Intestacy
What does the spouse of a decedent receive in intestacy? In CP and SP states/to CP and SP property
In CP 100% goes to spouse
In SP
What are the basic requirements for an attested will?
When is a holographic will considered valid?
Attested Will
1. In writing
2. Signed by Testator
3. Attested by two witnesses present at same time
Holographic will
1. Material provisions (gifts and beneficiaries) are in the testator's handwriting.
2. Signed by testator.
3. Testamentary intent (pre-printed form or through T handwriting)
What is substantial compliance? What is strict compliance? What is the harmless error rule?
Substantial: A document may be valid even if formalities are imperfect if clear and convincing evidence shows testator intended it to be a will.
(CA) Strict: All formalities must be followed, substantial compliance not recognized
Harmless error:
What are the elements to create a trust? What are the two main types of trusts?
Intent to create a trust. Specific property ("trust res"). Ascertainable beneficiaries. Writing if required (SOF or Wills Act). A trust does not fail for lack of trustee; court will appoint one.
Testamentary trust
Inter vivos trust
What are a trustee’s core fiduciary duties? When can a trustee be removed?
Duty of loyalty—no self-dealing.
Duty of Care - Prudent person/investor
Can be removed for: material breach of trust, lack of cooperation among co-trustees, failure to administer effectively, substantial change in circumstances, or unanimous request by all beneficiaries.
What is the difference between per capita and per stirpes distribution (strict and modern)?
Per Stirpes (Strict Per Stirpes)
Always divide at the children’s generation, regardless of whether any are dead.
Each child’s “branch” receives an equal share.
If a child is deceased, their descendants take that child’s share by representation.
Modern Per Stirpes (Per Capita with Representation):
Identify the first generation with at least one living member.
Divide the estate into equal shares for each member of that generation (living + dead with living issue).
Living members take their share; deceased members’ descendants split their parent’s share.
Per Capita at Each Generation (UPC):
Identify the first generation with a living member, divide into equal shares.
Living members take their share.
Pool the remaining shares of deceased members and redistribute equally among all members of the next generation (not by branches).
What are the two types of fraud?
In execution
In Inducement
What are the two methods of revocation?
What is the presumption of lost wills?
Revocation
1. By subsequent instrument executed with same formalities.
2. By physical act (burning, tearing, canceling, obliterating, destroying) with intent to revoke
Lost will: Presumed testator revoked or destroyed will if:
1. will last in Testator's possession
2. Testator was competent until death
3. original will or duplicate cannot be found
Under the prudent investor rule, how is investment performance judged?
What is the duty of impartiality?
Prudent investor: In context of the entire portfolio, focusing on risk management.
Impartiality: Trustee must balance interests of income and remainder beneficiaries.
What is the no further inquiry rule? What are the exceptions?
If the trustee engages in self-dealing, courts treat it as an automatic breach. No justification, fairness, or good-faith defense unless an exception applies.
Exceptions: Settlor authorization within the trust instrument. Beneficiary consent after full disclosure. Court approval of the transaction. Regardless, good faith cannot be waived.
What is equitable Adoption?
Relationship began during minority and continued throughout joint lifetime AND clear and convincing evidence that child would have been adopted but for a legal barrier
Factors: cohabitation, caretaking, holding out as child.
What is incorporation by reference? What is integration? What is Republication by codicil?
Incorporation by reference: Writing in existence but not present at execution is absorbed into the will
- Requires: (1) writing must be in existence when it will executed (2) will reflects an intent to incorporate and (3) will sufficiently describe the document
Integration: All papers present at the time of execution that were intended to be part of the will are considered integrated into the will
Republication by codicil: a validly executed will is treated as re-executed (republished) as of the date of the codicil
What happens when a class gift when the beneficiary dies? What is the "no residue or a residue" rule?
On lapse specific or general gifts fall into the residue; Residual gifts pass to heirs by intestacy
No Residue rule:
Common law: EX- I leave the balance of my estate one half to A and on half to B. A predeceased me, my estate passes one half to B and one half to my husband the intestate heir
New rule: if you name 2 or more people, and they are deceased, then it will go to the others that were named
What are secret and semi-secret trusts? When is EE allowed?
Secret: Appears as an outright gift on the will's face but in reality based on oral promise of trustee-beneficiary. EE admissible.
Remedy: constructive trust (prevent unjust enrichment).
Semi-secret: Will states property is held 'in trust' but fails to state terms/beneficiaries.
EE NOT admissible → trust fails → resulting trust to heirs
What are the types of trust distributions?
Mandatory Distribution Trusts
Trustee required to distribute based on fixed terms.
Fixed amount or fixed percentage
Discretionary Distribution Trusts
Gives discretion to trustee over when, to who, or in what amount to make a distribution
1. Pure
Trustee has absolute discretion over distributions to the beneficiary
2. Support
Trustee is required to make distribution for the beneficiary's education or support
When are posthumous children allowed to inherit? What's the exception?
When conceived before death
If conceived after death, they can inherit if:
What are the two ways to revive a will? What is the anti-revival assumption?
1. Equitable- Dependent relative revocation
2. Statutory
Anti-Revival Assumption:
What are anti-lapse statutes? When do they apply?
A rule that substitutes a beneficiary when a gift would otherwise lapse
Applies when the devisee predeceases, is kindred, leaves issue, and no contrary distribution provided.
Applies to class gifts if:
What is a spendthrift trust? What is the CA exception?
The beneficiary cannot voluntarily alienate her interest in the trust, regardless of whether the beneficiary is entitled to mandatory distributions
Exception:
Spendthrift protections do not apply for
1. settlor-creditor claims
2. spouses/former spouses or minor children for support judgments
4. restitution judgments
5. reimbursement claims for public benefits.
What is a charitable trust? What does it require? When does cy pres apply? Who can enforce a charitable trust?
allows donor to make gift to support a charitable purpose
Must serve a charitable purpose and benefit an indefinite group.
Cy Pres applies if the charitable purpose becomes: illegal, impossible, impracticable, or wasteful.
The AG, settlor or someone with a “special interest.” (must show you receive a particular benefit under the trust that's not available to the public at large)
What is an advancement and what is the rule and remedy?
Advancement = lifetime gift intended to count against inheritance.
Modern rule: presumption against advancement unless in writing (UPC §2-109).
If considered advancement -> Hotchpot: advancement added back to the estate, then redistributed
How do you determine if someone has capacity? How do you determine if someone has an insane delusion?
Capacity
1. Testator understands the nature of the act
2. Knows the extent of property
3. Understand the proposed testamentary dispositions
4. Knows the natural objects of her bounty
5. Will represents wishes
Insane Delusion:
1. There is a persistent belief in that which has no existence in fact and which adheres to against all evidence
2. The delusion affects the estate plan
What are the types of changes in property?
Ademption by extinction
Satisfaction
Exoneration
Abatement
Can a creditor reach:
1. Settlors' debts
2. Trustees' debts
3. Beneficiary's debts (Mandatory Distribution trust)
4. Beneficiary's debts (Pure Discretionary Distribution trust)
5. Beneficiary's debts (Support Discretionary Distribution trust)
1. Creditors of the settlor can reach the trust assets as if the settlor owned them outright.
2. An irrevocable trust may incur debts, and creditors can reach trust assets for trust debts and sue the trustee in fiduciary capacity.
3. Where the trust must distribute funds, creditors can attach the distributions and may compel distribution to themselves.
4. Creditor has no recourse against the beneficiary's interest in the trust, but can obtain an order that if the trustee does distribute, the creditor gets paid first.
5. creditors cannot compel distribution but can attach excess distributions.
1. What is an elective share and what assets are included?
2a.What is a pretermitted spouse/child?
2b. When will they not receive a share?
1. A statutory right for spouse to take a fixed fraction of the estate instead of the will; Elective share includes probate estate + certain nonprobate transfers the decedent controlled.
2a. Spouse married after execution of will, presumed accidentally omitted; Child born/adopted after will execution, presumed accidentally omitted. Both CP and SP states protect pretermitted spouses/children
2b. Spouse does not take if:
Child does not take if: