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Trusts & Estates (Wills (Attested Wills
Under the UPC, a person…
Trusts & Estates
Wills
Attested Wills
- Under the UPC, a person can execute an attested will if they are over 18, have mental capacity, and intend the will to have a testamentary effect.
- The will must also be signed and witnessed
Testamentary Intent at Execution: The will must evidence the testator's intent for the will to transfer property at the time of death. (This intent must exist at the time of the writing of the will)
Witnesses: UPC requires attested will to have two witnesses. The UPC allows witnesses to be interested as long as there is no sign of undue influence. The witnesses must either see the testator sign or the testator must acknowledge their signature in the witness' presence.
Signed: You can sign or you can direct another to sign for you or acknowledge that a previous signature is yours.
Mental Capacity: A testator must understand the extant and nature of their property, the natural objects of their bounty, and the testamentary effect of executing a will. A testator is presumed to understand these three things unless there is substantial evidence to the contrary.
Holographic Wills:
- A holographic will is one that is not witnessed
- All material parts of a holographic will must be in the testator's handwriting.
- A holographic will must be signed by the testator
Nuncupative Wills:
- Nuncupative wills (aka death-bed wills) are oral.
- They are not allowed in most states or on the UBE
- Generally, states require for a nuncupative will to be valid that it must be made when death is imminent.
- Nuncupative wills can only be used to transfer personal, not real, property.
Codicil:
- A later testamentary instrument that mends or alters the prior will.
- A codicil must be executed in the same manner as a will.
- Some sate will accept an amendment through incorporation by reference such as a list of personal property if the will manifests intent to incorporate the document
Undue influence requires:
(1) Influence exerted on testator;
(2) Effect of influence over powers the testator's mind and free will; and
(3) Product of influence was a will not being executed but for the influence.Fraud
- Fraud in factum would involve a misrepresentation as to the nature of the contents of the will.
- Fraud in the inducement would be a misrepresentation as to facts that would influence the testator's motivation to make a will in the first place.
A no-contest clause attempts to disqualify anyone contesting the will from taking under it. (clause will be enforceable if the will contest is unsuccessful and no probable caused exited).
Revocation
- partial revocation is allowed under UPC
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Physical Act (burning, tearing, canceling, obliteration, or destroying the will or any part of it)
Operation of law:
- Testator divorces after making a will - all provisions in favor of the ex-spouse become ineffective for all purposes, unless the provisions were intended to survive the divorce
- Surviving spouse married testator after testator executed the will. Surviving spouse entitled to the value of the share she would have received if the testator had died intestate
Dependent relative revocation: (equity doctrine)
- Testator revokes an old will with the intention that a newly executed will replaces it. If new will is not made or is invalid, some jurisdictions will admit the revoked will to probate. (Need evidence of testator's intent)
Anti-Lapse statutes:
- Statute operates to save the gift when the predeceased beneficiary was in a specified degree of relationship to the testator and left descendants.
- Some states require the beneficiary and the beneficiary's descendant to be a descendant of the testator.
- However, the UPC extend the statute's application to the testator's stepchild, a grandparent, or a descendant of the testator's grandparent.
Beneficiaries
Simultaneous death:
- occurs when two or more persons, one of whom is the beneficiary of the other, dies under circumstances where there is insufficient evidence to determine which party survived the other.
- Under the UPC, a person who cannot be established to have survived the decedent by 120 hours is deemed to have predeceased the decedent.
When a beneficiary dies prior to the testator, that person gift lapses, of fails.
- If the gift was the residue, there is generally no residue of residue. Modern statutes provide that the residuary beneficiaries who survive the testator take the deceased beneficiary's share of the residuary estate.
A person may disclaim an interest in property under a will. In order to be effective, a disclaimer must:
- be in writing or other record;
- Declare the disclaimer;
- Describe the interest or power disclaimed;
- Be signed by the disclaiming party; and
- Be delivered or filed
Types of Bequests
General Legacy: payable out of the general assets of the decedent's estate and not in any separated or distinguished fund from other things of the same kind.
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Specific Bequests (or specific devise): gift or a specific article or other property, which is identified and distinguished from all other things of the same kind and is satisfied only by delivery of the particular thing.
Doctrine of Ademption: Applies to specific bequests that are not in the testator's estate at the time of death. The gift is considered "adeemed" and other property is not substituted
- Satisfaction occurs when a gift has been satisfied by an inter vivos transfer from the testator to the beneficiary subsequent to the will's execution. The testator must provide for the satisfaction in the will or a contemporaneous writing or devisee acknowledges in writing.
- Advancement is a lifetime gift made to an heir with the intent that the gift be applied against the heir's share of the estate. (Lifetime gifts are presumed not to be an advancement unless intended as such)
Surviving spouses are protected from disinheritance by elective share statutes.
- These statutes give the spouse an election to take a statutory share in lieu of taking under the will.
- Under most statutes, the amount if 1/3 of the net probate estate if the decedent is survived by issue and 1/2 if the decedent is not survived by descendants.
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Trust Calssifications
Charitable Trusts: are liberally construed to effectuate the purpose of the settlor. Cy Pres doctrine may also apply to charitable trusts
Constructive trusts are an equitable remedy in cases involving wrongful conduct and unjust enrichment. The trustee's duty is ot convey the property to the person who owned it but for the wrongful conduct. A constructive trust may arise from theft, conversion, fraud, duress, or other situations requiring an equitable remed such as breach of fidcuariy duty.
Express Trust: arises from the intention of the property owner. May be create an inter vivos express trust by declaration of trust by the property owner, stating the trustee hold the property as trustee in trust a transfer of property during settlor's lifetime; a testamentary trust created by a will. Additionally, "pour over" provisions in a will are allowed and direct the transfer of property in to a trust established either by the testator during his lifetime or by another persons rather than creating a brand-new trust.
A resulting trust arises upon the failure of an empress trust, from a purchase money resulting trust or from an incomplete disposition of trust assets. The beneficiary is the one responsible for supplying the trust property, and the trustee hold title, but did not give consideration for the trust property.
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Intestacy:
- Majority of states (and the MEE) use per capita with representation to determine who will inherit under intestacy.
- Per capita at each generation is another common structure (however, per capita with representation is used on MEE)