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Trusts, Wills, and Estates - Coggle Diagram

- - - - Writing - Must be written, not spoken, for UBE
      - Signed - can be any mark, or done by another in testator's presence, so long as testator means it to act as their signature
      - Testator must sign or acknowledge a previous signature in each witness's presence
      - 2 attesting witnesses sign in testator's presence
        
        CL: must be disinterested
        
        UPC can be interested so long as no sign of undue influence, which reqs:
        
        Influence exerted on testator
        
        influence overpowers testator's mind and free will
        
        influence caused a will to be executed which would not be executed otherwise
      - (Optional, some states req) - testator's signature at end of will, publishing of will, and witnesses signing in each other's presence
      - Mental Capacity, must understand:
        
        nature and extent of prop
        
        natural objects of bounty, aka who's getting it
        
        testamentary effect of executing a will
        
        presumed to understand unless substantial evidence to contrary, proved by challenger
        
        even if some lack of capacity, so long as it's made in a moment of lucidity it's good
      - testamentary effect: must transfer prop at time of death, nothing else. Not be a thought/draft of what to do, needs intent at time of writing.
  - - - Operation of law:
        
        testator divorces after will, all provisions favoring ex-spouse become ineffective for all purposes, unless provisions were intended to survive the divorce
        
        Surviving spouse married testator after will made: entitled to amount she would've received had they died intestate
      - Written instrument: making a new will or codicil, though if not made/invalid, some courts will admit previous will. Need evidence of testator's intent (Dependent relative revocation)
      - Physical act: burning, tearing, canceling, obliterating, or destroying the will/any part of it
      - Partial revocation is allowed under UPC
  - - - specific bequest: gives 1 specific thing, ex "I give my car to X"
        
        Ademption: if specific item isn't there, gift is adeemed, considered null and void, no substitution, some exceptions
      - general legacy: payed from general assets of estate, not a specific item
      - demonstrative bequest: gives a certain sum from a specific fund, ex "100 shares of stock" (not "100 shares of MY stock" that'd be a specific bequest)
  - - - Majority Rule: Per capita with representation
        
        1st gen (kids of decedent) divide shares equally. 2nd gen (grandkids) divides whatever their own parent's share was. AKA if you have siblings but your cousin doesn't, your cousin gets twice as much as you. Pg 285
      - Modern trend: Per capita at each generational level
        
        1st gen (kids of decedent) divide shares equally, same as majority. 2nd gen (grandkids) divides based on total number of grandkids. So if you have siblings and cousin doesn't you all still get the same amt (assuming parents are dead)
  - - - Anti-lapse statute: saves gift for beneficiary who died before testator and passes on to their descendents. UPC allows this for stepkids, grandparents,descendents of testator's grandparents
    - - written
      - declared disclaimer
      - be delivered or filed
      - be signed by the disclaiming party
      - describe the interest or power disclaimed
  - - - 18+
      - mental capacity
      - intend will to have testamentary effect
      - Signed and witnessed
    - - Same as attested will, but not witnessed
      - must all be in testator's handwriting and signed by testator
    - - NOT ON UBE - oral aka deathbed will, must be when death is imminent and giving only personal, not real, property
    - - Use per capita with representation, start at 1st level of heirs, split evenly, then next level if dead, and so on
    - - Later testamentary instrument that amends a will. In some states, accept a list of prop or whatever if will manifests intent to do so
- - - - private express trust: most trusts made, the std
      - Charitable trusts: private express trusts but special rules because of societal benefit
        
        indefinite beneficiaries - but can't be restricted to a small group of people even if for charitable purposes
        
        charitable purpose
        
        relieve poverty
        
        advance education
        
        advance religion
        
        promote health
        
        perform gov purposes, like parks and rec
        
        other purposes beneficial to the community
        
        any benefit to public is fine, even if broad, even if settlor is only really doing for tax reasons
        
        ignores rule against perpetuities, can be perpetual, though if preceded by a noncharitable estate, must vest before RAP applies
        
        Cy pres doctrine: If designated charity doesn't exist at settlor's death, court can redirect it to a purpose as near as possible to the original charitable endeavor
        
        terminated if charitable purpose can't be carried out as intended and reqs for cy pres are not met, trust in favor of settlor's estate results
    - - Resulting Trusts: gives prop to rightful owners when circ require, even though there has been no wrongdoing by anyone. From a failure of an express trust, a purchase money resulting trust, or an incomplete disposition of assets
      - Constructive trusts: deprive a wrongdoer from retaining improperly obtained property. Conveys prop to the person who owned it but for the wrongful conduct
  - - - Makes the trust
      - needs objective manifestation to make trust
      - can't have impermissible purpose like doing crime to get the trust
      - needs same mental capacity as for wills
      - not limited to transfers at death, can be inter vivos (while living) or testamentory (after death)
      - needs something in it, called the res, which must be sufficiently identifiable, often with a document showing the title
      - Needs a present or vested interest (life insurance is usually considered vested for trusts)
    - - Powers
        
        settle or abandon trust claims
        
        exercise all rights and powers an unmarried individual has over their own property
        
        borrow money
        
        sell or lease trust assets
        
        apportion trust income
        
        incur reas expenses nec to maintain trust property
        
        decisions are not subject to attack unless trustee abused their discretion. If trustee has absolute discretion, then only bad faith makes their actions improper
      - Duties
        
        loyalty and good faith
        
        no self-dealing unless trust permits specific acts
        
        no personal benefit besides official compensation
        
        no apparent conflict of interest
        
        keep trust assets segregated from personal assets
        
        preserve trust property and make it productive
        
        objective std of care unless superior skills warrant a higher std
        
        prudent investor rule governs:
        
        permitted to invest as a prudent investor would, considering interests of beneficiaries and remaindermen. Must consider rate of return and safety of investments
        
        must seek to diversify investments
        
        std is reas care, skill caution
        
        some states have a "legal list" of approved investment types
        
        dispose of wasting or non-productive assets
        
        maintain accounting of transactions
        
        enforce claims and defend trust from attack
      - Administers will, has legal title to res, must be a mentally capable adult. Corporations can be trustees, can be a trustee for yourself
    - - Who gets the trust, can be unknown/unknowing, but must be specific in trust
      - can be a class, but must be specific, ex "all students who get above a 3.8 at vls," not just "all good students"
  - - - end of trust term, or
      - modified
        
        settlor can revoke/amend it unless trust says they can't
        
        Beneficiaries can modify if it doesn't conflict with a material purpose of the trust. If it does, they need settlor's consent.
        
        If beneficiaries don't agree, court can modify/terminate if: 1. it could've been modified if all beneficiaries consented and 2: the interests of nonconsenting beneficiaries will be protected
        
        Trustee can terminate the trust if it's worth less than $50,000 and the amount isn't enough to justify administration
      - all purposed accomplished
    - - gives extra power to trustee to decide when to give the trust income, beneficiary has no right to income till distributed
      - decision is subject to an abuse of discretion review
    - - Spendthrift provision: Beneficiary can't voluntarily/involuntarily transfer interest of trust. Doesn't apply once income is paid to the beneficiary. Doesn't protect against claims by gov or child support, spousal maintenance, or to pay for services rendered to a beneficiary. Settlor can't create their own spendthrift trust.