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.