to others. If a beneficiary who is a close relative of the testator dies before the testator, UPC 2-603 creates a "substitute gift" to the beneficiary's descendants.

Answer 141

There are 4 elements that must be met in order for the antilapse rule of UPC 2-603 to apply: (1) The intended beneficiary must predecease the testator or be deemed to have predeceased the testator. (2) The intended beneficiary must leave living descendants (3) The intended beneficiary must be a family member, defined as the testator’s grandparents, a descendant of the grandparents, or the testator’s stepchild; the reach of the statute is very inclusive, covering almost all relatives who would receive property if the testator died intestate. (4) The will must neither provide for an alternative gift (to a “taker in default”) nor state specifically that the antilapse rules are not to apply, because such a statement of intent supersedes application of the default rules.

Answer 142

a gift made to a group of people identified as a group by the testator and typically with each member of the group bearing the same relationship to the testator (ex: my children).

Answer 143

If all the requirements are met, a substitute gift is created in favor of the surviving descendants of the intended beneficiary, with the amount each descendant receives determined by the rules of representation.

Answer 144

Under the common law, the remaining members of the class would divide the gift. (this is if anti lapse doesn't apply)

Answer 145

If a class gift is made to a group covered by the anti lapse statute, there are 2 possibilities: (1) if the gift is to "issue" or to a similar group that contains several generations, there is no substitute gift. (2) if the class gift is not a "multigenerational gift" then the anti lapse statute creates a substitute gift so that each surviving member of the class takes a share and the descendants of the deceased class member take the deceased class member's share. If the deceased class member has NO descendants, the anti lapse conditions are not satisfied and the remaining class members benefit from the deceased class member's share pursuant to the common law.

Answer 146

Then it doesn't apply...UPC has a different rule but we're ignoring it for this class.

Answer 147

Ademption by extinction and nonademption.... the question for the court in these cases is whether to ignore the bequest and let it "adeem" (fail) or to substitute other property and give that property to the beneficiary.

Answer 148

NOPE, just specific devises.

Answer 149

1) identity (traditional approach where a specific devise is adeemed if the property is not owned by the testator at death and there is no inquiry into the testator's intent. 2) Intent (a change in form not substance approach that tries to apply the testator's likely intent in certain situations. This approach recognizes that in certain limited situations, the property that was the subject of the gift has changed its form.

Answer 150

intent theory

Answer 151

if a specifically devised item is not in the estate, the beneficiary may nonetheless be entitled to the replacement of, or cash value, the original item, if the beneficiary can show that that is what the testator would have wanted.

Answer 152

a change in form, not substance.

Answer 153

Accessions - UPC 2-605

Answer 154

The statute provides for a substitute gift of the shares of stock that replaced the specifically identified shares.

Answer 155

To the extent that the additional stock shares owned by the shareholders are the result of "stock splits", or stock dividends, the statute gives the beneficiary the increased number of shares.

Answer 156

1) plain meaning rule: courts categorically barred extrinsic evidence to alter the plain meaning of the will unless the language was ambiguous. 2) ambiguity: courts permitted extrinsic evidence to resolve certain ambiguities in a will's wording. 3) no reformation rule: courts prohibited admission of extrinsic evidence to modify the words of the will to correct a mistake (e.g. Flannery v. McNamara).

Answer 157

If there is ambiguity as to the testator’s intent, extrinsic facts are admissible to explain the language in the will…Washington cases provide that testimony of the drafter, including as to the testator’s intent, is one piece of evidence admissible to explain the language. Extrinsic evidence of surrounding facts and circumstances may be admitted to explain the language of the will [i.e. what T meant by the words used] when uncertainty arises as to the testator’s true intention. But [apart from testimony of the drafter] extrinsic evidence may not be considered for the purpose of proving [dispositive] intention as an independent fact, or of importing into the will an intention not expressed therein.

Answer 158

The terms of a will or trust, even if ambiguous, may be reformed by judicial proceedings under this chapter to conform the terms to the intention of the testator or truster if it is proved by clear, cogent, and convincing evidence that both the intent of the testator or truster and the terms of the will or trust were affected by a mistake of fact or law, whether in expression or inducement. This does not limit the ability to reform the will or trust using binding nonjudicial procedures of RCW 11.96A.220.

Answer 159

they need to survive

Answer 160

Have to survive 120 hours.

Answer 161

UPC = a family member (within the first three parentela) + stepchild WA= lineal descendant of T's grandparents + not stepchild.

Answer 162

a doctrine that helps the probate court decide which bequests have to be reduced (or eliminated altogether) and in what order to satisfy debts/expenses.

Answer 163

Yes, in the will by including a provision that explicitly states the testator's preference.

Answer 164

(a) except as provided in subsection (b), shares of distributees abate, without any preference or priority between real and personal property, in the following order: (i) property NOT disposed of by the will (any intestacy shares); (ii) residuary devises; (iii) general devises [normally monetary bequests]; [Eason's slides say demonstrative devises are next] (iv) specific devises. For the purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property has been made in accordance with the terms of the will.

Answer 165

If the will expresses an order of abatement, or if the testamentary plan or ht express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

Answer 166

Historically, if a testator failed to specify from what source taxes were to be paid, the default rule was that they would be paid from the residuary estate. However, many states have reversed that rule by statute and provide that in the absence of a clear direction to pay taxes out of the residue, each bequest shares the tax burden pro rata.

Answer 167

Specifies that apportionment is the default rule where the testator has not declared specifically that estate taxes are to be paid in a different manner. In the absence of clear direction, the balance of past due taxes are shared by beneficiaries equally (pro rata)

Answer 168

If two decedents are co-owners of property and it is not established by clear and convincing evidence that one survived the other by 120 hours, UPC 2-702 provides that one-half of the property passes as if one had survived by 120 hours and one half as if the other survived by 120 hours.

Answer 169

If an intended beneficiary of an will or an heir of an intestate estate renounces or disclaims all or part of their inheritance to which they are entitled, if done properly, the interest to which the disclaimant would otherwise have been entitled passes as if the decedent died before the testator. The disclaimant cannot specify who will take the property after they disclaim it.

Answer 170

Up until the moment the testator dies

Answer 171

In order to have a valid revocation, it must be established that the testator: (1) had the capacity to revoke; (2) had the intent to revoke; and (3) revoked in a legally effective manner.

Answer 172

(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or (2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or if another individual performed the act in the testator's conscious presence and by the testator's direction.

Answer 173

burning, tearing, canceling, obliterating, or destroying the will or any part of it... A burning, tearing or canceling is a revocatory act on the will whether or not the burn, tear, or cancellation touched any of the words on the will.

Answer 174

If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

Answer 175

If the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.

Answer 176

If the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

Answer 177

express = testator may include an express revocation clause in the new will implied = happens when subsequent will is inconsistent with the first, either in whole or in part.

Answer 178

Under the common law, cash bequests under codicils were presumed to be cumulative rather than substitutional. The UPC doesn't establish a presumption one way or another, so a court must interpret the testator's intent and courts may consider extrinsic evidence. UPC 2-507.

Answer 179

Nope! Whether the will is effectively revoked depends on whether the testator undertook the act with the intent to revoke it. Accidental acts should not be given revocatory effect since they are not done with the proper intent.

Answer 180

If the will is found with revocatory marks, the law creates a rebuttable presumption that the testator intended to revoke the will. The presumption can be rebutted by evidence that establishes that the testator did not mutilate the will with the intent to revoke it.

Answer 181

If the will is missing and was last in the possession of the testator, the common law creates a presumption that the testator destroyed the will with the intent to revoke it. Extrinsic evidence can be used to overcome that presumption.

Answer 182

- decedent was young and healthy and fully competent so court said it would have been unlikely that he would have lost the original will accidentally - there was a short period of time between the date the will was executed and the decedent's death so there was little time for the decedent to lose the will or give it to someone who suppressed or destroyed it against the decedent’s wishes.

Answer 183

States have developed statutes that address changed circumstances. If the person dies with a will or will substitute that gives property to a former spouse or fails to give property to a new spouse, the law may provide default rules that revise the instrument based on the new circumstances. The testator can override these rules, but they assume the testator did not anticipate these changes.

Answer 184

the law revokes gifts to someone who killed the testator, not only because the testator would likely not want the killer to inherit from the testator but also because we want to deter such behavior.

Answer 185

Most states and the UPC no longer revoke a testator’s pre-existing will upon a subsequent marriage. Rather, UPC sections 2-201 and 2-301 provide the spouse with either the right to elect a share of the marital property portion of the decedent’s augmented estate or an amount equal to what the surviving spouse would have received had the decedent died intestate.

Answer 186

In most states, statutes revoke bequests to a former spouse and any nomination of the former spouse as a fiduciary. Some statutes, including the UPC, go further, and also prevent family members of the former spouse from receiving property. The former spouse and their family members are deemed to have disclaimed the property or have predeceased the decedent and are precluded from taking or serving as a fiduciary.

Answer 187

if you have a kid after execution of a will, the kid is presumed to be included.

Answer 188

divorce or annulment of marriage: (1) revokes any revocable: disposition or appointment of property made by a divorced individual to the former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse...also revokes powers of appointment to the former spouse or relative of former spouse, and appointments to the former spouse or relative of former spouse to serve as a fiduciary, PR, agent, or guardian...

Answer 189

Yes, this includes wills and will substitutes. Additionally, the statute converts interests in jointly held property with rights of survivorship to tenancies in common.

Answer 190

Nope! ERISA preempts state law.

Answer 191

Although the UPC prevents the killer from taking, the fact that it treats the killer has having disclaimed their interest means that the killer’s descendants may take the property, either under the document or the antilapse rules. On the other hand, some states bar the killer’s descendants from inheriting also.

Answer 192

when it is felonious and intentional...other statutes may use different language, however, they typically only apply to killings that could be prosecuted as felonies and that involve the element of intent.

Answer 193

The revocation statute is a civil law, so application of the statute does not require a criminal conviction, and the evidentiary standard is lower than that required under criminal law. Under the UPC, if the killer is convicted of a felonious and intentional killing in a criminal proceeding, that conviction is sufficient to trigger application of UPC 2-803. Even if the killer is not convicted, or if the conviction is not final, an interested person can petition the probate court to conduct a separate proceeding to determine whether under the civil standard - a preponderance of the evidence standard - the killer would be found criminally accountable for the killing. Such a finding by the probate court is sufficient to trigger the forfeiture provisions of UPC 2-803.

Answer 194

A will that is validly revoked cannot be probated. If the testator does not have an earlier will, the testator is treated as having died intestate. If the testator had executed an earlier will or wills, a prior will may be probated if one of the following doctrines applies: - revival - dependent relative renovation or conditional revocation - harmless error

Answer 195

a statutory doctrine that applies when a testator creates a first will, properly revokes it, creates a second will, and then properly revokes the second will.

Answer 196

applies when the testator creates a valid will, revokes it in whole or in part, and then attempts to execute a second will that is later found to be invalid

Answer 197

Previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.

Answer 198

the revocation of the later will is effective, and the earlier will is revived and becomes the operative document.

Answer 199

Revival does not apply when the testator revoked one will as part of a plan to leave property pursuant to a new will, but the new will turns out to be invalid for one reason or another. In situations like this, courts may instead rely on (i) the common law doctrine of ‘dependent relative revocation’ to determine whether the intent of the testator would be better implemented if the revocation is given effect, or (ii) in an increasing number of states, the statutory rule of harness error found in UPC 2-503.

Answer 200

It is a lapse situation.

Answer 201

DRR is a common law doctrine It involves a facts and circumstances analysis on a case-by-case basis. The kind of evidence that courts use to determine the testator’s intent as to conditional revocation include: (i) the nexus between the revocation and the old will (or part of it) and the attempted execution of a new will (or part of it) in terms of how close in time the two events were, and (ii) the degree of similarity between the terms of the two wills (or provisions). The closer in time and the more similar the more likely it is that a court will find that it is appropriate to apply DRR.

Answer 202

the previous will remain revoked, unless it is revived. The previous will is revived if it is evidence from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.

Answer 203

a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.

Answer 204

the previous will remain revoked in whole or in part, unless it or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.

Answer 205

Presumption = no revival of will #1 however extrinsic evidence is allowed

Answer 206

presumption = revival of will #1 provisions (extrinsic evidence allowed)

Answer 207

presumption = no revival... no extrinsic evidence is allowed...rebuttal evidence is limited to the 4 corners of will #3.

Answer 208

(a) A partial or complete revocation of a will is presumptively ineffective if the testator made the revocation: - In connection with an attempt to achieve a dispositive objective that fails under applicable law, or - Because of a false assumption of law, or because of a false belief about an objective fact, that is either recited in the revoking instrument or established by clear and convincing evidence… (b) the presumption established in subsection (a) is rebutted if allowing the revocation to remain in effect would be consistent with the testator's probably intention.

Answer 209

Since T's first choice cannot be allowed because the new will fails, the court has to decide whether the testator would have preferred: (1) the revocation to be effective and die intestate? (2) to treat the revocation as ineffective and return to the mistakenly revoked document

Answer 210

In revival, the court is giving effect to a will (will #1) that the testator intended to be valid. Under DRR, the court is not giving effect to the will that T wanted (will #2) because the will is invalid but instead the court is giving effect to the next best thing.

Answer 211

language that revokes a prior will

Answer 212

1) Improper execution (affects entire will) 2) Lack of testamentary intent (affects entire will) 3) Lack of testamentary capacity (affects entire will) 4) Insane delusion (affects all or only part of will) 5) Undue influence (may affect all or only part of the will) 6) Mistake 7) Fraud

Answer 213

the burden of establishing prima facie proof of death, value, heirship, and that there is no will.

Answer 214

proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue.

Answer 215

lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.

Answer 216

parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.

Answer 217

(1) the testator understand the nature of her act; (2) she knows the extent of her property; (3) she understands the proposed testamentary disposition (4) she knows the natural objects of her bounty; and (5) the will represents her wishes.

Answer 218

lawyer may consider the client's overall circumstances and abilities, including the client's ability to express the reasons leading to a decision, the ability to understand the consequences of a decision, the substantive appropriateness of a decision, and the extent to which a decision is consistent with the client's values, long term goals, and commitments

Answer 219

Was T able to know or hold in her mind enough information about: 1) the Property she owns and wishes to give away 2) who the natural Objects of her bounty are; 3) the fact that she engaged in a Plan to disclose of her property on her death; and 4) the Interrelationship of the previous three? P - property O - objects P - plan I - interrelationship

Answer 220

an insane delusion is a belief that is so against the evidence and reason that it must be the product of derangement. A belief resulting from a process of reasoning from existing facts is not an insane delusion, even though the reasoning is imperfect or the conclusion illogical. Mere eccentricity does not constitute an insane delusion.

Answer 221

Mr. Watlack was agitated and angry when he signed his will because he falsely believed Ms. Freeman had stolen money from him even though he knew the proceeds check was in the possession of his attorney. The attorney had informed Mr. Watlack that Ms. Freeman had delivered the proceeds check to his office yet Mr. Watlack continued to believe she sole the money... Mr. Watlack's continued adherence to this false belief despite all the evidence to the contrary which was presented to him constituted an insane delusion.

Answer 222

(1) lack of general mental capacity (which will invalidate the entire will) or (2) the existence of an insane delusion (which invalidates only the bequests related to that particular beneficiary)

Answer 223

The insane delusions did not materially affect or influence his testamentary disposition. The decedent had delusions regarding listening devices in his home and car and assassination plots against himself and his dog. However, the decedent also wasn't close to petitioners, had infrequent contact with them, indicated to friends that he believed his father was irresponsible with money, disliked his sister's husband, and his relationship with his brother was distant.

Answer 224

(1) existence and exertion of an influence; (2) the effective operation of that influence so as to subvert or overpower the testator's mind at the time of the execution of the will; and (3) the execution of a will which the maker would not have executed but for such influence.

Answer 225

if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that the donor would not otherwise have made.

Answer 226

if someone threatens to or actually does something that coerces the testator into making the bequest. Such an act must be wrongful.

Answer 227

An action for tortious interference with expectancy of inheritance or gift provides a plaintiff with the opportunity to recover for the loss of this expectancy if the defendant’s tortious act deprives the plaintiff of an expected inheritance, benefit under a will, at-death benefit, or inter vivos gift.” Not all states recognize this claim and some require the interference to happen before the decedent’s death.

Answer 228

Many lawyers find it useful to include a penalty clause in the will. This kind of provision will cause a beneficiary to forfeit a bequest of the beneficiary brings a challenge to the will.

Answer 229

Many state courts construe these clauses narrowly, since they have the effect of "closing the courthouse door" to potential beneficiaries. UPC 2-517 says that a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting the proceedings (most contestants are able to establish probable cause).

Answer 230

Mediation = process through which an impartial third party facilitates voluntary decision making by the parties themselves. Arbitration = involves a third party, and the role of the third party is to make a decision that binds the parties.

Answer 231

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate…, may be established only by (i) provisions of a will stating material provisions of the contract; (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Answer 232

if the wrongdoer exerted such influence over the donor that: - overcame the donor's free will & - caused the donor to make a donative transfer that the donor would not otherwise have made.

Answer 233

(1) If the contestant shows sufficient suspicious facts as to raise a presumption of undue influence or fraud, the burden shifts to the proponent of the will to prove validity. - Contestant breaks the evidentiary “tie” (2) The proponent of the will is then charged with rebutting the presumption with “evidence sufficient at least to balance the scales and restore the equilibrium of evidence touching the validity of the will. - Tie goes to the proponent? (3) At this point, the contestant loses unless can produce “direct or positive circumstantial evidence”

Answer 234

(1) The donor was susceptible to undue influence (2) The alleged wrongdoer had an opportunity to exert undue influence, (3) The alleged wrongdoer had a disposition to exert undue influence, and (4) There was a result appearing to be the effect of the undue influence.

Answer 235

Confidential relationship + suspicious circumstances = presumption of undue influence (burden shift)

Answer 236

- fiduciary - reliant - dominant-subservient

Answer 237

- Secrecy of haste - Procuring new attorney; radical departure from established plans - Reasonable person would regard it as unnatural, unjust or unfair - Isolation / donor’s attitude toward others changed by reason of his relationship with wrongdoer - Weak-mindedness

Answer 238

When an agent claims that the principal made an inter vivos gift to him or her, the courts do not look to a “presumption of testamentary capacity,” which refers to the mental capacity to make a valid will. Instead, the common law of gifts applies. To prove the validity of an inter vivos gift, the agent must first prove by clear, cogent and convincing evidence that the transaction was indeed a gift and when the parties were in a confidential relationship, the agent must also prove by the same standard that he or she did not unduly influence the principal.

Answer 239

It is a long statute with lots of provisions It covers anything that touches trusts and estates It is a procedural statute that tells you have to walk through some of these disagreements Once an action is brought there is a right to mediation but it isn’t binding Parties can request arbitration which can happen by court order or by mutual agreement. TEDRA provides that the parties can enter into a binding nonjudicial agreement that doesn’t need to be submitted to a court for approval. There are some exceptions to that though when a special representative is needed.

Answer 240

Homestead: right to occupy family home for lifetime (UPC section 2-402 = lump sum = $32,000). Personal property set-aside: right to tangible personal property up to a certain value (UPC 2-403 = $15,000). Family allowance = amount varies (UPC = $18,000 per year). Court can fix higher or lower amount (reasonable allowance) Dower and curtesy = life estate in one-third (dower) or entirely (curtesy) of land Social security = surviving spouse receives (at a minimum) the higher earner’s monthly benefits. Employee Pension Plans = ERISA gives employee’s spouse survivorship rights to pension plan.

Answer 241

property and pecuniary rights owned by a spouse before marriage and that acquired by him or afterwards by gift, bequest, devise, descent, or inheritance, with rents, issues and profits thereof.

Answer 242

they get all of the community property and the rest of the intestacy provisions dictate who gets the decedent's separate property.

Answer 243

the decedent spouse can dispose of their 1/2 of the community property, and all of their separate property as they please.

Answer 244

In WA, in order for a person to inherit as a surviving spouse under the laws of intestate succession, the survivor must have been legally married to the decedent at the time of their death. A partner is a meretricious (long-term committed, but unmarried) relationship does not qualify as a surviving spouse for probate purposes, such as for intestate succession and appointment as a PR.

Answer 245

Yes, and each spouse automatically owns 1/2 of the community property. Title is irrelevant.

Answer 246

Nope, no automatic sharing of earnings; whatever the individual earns is his or hers. Title is also very important. Elective share serves to protect against disinheritance.

Answer 247

(1) neither person shall devise or bequeath by will more than 1/2 of the community property. (2) ...give community property.... (3)...sell. convey, or encumber... (4) ....purchase or contract to purchase community real property... (5) ...create a security interest ...in, or sell, community household goods, furnishings, or appliances... (6) acquire, purchase, sell, convey, or encumber to assets, including real estate, or the good will of a business where both spouses...participate in its management....

Answer 248

1) community property form of ownership 2) elective share 3) protection against accidental disinheritance when the decedent executed a will before marriage or omitted a child.

Answer 249

States vary as to whether, and under what circumstances, the income from and appreciation of separate property becomes community property. If there is any uncertainty about the characterization of the property, it is presumed to be community property.

Answer 250

either equally or by a system of equitable distribution based on a variety of factors, such as the needs and contribution of each spouse.

Answer 251

they distribute property based on equitable distribution of all assets acquired during marriage. Results can be very similar to CP states.

Answer 252

a spouse who has title to any property titled solely in that spouse's name can determine where it will go by writing a will or using non probate transfers. However, an important safeguard is the right of the surviving spouse to take an "elective share" of the decedent's property.

Answer 253

defined as marital property acquired while domiciled in a separate property state that would have been characterized as community property if the married couple had been domiciled in a community property state. In effect, the property becomes community property to which the surviving spouse has equal rights. Upon death, one-half of any quasi-community property shall belong to the surviving spouse.

Answer 254

1/3 of the augmented estate. Augmented estate = included both probate and non probate assets.

Answer 255

- the statute now determines the elective share amount by considering assets held by both spouses. - it also tried to approximate marital property through a mechanical phased-in percentage for the elective share. The longer the marriage, the larger the percentage...the share is 3% after one year of marriage and increases over 15 years to 50%.

Answer 256

$75,000 (plus cost of living increases) to which the survivor is entitled.

Answer 257

(a) Subject to Section 2-208, the value of the augmented estate… consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute: (i) The decedent’s net probate estate [per UPC section 2-204] (ii) The decedent’s nonprobate transfers to others [per UPC section 2-205] (iii) The decedent’s nonprobate transfers to the surviving spouse [per UPC section 2-206]; and (iv) The surviving spouse’s property and nonprobate transfers to others [per UPC section 2-207].

Answer 258

(1) determine the augmented estate (2) identify the percentage of the augmented estate to which the spouse is entitled, based on the length of the marriage (UPC 2-203 vesting schedule) (3) multiply the augmented estate in step one by the percentage in step 2 to calculate the "marital property portion." (4) multiply the marital property portion by 50% to determine the elective share amount to which the surviving spouse is entitled. UPC 2-202. (5) assuming the election is made, the next issue is to determine the source of the share (See UPC 2-209) (6) make the election (UPC 2-211).

Answer 259

UPC 2-209 provides: to the extent the surviving spouse already owns or receives property as the result of the decedent’s death, regardless of whether it comes from probate or nonprobate sources, these amounts are the first to fund the elective share. Only if the survivor does not end up with ownership of property equal to the elective share amount, i.e., there is a deficiency, will others have their inheritances abated to satisfy the elective share in proportion to the value of their interests.

Answer 260

Contracts that depart from the default rules of intestacy, elective share, omitted spouse share, etc. Can waive the right to inherit from the other spouse.

Answer 261

If the surviving spouse proves that: (1) he or she did not execute the waiver voluntarily (2) the waiver was unconscionable when it was executed and, before execution of the waiter, he or she (a) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent; (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and (c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent. (3) an issue of unconsionability of a waiver is for decision by the court as a matter of law.

Answer 262

Unless it provides to the contrary, a waiver of “all rights,” or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him [or her] from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

Answer 263

Omitted spouse statutes usually presume that the decedent would have wanted to change a premarital will to cover the new spouse but just never got around to doing so. This presumption can typically be rebutted if one of the 3 events occurs: (1) the parties entered into a premarital or marital agreement to waive inheritance rights; (2) after the marriage, the decedent used other means, such as trusts or insurance policy benefits, to provide for the surviving spouse; or (3) the spouse was given something in the will even though the will was written prior to the marriage, and the will expressly states that it excludes any persons the testator might marry in the future.

Answer 264

an omitted spouse has the right to receive an intestate share of the probate estate, but only from that portion of the estate not devised to descendants of the testator.

Answer 265

The statute will not create a share for the spouse if the decedent executed the will in anticipation of marriage or provided for the spouse through non probate transfers of if the will expressed the testator's intent to disinherit any future spouses.

Answer 266

protect children born AFTER the execution of a parent's will, and some even protect children alive at the time of the will's execution under some circumstances.

Answer 267

(1) if T had NO living child at time of execution... the omitted child receives a share in the estate equal in value to that which the child would have received if T died intestate, UNLESS the will devised all or substantially all of the estate to another parent of the omitted child and that the other parent survives the testator and is entitled to take under the will. (2) if T had 1 or more children at time of execution, and the will devised property or an interest in property to one or more of the then-living children, the omitted child is entitled to share in the testator's estate as follows: (a) The portion of the estate in which the omitted child is entitled to share is limited to devises made to the testator’s then-living children under the will. (b) The omitted child is entitled to receive the share of the testator’s estate, as limited above, that the child would have received had the testator included all omitted children with the children to whom devises were made under the will and had given an equal share of the estate to each child. (c) To the extent feasible, the interest granted the omitted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will. (d) In the satisfaction of a share provided by this paragraph, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

Answer 268

(1) it appears from the will that the omission was intentional; or (2) the testator provided for the omitted child by transfer outside of the will and intent that the transfer be in lieu of a testamentary provision which is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

Answer 269

the child is entitled to share in the estate as if the child were an omitted child.

Answer 270

First, determine the share (amount) of the estate NOT left to: (1) D’s descendants, who (2) are not descendants of the SS, and who were (3) born before the current marriage. With respect to that portion, apply the rules of 2-102(1)-(4), I.e. , if only spouse survives, or if only spouse and common children survive = 100%

Answer 271

Nope...parents are totally free to disinherit a child, no matter how deserving that child may be.

Answer 272

A trust is a fiduciary relationship and involves a settlor (who creates the trust), a trustee (who manages the trust), and a beneficiary (who benefits from the trust).

Answer 273

Mandatory rules apply to all trusts and cannot be changed by the settlor. The mandatory rules are, however, quite limited. Must of trust law is default law; the settlor can establish the terms of the trust in a written document. Thus, trust law provides a great deal of deference to the settlor’s intent.

Answer 274

(1) A valid purpose (2) A competent settlor (3) A trustee (4) The intent to create a trust (5) Property; and (6) One or more beneficiaries

Answer 275

the person (or persons) who create a trust by transferring legal title to property to the trustee to hold for the benefit of the beneficiaries. Legal persons, such as corporations, can also create a trust.

Answer 276

The person who holds legal title to the property. Even though title is in the name of the trustee, the trustee manages the property for the benefit of the beneficiaries, not for the trustee’s own benefit. A trustee can be an individual or a corporation authorized to act as a trustee. A trust may have more than one trustee.

Answer 277

The law imposes strict fiduciary duties on trustees to protect the interests of the beneficiaries. These fiduciary responsibilities include the duty not to self-deal and duties connected with the management and investment of trust property.

Answer 278

A person authorized by the settlor to exercise one or more powers over the trust. A trust protector’s authority supersedes that of the trustee, to the extent of the specified powers. In most states, a trust protector is treated as a fiduciary with respect to the specified powers, but the law in some states remains unclear.

Answer 279

A person with beneficial or equitable title to the trust property. A trust may have many beneficiaries who hold beneficial interests in the trust at the same time or at different times. The interests may be present or future interests.

Answer 280

means a beneficiary who, on the date of the beneficiary's qualification is determined: (A) Is a distributee or permissible distributee of trust income or principal; (B) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) termination on that date without causing the trust to terminate; or (C) would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.

Answer 281

the property held and managed by the trustee...any property can be used to fund a trust; no minimum amount is necessary.

Answer 282

Trusts can be created during the settlor’s lifetime (inter vivos trusts) or upon the settlor’s death, through the settlor’s will (testamentary trusts). Regardless of when they are created, they still must satisfy the same requirements in order to qualify as a trust; the major differences between them are whether they come into existence during the settlor’s lifetime and whether they are subject to probate court oversight.

Answer 283

A trust can be either revocable, if the settlor retains the power to modify or amend the terms of the trust or revoke it, or irrevocable, if the settlor cannot modify, amend, or revoke the trust.

Answer 284

The default under the UTC is that all trusts created after its enactment are revocable unless the terms of the trust “expressly provide that the trust is irrevocable.” UTC 602(a). Under common law though, a trust is presumed to be irrevocable unless the settlor reserves the right to revoke the trust. (WA follows the common law approach that a trust is presumed irrevocable). Best practice as an attorney is to state clearly whether the trust is revocable or irrevocable.

Answer 285

This type of trust holds the settlor’s assets during the settlor’s life, distributes to the settlor whatever income or corpus the settlor needs or requests, and then at the settlor’s death distributes the remaining assets to beneficiaries named in the trust instrument.

Answer 286

Arise in several ways (1) all testamentary trusts are irrevocable (2) a settlor may create an inter vivos irrevocable trust; and (3) revocable living trusts become irrevocable when the settlor dies. Irrevocable trusts are often created for tax reasons and for asset protection.

Answer 287

When a trustee and the trust’s only beneficiary are the same person, the legal and equitable interests merge and the trust terminates. Merger will occur even though not all of the trust’s purposes have been accomplished. The doctrine of merger is properly applicable only if all beneficial interests, both life interests and remainders, are vested in the same person, whether in the settlor or someone else.

Answer 288

a reason the trustee holds and manages the property. If the purpose is accomplished and a valid purpose no longer exists, the trust terminates.

Answer 289

the trust or the offending term will be held invalid and unenforceable. However, if the trust has other purposes, the trust can continue for those other purposes...but if the only purpose is illegal, the trust will terminate.

Answer 290

if the trust term encourages beneficiaries to engage in criminal or tortious behaviors act term may be held invalid as against public policy. A term that restrains religious freedom by providing an incentive for a beneficiary to change religious faith may also be invalid. Provisions that interfere with family relationships, like encouraging divorce, or discouraging contact between siblings, likewise may be found to be against public policy.

Answer 291

The standard to make a gratuitous transfer: the settlor must not only have the understanding required for wills but also understand the effect that creating a trust has on the settlor’s future financial security and ability to support any dependents.

Answer 292

The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

Answer 293

the court may consider various forms of evidence in addition to written evidence, and can consider various forms of evidence in addition to written evidence, and can consider any admissible extrinsic evidence, such as documents or testimony of witnesses.

Answer 294

No, the court will appoint a trustee for the trust. However, each of the other requirements must be met before a trust will be created.

Answer 295

some evidence to convey title to a trustee such that it creates fiduciary duties.

Answer 296

Words like "hoping" a person do something with the property are known as pecuniary words and are not sufficient to create a trust. In In Re Estate of Bolinger, the decedent expressed his "confidence" that the devisee would use his estate for the children's best interests int he devisees' exclusive discretion. This was also an example of pecuniary words and words more like "my trustee shall do something" is more strong and imposes fiduciary obligations.

Answer 297

- Fiduciary management - Gives some control over how things are structured… can control when beneficiaries get the money - It can be a good incapacity planning device for a settlor in cases of early onset altzheimers. - Dodging probate

Answer 298

Marital trusts: for the benefit of the surviving spouse QTIP - a way to avoid estate tax Exemption Trust: holds assets exempt from estate taxes ILIT (irrevocable life insurance trust); Credit shelter or family trust Spendthrift & asset protection trusts: protects assets against the beneficiary’s creditors Dynasty (perpetual/generation-skipping) trusts: accumulates income for future generations until distribution is required under the rule against perpetuities. Custodial or minority trusts: for the benefit of individuals younger than the age of majority. Incentive trust: distributions determined by the amount of the beneficiary’s own earnings Special needs trusts: for the benefit of disabled individuals. Grantor trust: a tax concept

Answer 299

- duty of loyalty - duty of care - duty of obedience (do what the trust says and obey the law)

Answer 300

Nope...a mere expectancy is not a property right.

Answer 301

(i) the trust qualifies as a charitable trust (ii) the court is willing to find an honorary trust; or (iii) under the UTC, the trust is for the purpose or a trust for an animal.

Answer 302

the relief of poverty, the advancement of eduction or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficiary to the community.

Answer 303

For the care of graves and the care of animals...

Answer 304

To reduce the need for a court to create an honorary trust, the UTC now permits the creation of a “trust for a non charitable purpose” without an ascertainable beneficiary. UTC 409 provides that the trust cannot last longer than the state’s Rule Against Perpetuities. UTC 409(2) provides for enforcement of the trust by a person designated by the settlor or, if the trust document does not designate someone, then a person appointed by the court.

Answer 305

elements of a trust don't include a requirement of a writing, a signature by the settlor, or signatures by witnesses.

Answer 306

UTC 407. Evidence of Oral Trust: except as otherwise required by a statute other than this [Code], a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established by clear and convincing evidence.

Answer 307

since most US states have adopted the statute of frauds, in those states a trust of land must be stated in writing that is signed by either the settlor or trustee. However, an oral trust of real estate is not necessarily void and may be carried out voluntarily or unforced under the partial performance doctrine, or under some circumstances courts will impose a constructive trust.

Answer 308

Requirements for creating a trust Trustee’s duty to act in good faith and loyalty Power of the court to modify or terminate a trust Power of a court to take actions with respect to the trust that are necessary in the interests of justice Limitations on the settlor’s ability to exculpate the trustee, Trustee’s general obligation to keep beneficiaries informed about the trust and specific requirements about notice to (“qualified”) beneficiaries.

Answer 309

(1) A trust is created only if: (a) The trustor has capacity to create a trust; (b) The trustor indicates an intention to create the trust; (c) The trust has a definite (ascertainable) beneficiary or is: (i) A charitable trust; (ii) A trust for the care of an animal (RCW ch. 11.118); or (iii) A trust for a noncharitable purpose (RCW 11.98.015) (d) Property; i.e. the trustee has duties to perform; and (e) the same person is not the sole trustee and sole beneficiary.

Answer 310

governed by the same capacity standard as wills.

Answer 311

Yes, the higher capacity standard applicable to the transfer of property free of trust

Answer 312

(a) a trustee may resign: (i) upon at least 30 days notice to the qualified beneficiaries, the settlor, if living, and all co trustees, or (ii) with approval of the court. (b) in approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property. (c) any liability of a resigning trustee...for the acts or omissions...is not discharged or affected by the trustee's resignation.

Answer 313

(1) by substantially complying with the method of acceptance provided; or (2) if the terms of the trust do not provide an exclusive method, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.

Answer 314

they may decline by delivering a written declination to the trustor, the successor trustee, & to a qualified beneficiary.

Answer 315

(a) act to preserve the trust property if, within a reasonable time after acting, the person sends a written declination of the...; and (b) inspect or investigate the trust property to determine potential liability under environmental or other law or for any other purpose.

Answer 316

The trust corpus or res must be in existence or ascertainable when the trust is created. Except…? Important exception: a trust may remain unfunded during a settlor’s lifetime if the settlor has a pour-over will that devises assets to the trust. UPC 2-511 (UTATA).

Answer 317

if the sole trustee is also the sole beneficiary then that is a merger where they just own it all and there isn’t a trust cause they don’t owe duties to anyone. Merger doesn’t happen if there is another beneficiary that is ascertainable within the rule against perpetuities period (21 years).

Answer 318

In Clark v. Campbell, the beneficiaries were "his friends"...Court said "friends" was too broad/vague and it would be impossible to determine who the beneficiaries are so they were not ascertainable. A resulting trust was created so the testator's descendants instead got it.

Answer 319

Yes, to the extent that: - relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. - was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship with the settlor.

Answer 320

yes, as an abuse of a fiduciary or confidential relationship unless the trustee proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the settlor.

Answer 321

1) The requirements for creating a trust 2) The trustee’s duty to act in good faith and in the interests of the beneficiaries 3) The power of a court to take actions with respect to the trust that are necessary in the interests of justice 4) Limitations on the settlor’s ability to exculpate the trustee 5) The trustee’s general obligation to keep beneficiaries informed about the trust 6) And specific requirements about notice to beneficiaries.

Answer 322

A settlor creates a revocable trust during life, and the settlor retains control over the property, often serving as the trustee. The trust typically provides that a successor trustee can step in if the settlor becomes incapacitated. At death, the settlor’s power to revoke the trust ends, and the trust becomes irrevocable. The revocable trust will then serve as the dispositive document when the settlor dies, and the settlor’s assets will pass under the terms of the trust to the desired beneficiaries.

Answer 323

the trust does not exist.

Answer 324

Capacity: Under the UTC, the capacity to create a revocable trust is the same as that required to execute a will. UTC 601. (however, in states that have not enacted the UTC, the rule for inter vivos trusts which are subject to a higher standard may still apply to revocable trusts). Duty to beneficiaries: while the settlor is alive, the trustee owes fiduciary duties only to the settlor/beneficiary. UTC 603(a). Rules that apply to wills: in some states, certain rules that apply to wills also apply to revocable trusts, but not to other types of trusts.

Answer 325

yes...until death.

Answer 326

yes, it can.

Answer 327

Nope...this is because the power to revoke indicates a power to get the money back to fulfill obligations. However, it provides creditor protection for beneficiaries.

Answer 328

Yes to all of it

Answer 329

Direct the trustee to pay something to a beneficiary, without exercising discretion as to the amount or the timing. Mandatory provisions may affect present or future interests. A beneficiary can sue the trustee to enforce the provision, if necessary. The good faith or reasonableness of the trustee’s actions is not a defense.

Answer 330

Direct the trustee to exercise some judgment in deciding what and how much to distribute, when to distribute, or to whom to distribute. The trust instrument will usually provide some guidance for the trustee. Discretionary standards can be narrow or broad, specific or general, ascertainable or non ascertainable. The more discretion the terms of the trust give the trustee, and the less ascertainable the standard, the less likely the beneficiary will be successful in forcing the trustee to make a particular distribution.

Answer 331

The terms of a trust may direct a trustee to distribute income or principal among a number of named beneficiaries or to one or more of a class of beneficiaries. While the requirement to make distributions may be mandatory or discretionary, the fact that the trustee can “spray” or “sprinkle” the property pursuant to the terms of the trust among various beneficiaries makes the power as to whom to distribute discretionary.

Answer 332

Courts view this as an ascertainable standard. It goes beyond adequate food and housing. Courts typically look to the amount of property the settlor placed in the trust, the relationship between settlor and B, and the settlor’s intent as expressed in the doc. Unless there is a reason to find otherwise, the terms will usually be interpreted to imply the beneficiary’s accustomed standard of living.

Answer 333

a trust term that directs payments for "education" clearly covers tuition... it generally encompasses technical training as well as college or grad education, depending on other evidence of the settlor's intent in the doc. Ordinarily it also includes room and board, books, fees, and other costs. Absent clear statements in the trust to the contrary, related costs for education, such as for private primary school, study abroad programs, and music lessons or sports instruction, are less likely to be viewed as within the term “education."

Answer 334

considered a restrictive standard, one that means something most people would consider an emergency and not merely a personal emergency. Courts tend to defer to the trustee's determination of whether an emergency has occurred and will define emergency narrowly when deciding whether the trustee acted unreasonably in not making a distribution.

Answer 335

These are considered non ascertainable for tax and state law purposes, giving broad discretion to the trustee. Trustee must still act reasonably and in good faith but the court accords the trustee significant latitude in its exercise of discretion.

Answer 336

Semi secret trust: Desire to create trust appears on the face of the will Terms are undisclosed Extrinsic evidence not needed to prevent unjust enrichment Devise is unenforceable They don’t let use of extrinsic evidence Secret trust: Devise is absolute on the face of the will Extrinsic evidence necessary to prevent unjust enrichment Court will impose a constructive trust on promisor.

Answer 337

If affects the ability of a beneficiary to get a court to intervene.

Answer 338

absolute = broadest grant of discretion...it is still subject to judicial review for fiduciary duty obligations and the trustee must not act arbitrarily or capriciously, or abuse its discretion. Trustee must act in good faith and in the interest of the beneficiaries. plain ol discretion = less broad...court more willing to intervene...more of a moderate reasonableness standard HEMS discretion: beneficiary's health, education, maintenance or support...this standard guides the reasonableness analysis...oversight more strict where standard is implicated.

Answer 339

Try to effectuate settlor’s intent…if you’ve already done that though what do you do? Look at beneficiaries’ circumstances and see what they need This is part of duty of care and duty of prudence If you do those things and decide not to make a distribution and then subject to judicial scrutiny… a court will probably not give you a hard time.

Answer 340

Nope...courts will typically intervene only to prevent a misinterpretation/misapplication of the trust document or law, to prevent an "abuse of discretion."

Answer 341

The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or The profit the trustee made by reason of the breach.

Answer 342

1) ERISA qualified retirement plan assets - Protections for participants/spouses - not other beneficiaries - Subject to possible spousal/child sppt claims per QDRO - Bankruptcy: unlimited protection - also protects roth IRAs but only up to 1 million 2) Annuities - Protected up to $2,500/mo ($30,000 per year) 3) Life insurance - Protected for insured’s creditors, as well as beneficiary’s existing creditors - Planning implication? - Have proceeds of life insurance go to the trust? 4) Homestead, etc

Answer 343

to the extent a beneficiary's interest is NOT subject to a spendthrift provision, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or fro the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances. (creditors basically stands in the beneficiary's shoes).

Answer 344

if the (non-settlor) beneficiary has already received a distribution, or can demand a distribution from the trust, the creditor can reach that property.

Answer 345

(1) giving the trustee discretion to make or withhold distributions (2) subjecting the beneficiary's interest to a spendthrift clause.

Answer 346

only if it restrains both voluntary and involuntary transfer of a beneficiary's interest.

Answer 347

yes, by statute RCW 6.32.250

Answer 348

No, and except as otherwise provided in this article, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary.

Answer 349

a creditor cannot get a court to issue a writ of attachment or garnishment respecting present & future distributions, whether mandatory (unless overdue) or discretionary. Creditor has to wait until distribution and then have sheriff serve levy on beneficiary.

Answer 350

a spendthrift provision is unenforceable against: (1) a beneficiary's child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance. (child = an person whom an order or judgment for child support has been entered) (2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust; and (3) a claim of this State or the US to the extent a statute of this State or federal law so provides.

Answer 351

Self-settled trust means funding a trust for the benefit of yourself (possibly in an affect to protect assets) Third-party trust is a trust where a third party creates a trust for the benefit of another person.

Answer 352

Nope... however, certain creditors are preferred in the eyes of the law and may be able to get a court order compelling a distribution. If an individual is in arrears in paying child or spousal support, UTC 504(c) says a court can order the trustee to make a distribution from the trust to the spouse, former spouse, or children even if the trustee’s power is discretionary, if it can be shown that the trustee “has not complied with a standard of distribution or has abused a discretion.”

Answer 353

Only a couple of states have but generally the law has not looked upon tort creditors with the same favor as children and former spouses.

Answer 354

Whether there is a spendthrift provision or not, the assets of a revocable trust remain reachable by the settlor's creditors, both during lifetime and at death. UTC 505(a). If creditors could not reach assets in a revocable trust, these trusts would provide individuals with a too easy creditor-avoidance tool.

Answer 355

Yes, they may.

Answer 356

Irrevocable trusts that benefit the settlor while denying the settlor's creditors the right to reach the assets in those trusts. There are now states that authorize such trusts. Common requirements include: - shelter is not available for existing debts; only those liabilities that arise after the trust is established and funded are protected. - trust must be irrevocable - settlor may not be a mandatory beneficiary, only a discretionary beneficiary. - some assets of the trust and a trustee must be located in the state where the trust is established and administered.

Answer 357

Trustee must carry out the terms of the trust as the settlor directs in the trust instrument and based on the trustee's knowledge of the settlor's intent. The trustee must also comply with the law.

Answer 358

Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this [Code].

Answer 359

trustee's duty to administer the trust solely in the interests of the beneficiaries....this duty means that the trustee must not put the trustee's own interests above those of the beneficiaries. The duty of loyalty also restricts a trustee's ability to do self-dealing transactions.

Answer 360

Trustee must manage the trust in a way that keeps the interests of all current beneficiaries and future beneficiaries in mind before making investment decisions or making distributions to any one beneficiary. This duty is however not a duty to treat all beneficiaries in the same way.

Answer 361

this duty is to manage trust property and to administer the trust with reasonable care, skill, and caution. This duty includes the duties to gather and protect the property, to keep proper records, to keep the property separate from the trustee’s own property, and to invest prudently.

Answer 362

not under UTC 810... they must keep trust property separate from their own. They also must keep adequate records of the administration of the trust.

Answer 363

Yes, a trustee must manage the trust’s assets in a way that protects the value of the assets over time. For most trusts, the trustee will invest the assets with two goals: to produce income for the income beneficiaries and to increase the value of the trust property for the remainder beneficiaries.

Answer 364

UPIA 9 sets out the rules a trustee must follow when delegating authority to act. A trustee cannot just turn things over to any investment advisor, but must exercise reasonable care, skill, and caution in selecting an agent, establishing the scope of the delegation, and periodically monitoring the work done on behalf of the trust. Trustee is not liable for breaches of the person who that person is delegated to as long as due diligence was done in selecting them and watching over them.

Answer 365

(a) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust. (b) To remedy a breach of trust that has occurred or may occur, the court may: - Compel the trustee to perform the trustee’s duties; - Enjoin the trustee from committing a breach of trust; - Compel the trustee to redress a breach of trust by paying money, restoring property, or other means; - Order a trustee to account; Appoint a special fiduciary to take possession of the trust property and administer the trust; - Suspend the trustee - Remove the trustee as provided in section 706; - Reduce or deny compensation to the trustee; - Subject to section 1012, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or - Order any other appropriate relief.

Answer 366

duty of good faith, duty to act in the best interests of the beneficiaries, and the duty to administer the trust in accordance with eh trust terms and laws.

Answer 367

1) Duty of loyalty - Avoid conflicts - Self dealing - usurpation could also be considered a conflict of interest transaction as well. 2) Duty of care - Duty to pay attention and act reasonably

Answer 368

No to all.... If a trustee engages in self dealing or a direct conflict of interest then it is automatically voidable by the beneficiary so the beneficiary can set the transaction aside and if harm was done then there is liability on the trustee to restore the trust and the beneficiaries to the position they would have been in without the self dealing transaction.

Answer 369

hese transactions are also voidable by the beneficiary but the trustee does have a defense in these cases if the trustee can show that the transaction was fair and the transaction terms reflect terms that would have been the terms with an unrelated third party. If they can show that then it isn’t voidable and the trustee isn't liable.

Answer 370

Settlor can exempt certain duty of loyalty transactions in the trust document. If a trust authorizes it it doesn’t matter if it is an 802(b) or (c) action. Beneficiary consent is also a defense but only against claims of the specific beneficiaries that gave the consent. If there are future beneficiaries, those beneficiaries can be represented by another beneficiary who has a substantially similar interest under the trust. Or by someone appointed as a representative? If the beneficiary waits too long to sue there is a SOL as to the beneficiary’s claim to a conflict of interest transaction.

Answer 371

Yes, it reduces risk. Within the duty of prudent investing, when deciding on a particular investment you don’t just look in a vacuum you have to look at all the assets in the trust to make the decision. If you already have a bunch of municipal bonds you may want to invest in something different. However, sometimes a trust may have special assets where the duty to diversity may be lessened depending on the settlor's intention based on some sort of special relationship such as a family business.

Answer 372

There cannot be a secret trust where beneficiaries don’t know about the trust or the terms…beneficiaries have to know the minimum.

Answer 373

Any beneficiary qualified or not can request a copy of the trust instrument and they can request a copy of an annual report… Qualified beneficiaries have to be given an annual report.

Answer 374

Qualified beneficiaries are those who hold the present interests in the trust or those that are next in line to the future interests and then looking at the third group of qualified beneficiaries those are the ones who are entitled to the final distribution of the trust.

Answer 375

When it comes to giving notice to minors or beneficiaries not born yet they can be represented by a guardian of some kind or a parent of a minor. Also beneficiaries who have interests substantially identical can represent another beneficiary that is not able to represent themselves.

Answer 376

Nevada provides a self settled spendthrift trust which allow the settlor to set up an irrevocable trust, of which he settlor is a discretionary beneficiary, and the assets of which are (by NV law) immune to claims of either the settlor’s or any other beneficiary’s creditors. Unlike the laws of most states, Nevada has no special class of exception creditors which status would otherwise permit those creditors to attach the assets of the trust. Nevada allows creditors to attach trust assets in a self-settled trust upon providing actual fraud only (and not “constructive” fraud). No RAp, so dynasty/perpetual trusts permitted.

Answer 377

Settlor consents: settlor plus all beneficiaries may modify or terminate. Settlor does not consent: - Claflin doctrine: consent of all the beneficiaries, and not contrary to a material purpose of the settlor. - equitable deviation doctrine: can deviate when change in circumstances happens...change has to be administrative. Petitioner must show unanticipated change in circumstances that will either defeat or substantially impair accomplishment of the trust (traditional law), or will further the purposes of the trust (UTC/third restatement).

Answer 378

a fiduciary relationship where one (the guardian) is appointed by the court to be the guardian (of some type) for the person who needs protection and assistance.

Answer 379

a determination of incapacity is a legal not a medical decision, based upon a demonstration of management insufficiencies over time in the area of person or estate. Age, eccentricity, poverty, or medical diagnosis alone shall not be sufficient to justify a finding of incapacity.

Answer 380

a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety. ...incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

Answer 381

there are often separate POA's for financial matters vs healthcare decisions... a POA is a written instrument designating an agent, who is sometimes called an “attorney-in-fact,” to act on behalf of the principal

Answer 382

POA must be: - signed and dated by the principal - signature must be either acknowledged before a notary public or other individual authorized by law to take acknowledgements, or attested by two or more competent witnesses who are not home care providers for the principal...and who are unrelated to the principal or agent by blood, marriage, or state registered domestic partnership, by subscribing shri names to the POA, while in the presence of the principal and at the principal's direction or request.

Answer 383

POA: Can be put in place deliberately, as plan, per desire of competent principal Activated or revoked at any time by (competent) principal No judicial involvement to activate upon principal’s incapacity (if durable; per terms), or to terminate if capacity regained No judicial supervision of agent required Conservatorship: Can only be initiated by court upon ward’s (principal’s) incapacity Can only be terminated by court Judicial supervision required.

Answer 384

◦ 1) make gifts of the principal’s assets, which may be limited (an agent may only gift up to a certain amount each year) or unlimited (an agent may gift any amount), ◦ 2) create or modify a trust, ◦ 3) create or change a beneficiary designation on a retirement plan or other asset, ◦ 4) waive the principal’s right to be a beneficiary of a joint and survivor annuity, ◦ 5) disclaim any interest in property or power of appointment, ◦ 6) delegate powers under the power of attorney, ◦ 7) change or create rights of survivorship, and ◦ 8) exercise fiduciary powers of the principal.

Answer 385

delegates medical decisions to an appointed proxy, i.e. a chosen surrogate decision maker.

Answer 386

enumeration of preferences that address a range of specific medical contingencies ◦ Advance Medical Directives allow individuals to document their decisions while competent...advance directive trumps surrogate decision.

Answer 387

medical orders to emergency personnel for what treatments to provide to the patient when the patient is having a medical emergency but cannot speak or communicate.

Answer 388

Nope, WA adopted the Uniform POA Act and the acted the presumption that they are not durable meaning they now to say they are durable or survive the incapacity of the principal

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