Wills & Trusts Flashcards
W and Ts: Can I, as executor, give myself a ring worth $8000 instead of the cash gift outlined in the will?
No, but I can give myself a cash-equivalent (like stocks), assuming noone has a better right to those stocks.
W and Ts: Does writing on the will like “X” or “NO LONGER VALID” sufficiently revoke a will?
No. Needs to be destroyed.
W and Ts: When looking at wills, what should the first step be:
“1. did the will maker have capacity?
2. did the will maker intend to make a will?
3. was will properly executed?”
W and Ts: Testator had capacity and instructed their lawyer to draft a will but then became disabled shortly after. At the time they signed the will, the lawyer asked “do you know that you’re signing a will?” Testator said yes. Valid will?
Probably
W and Ts: Formalities for a will
“1. in writing
2. signed by testator or someone directed by testator
3. in the presence of two or more witnesses
4. who also sign the will in the presence of the testator (but not ness. to each other)”
W and Ts: What if I say “I, Elizabeth, do hereby bequeth my piano to X.” Is that a will?
Could be. That could count as a signature.
W and Ts: What is the threshold for a witness?
Anyone who can see that the testator is signing something. No need for witness to actually read contents or know that the signature is for a will.
W and Ts: “I leave $10 to the people I write in my notebook from 2019”… is this valid?
Only if the notebook from 2019 already exists. For example, “I leave $10 to the people that I will write in my notebook.”
“W and Ts: A dies intestate and her husband died in the same car accident.
1. Can husband inherit her estate?
2. What if he’s on life support and doesn’t die until 28 days after A?
3. What if A and husband had kids?”
“1. No, spouse must survive at least 28 days longer.
2. Yes. He gets entire estate if they don’t have kids
3. Husband gets $270,000, the personal chattels and 1/2 of the residue. Note that he doesn’t get the family home.”
“W and Ts: A dies with a will leaving $100 each to her son, stepson and nephew. The son, stepson and the nephew each have kids and they all die before A.
1. Do the son’s kids inherit the $100?
2. Do the stepson’s kids inherit the $100?
3. Do the cousin’s kids inherit the $100?”
“1. yes
2. no, because the stepson is not a child of the testator for this exception
3. no, because the nephew is not a child of the testator.”
W and Ts: “I leave my car to my son.” Which car am I talking about?
Generally gifts are determined at death, but there’s an exception for “my car” so that “my car” is the car at the time of the will
W and Ts: A dies without ever knowing her father, can the dad show up out of the blue and claim her estate?
No, law assumes that dad died before A.
W and Ts: I was named as executor, but I don’t want the job, how do I renounce?
“1. file renunciation at the probate registry
2. renunciation must be in writing, signed by person renunciating and a witness and state that the person renunciating has not intermeddled in the estate
Note person renunciating can’t change mind and can’t have “intermeddled”
W and Ts: Normally PRs need to be granted probate/admin to sell assets but what can they sell without those?
Chattels such as furniture, jewelry, clothing and cars can be sold without the PRs proving that they are entitled to sell such items. They only need a death certificate.
W and Ts: Order of entitlement for Letters of Administration with Will Annexed
“1. trustee of residuary estate
2. beneficiary of residuary (vested > contingent)
3. PRs of any beneficiary of residuary except a life tenant of the residue
4. any other beneficiary or creditor
5. PRs of any other beneficiary or creditor, except a life tenant”
W and Ts: How many administrators must be appointed for Letter of Administration with Will Annexed?
1, except if a beneficiary is a minor or there’s a life interest, then two.
W and Ts: What is “clearing off” and who has to do it?
“You “clear off” people with better entitlement to become an administrator. Applicable in application for Letter of Administration with Will Annexed or Letter of Administration.
Note that you can “clear off” people by an order from the Probate Registry or with a citation, either a citation to take probate (if the executor has intermeddled) or citation to accept or refuse grant”
W and Ts: Order of entitlement for Letters of Administration (not with Will Annexed)
Same as intestacy. Note that PRs of the beneficiaries have the same rights as the actual beneficiary, except for PRs of spouses unless the deceased had no kids.
W and Ts: Grant of de bonis non
“court doc that appoints a new personal representative or administrator to handle the remaining assets and settle the affairs of a deceased person’s estate. This grant is necessary when the originally appointed personal representative is unable or unwilling to complete the administration of the estate, typically due to resignation, incapacity, or death. The grant of de bonis non allows a successor personal representative to step in and continue the administration process, ensuring that the remaining assets are properly distributed to the beneficiaries or heirs of the estate.
Note that intestate death would break the chain of representation.”
W and Ts: Why would I lodge a caveat and how is this different from a citation?
“A caveat filed with the Probate Registry lasts up to 6 months and prevents the issue of a grant of rep. You might file a caveat if you are a beneficiary and you want to say that the will is invalid or the executor named in the will lacks mental capacity.
Citation forces the named executor in a will or a person with better entitlement to administer to apply to take probate or adminster.”
W and Ts: Can I, as executor, give a beneficiary a ring worth $10,000 instead of cash?
Yes, provided the beneficiary consents and the value of the ring is not more than the cash entitlement (determined at the time of the transfer, not death)
W and Ts: Can PR reimburse themselves for expenses?
Yes
W and Ts: Can PR run the deceased business?
No unless they’re doing it so that they can eventually sell it and the will allows it.
W and Ts: PRs can generally be sued by any unpaid beneficiaries or creditors, how can they protect themselves?
“1. By placing ad in London Gazette plus other newspapers telling people to contact them within at least 2 months
2. By making payment to the court
3. By having beneficiaries indemnify the PRs
4. By getting a Benjamin Order (ct order)
5. Purchasing insurance
6. Waiting 6 months from being appointed to distribute estate in order to wait and see if any Inheritance Act 1975 claims come up”
W and Ts: Order for payment of debts for insolvent estates
“1. reasonable funeral and admin expenses
2. wages and salaries of deceased’s employees (but only up to $800 each)
3. ordinary debts - money owed to HMRC and other debts
4. interest on debts
5. deferred debts - debts from spouse”
W and Ts: I was promised $100 in the will, but the PRs used the cash in the estate to pay down debts, can I ask the PRs to give me $100 from the residuary?
Yes, that’s called marshalling. Doesn’t apply when the will specifically said that the cash money can be used to pay down debts.
W and Ts: How beneficiary can vary a gift (as opposed to disclaim a gift)?
“1. in writing
2. within 2 years of death and
3. not made for monetary consideration
Can be partial or whole variation. Beneficiary still owes tax on the gift.”
W and Ts: Formal requirement for transferring land to a beneficiary
“You need an assent (even if the PR and beneficiary are the same person), which must be:
1. in writing
2. signed by the PR and
3. name the beneficiary.
4. Transfer must also be registered either by the PR or by the beneficiary”
W and Ts: Time limit for claims under Inheritance Act 1975
6 months from appointment of PR (although ct has discretion to allow for a later claim)
W and Ts: Who can apply for claims under Inheritance Act 1975
“1. surviving spouse
2. former spouse if not remarried (but not if it’s a clean break divorce)
3. child or a person treated as a child (like a stepchild)
4. person who was being maintained (think caring for a sickly aunt or a mistress)
5. person living with the deceased for the entire 2 years before death as if they were the spouse or partner”
Note that the deceased must have been domiciled in E&W at the time of their death.
W and Ts: How much will be given if the claim under Inheritance Act 1975 is successful?
“If a spouse, then what is reasonable in all the circumstances (i.e., if the deceased is super rich, then the spouse could get more than just what is required to live decently)
If anyone else, then just what is required to live comfortable
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W and Ts: What to look for in a trust question
“1. intent to create the trust now
2. who are the beneficiaries
3. what is subject to the trust (confirmed future interest is ok though)
4. ascertainable human beneficiaries (except for charitable trusts)
5. trust vests within 125 years after the life of any person living (rule of perpetuities)
6. trust period is within 21 years or 21 years of a life in being (inalienability rule) (except for charitable trusts)
7. were the goods actually transferred to the trustee (if intervivos trust)”
W and Ts: What happens if any of the three certainties for a valid trust fails
“1. unclear intent to create a trust = it’s a gift, beneficiary can keep
2. unclear who the beneficiaries are = resulting trust in favor of the settlor or settlor’s estate
3. unclear what property belongs to the trust = ownership of property goes back to settlor’s estate”
W and Ts: Given postulant test
“Is it sufficiently clear that a particular person qualifies as a member of the class in a discretionary trust? For ex: ““the employees and ex-employees of the Cypress branch of McDonald’s””
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W and Ts: Oral declaration of trust is ok, except in what instance
Transfers of land must be in writing and a transfer deed must be signed and filed at the land registery.
