Wills, Trusts, and Estates Flashcards
(36 cards)
Intestate Succession
Any property that does not pass by will upon the decedent’s death will be distributed according to the state’s applicable intestacy statutes
If the decedent is survived by ONLY a spouse:
The surviving spouse will inherit the entire estate.
If the decedent is survived by a spouse AND descendants:
the surviving spouse will inherit one-half or one-third of the decedent’s estate with the surviving descendants inheriting the rest.
If the decedent is NOT survived by a spouse:
the decedent’s surviving descendants will inherit the entire estate equally
Intestate Succession - If the decedent is not survived by a spouse or descendants:
the decedent’s surviving parents will inherit the entire estate equally
A will is valid if:
Specific formalities by state law must be met
Generally must:
- be in writing
- signed by the testator
- signed by at least two witnesses
Witness Signature Requirements
Witnesses must sign the will in the testator’s presence within a reasonable amount of time after witnessing the signing of the will.
Under the traditional view - W signs the will in the testator’s presence if she signs it within T’s line of sight.
Under modern view - W must sign within T’s range of senses (i.e. she can be down the hall if they can hear each other)
Interested Witnesses
Under common law, the signing of the will must be witnessed by two disinterested witnesses (people who don’t benefit)
Most states have abolished common law rule and allow interested witnesses to validly witness the signing of the will.
Holographic Will
A handwritten will that is not witnessed.
Most states do not recognize them.
Only valid if the testator signs it personally.
Incorporation by Reference
In most states, a document or writing may be incorporated into a will by reference if:
- The testator intended to incorporate the document into the will,
- The document was in existence at the time the will was executed, and
- The document is sufficiently described in the will.
Codicil
A codicil is a supplement or addition to a will that is made after a will is executed.
It can explain, modify, amend, or revoke provisions of an existing will.
It must satisfy the same formalities as a will in order to be valid.
Revocation by Physical Act
3 physical acts can revoke a will:
- Subsequent Written Instrument (expressly or implied by inconsistency)
- Cancellation (burning, tearing, destroying with intent to destroy)
- Partial Revocation (marks of cancellation)
Dependent Relative Revocation
Under DRR, the valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will.
ONLY applies when the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate.
Revival under common law
The revocation of a subsequent will automatically revives the prior will.
No intent requirement.
Revival under the modern view
Most states permit the revival of a revoked will if:
- It is evident that the testator intended the revoked will take effect as executed; OR
- The testator republishes the revoked will with a subsequent will or codicil that complies with the statutory formalities for execution.
Anti-lapse statute
Under an anti-lapse statute, devises will vest in the descendants of the predeceased beneficiary if the predeceased beneficiary:
- is a blood relative of the testator; AND
- has descendants who survive the testator
Doctrine of Ademption
If the subject matter of a specific devise is not in the estate at the time of the testator’s death, the devise to the beneficiary adeems or fails
Elements of a valid express trust
- The settlor has intent to create the trust
- There is trust property (res)
- An ascertainable beneficiary exists
- The trust has a trustee; AND
- All parties comply with the requisite formalities (i.e. SoF)
Testamentary Trust
A trust created by a will.
Must be executed with the same formalities of a will.
Revocable/Irrevocable Trust
Under the common law (majority view), a trust is irrevocable UNLESS the settlor expressly retains the right to revoke or amend the trust.
Under the Uniform Trust Code (minority view), a trust is revocable unless the trust expressly provides otherwise.
Pourover Provision
A provision in a will that devises property to a previously existing trust
It does not create a trust - it transfers property to a trust already in exists
Note: it cannot devise property to a testamentary trust
Cy Pres Doctrine
If the charitable purpose becomes:
- unlawful, impracticable, or impossible;
- no alternative charity is named in the trust; and
- the court finds that the settlor had general intent
then court will apply cy pres to modify/terminate the trust
Trust property will be distributed in a manner consistent with the settlor’s general charitable intent
Spendthrift Trusts
Contain provisions designed to protect beneficiaries from their own carelessness.
Serves two main functions:
- Beneficiary is not permitted to sell or assign his beneficial interest and
- the beneficiary’s creditors cannot reach the beneficiary’s beneficial interest
Fiduciary Requirements of Trustees
Trustee must:
- Manage the trust property exclusively for the benefit of ALL the trust’s beneficiaries; and
- Administer the trust in good faith pursuant to the terms and purposes of the trust.
Duty to administer, loyalty, report, separate trust property/keep records, etc.
