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Trust and Estates (Decedent's Estates (Bequests (ademption (applies to…
Trust and Estates
Decedent's Estates
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Interstate succession: when there is no will. NO surviving descendants? - spouse takes the entire estate. If the are surviving descendants, spouse takes 1/3 or 1/2 of the estate.
majority rule: per capita with representation: property divided into equal parts at first generational level w. living heirs. If the person is dead, the share is divided between the person's children. Grandchildren's amount depends on having siblings or not.
modern trend: at generational level: first split is the same and all takers with deceased parents divide the shares equally. So, grandchildren take equal shares.
Beneficiaries
If beneficiary dies before testator, the person's gift lapses and falls into the residue.
Anti-lapse statute: some states require a specified degree of relationship to the testator and left descendants. So, stepchildren do not apply.
Uniform Probate Code extends the anti-lapse statute to the testator's stepchild, grandparent, or descendant of the testator.
Bequests
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advancement
lifetime gift made to an heir with the intent that the gisft be applied to the heir's share of the statte.
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Revocations
Will contest: defective execution, lack of capacity or revocation,
mental capacity: 1) testator must be 18 or older when will was executed; 2) testator must understand the act; 3) testator must understand the nature and extend of testator's property; 4) beneficiaries are the natural objects of his bounty; and 5) testator understands the nature of the disposition
undue influence requires: 1) influence on the testator; 2) the influence overpowered the testator's mind and free will; and 3) the result of the influence was a will not being executed but for the influence
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no-contest clause: disqualifies anyone contesting the will from taking under it. EXC: when the person affected has reasonable cause to contest the will.
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Methods
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physical act: burining, tearing, destroying the will or part of it
Dependent relative revocation: testator revokes based on mistake of law or fact where testator would have made a different bequest but for the mistaken belief.
Trusts
Beneficiaries
Modification: can be revoked or amended unless it states the contrary. Settlor's consent is required. If all beneficiaries don't agree a court can modify or terminate the trust when the trust could have been modified if all beneficiaries had consented, and the interests of any non-consenting beneficiaries will be adequately protected.
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Trustee
Duties
Loyalty and good faith; preserve trust property and make it productive; dispose of wasting or non-productive assets; mantain accounting transactions; enforce claims and defend trust from attack
Powers
settle or abandon trust claims; exercise rights of unmarried person over the person's property; borrow money; sell or lease trust estates; apportion trust income; and incur reasonable expenses necessary to maintain trust property.
Types
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implied
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resulting: places property in the hands of rightful owner if required, even if there was no wrongdoing.
express
Created by inter vivos trusts by a declaration of trust, inter vivos by transfer of property, testamentary trust created by will
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Creation
Requires settlor's capacity, intent to create the trust at that moment, the trustee must also have the mental capacity to administer the trust and cannot be a minor. Also, a settlor can create the trust and name himself a trustee. Res, settlor places title on the trust property and delivers the trust by inter vivos transfer or a testamentary trust.