Trusts and Estates

Trusts

Notice

Discretionary Provisions

Spendthrift Provisions

Interests cannot be transfered

Trustee can decide when to distribute trust

Express Trusts

Implied Trusts

(1) inter vivos trust created by the property owner; (2) an inter vivos trust created by transfer of property during settlor's lifetime; (3) a testamentary trust created by will.

Express trusts are created by intention

(1) resuting trusts place property in the hands of rightful wooers when circumstances require it; (2) constructive trusts deprive a wrongdoer from retaining improperly obtained property

Created by law

Trusts are based on a fiduciary duty

Trustees

Powers

Settle/ abandon trust claims

Sell or lease assets

Borrow money

incur reasonable expenses to maintain property

Future Interests

Life Estates; Acceleration of future interests; Vested/ Contingent Remainders; Powers of appointment; Rule Against Perpetuities; Reversions/ Remainders/ Executory Interests

Duty of Care

Duty of loyalty

Impartiality

Wills

Validity

Intestate Succession

Beneficiaries

Revocation

Bequests

Reversions/ Remainders/ Executory Interests

was it properly executed by an individual with capacity

Execution

If the statutory requirements are not met, the will is void and not just voidable.

Will must be in writing: Most states recognize a holographic will—that is, a will entirely in the testator’s handwriting and no attesting witnesses.

Testator’s signature: may be by any mark. Testator can direct another person to sign for him in his presence.

Two attesting witnesses.

Testator must sign or acknowledge a previous signature in each witness’s presence.

Witnesses sign in testator’s presence.

A codicil is a later testamentary instrument that amends or alters the prior will.

Contested wills

Mental Capacity

Undue Influence

Execution: Testator must be 18 years old or older at date of execution of will; • Testator understands the nature of the act; • Testator understands the nature and extent of his property; • Beneficiaries are the natural objects of his bounty; and • Testator understands the nature of the disposition he is making.

Influence exerted on testator; • Effect of influence overpowers thetestator’s mind and free will; and • Product of influence was a will not being executed but for the influence.

Fraud

No contest Clause

Revocation

Succession

Share of the surviving spouse

Share of children/ descendants

Ancestors

Advancements

Simultaneous death

Trust Options

Irrevocable

Testamentary

Charitable

Pourover

Revocable

Bequests

Specific bequest or specific devise: devise: gift of 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.

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.

Demonstrative Bequest: bequest of a certain sum to be paid out of a particular fund.

Ademption

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

Advancement: lifetime gift made to an heir with the intent that the gift be applied against the heir's share of the estate.