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Wills Trust and Estates - Coggle Diagram

- - - - Voluntary (wills)
      - Involuntary (Intestacy)
    - - Voluntary (gifts and sales)
      - Involuntary (adverse possession and foreclosure)
  - - - person dies without a will
        
        estate governed by state laws intestate statute (default rules)
    - - person dies with a will
        
        estate governed by the will
    - - intestacy
        
        scheme, status, and alteration
      - wills
        
        make, revoke, challenge, comprise, and construe
    - - probate estate will probate transfer by will or states intestacy statute on death
      - non-probate estate will non-probate transfer on death
        
        examples of non-probate estate: joint tenancy, tenancy by the entirety. POD and TOD accounts, revocable trusts, and life insurance policies paying to 3rd Party rather than decedents
- - - - May also include any codicil and testamentary instrument that:
        
        appoints executor;
        
        nominates guardian;
        
        revokes or revises another will; OR
        
        Negative will - document that explicitly excludes individuals or class from taking in intestacy
    - - making it;
      - revoking it;
      - challanging it;
      - comprising and constructing it
    - - testamentary capacity;
      - testamentary intent; and
      - the appropriate formalities
  - - - most states demand T be 18 or older
    - - T must be of sound mind
        
        SM determined at time of will execution
        
        SM means that, at time of will execution, T holds ability to understand:
        
        the nature, condition, and extent of T's property (the what)
        
        the nature of the depositions that T is making of their property (the why); AND
        
        the names of T's relationships of the natural objects of T's bounty (the who)
      - eccentricity, unusual opinions, or exhibited unique behaviors does not necessarily render T incapable of making a will
      - Low bar
      - an insane delusion - a belief with no basis in fact
        
        insane delusion does not automatically prove lack of "soundness of mind" required to will
        
        However, a gift in life or a will is invalid to the extent that it was the product of the insane delusion
        
        again, mere eccentricity is not ID
        
        Similary, a rational (or even irrational suspicion) holding some basis in fact is not an ID
  - - - Undue Influence
        
        (most frequent tested intent issue)
        
        UI is sufficient to void a will IF:
        
        contestant can prove wrongdoer exerted such influence over T they overcame T's (doner's) free will; and
        
        influence cause T (donor) to make a donative transfer the T would not otherwise have made
        
        Presumption of UI arises IF:
        
        alleged wrongdoer was in a confidential relationship with the donor; AND
        
        note difference: here alleged wrongdoer, must rebut the presumption, whereas above, contestant had burden to show wrongdoing
        
        CR: extends to all relationships where T trusts and has confidence alleged wrongdoer
        
        there were suspicious circumstance surrounding preparation, formulation, or execution of the will
        
        some relevant factors to consider:
        
        extent to which donor was susceptible to influence (mental and or physical weakness)
        
        Note - these are all intuitive
        
        extent to which wrongdoer participated in prep or procurement of thw will;
        
        did donor receive independent advice from other competent and disinterested advisor in preping will
        
        whether will was prepared in secrecy or in haste;
        
        whether donor's attitude toward others changed by reason of his relationship w/ alleged wrondoer
        
        whether there is a decided discrepancy between new and old wills
        
        whether there is continuity between new and old wills showing a settled intent in the deposition of their property; and
        
        whether deposition of property viewed by a rsnbl person would seem unnatural, unjust, or unfair
        
        If alleged wrongdoer rebuts presumption by clear and convincing evidence - burden shifts back to proponent of the will to show UI
        
        IF PROVEN
        
        UI will void the provisions (or whole will in necessary) of the will benefiting the person who exerted UI
        
        w/o more, a parent treating children uniquely, or leaving them out completely w/o explanation will not cause presumption of UI
      - Fraud: two types
        
        (1) In the execution
        
        fraud as to the nature of contents or writing itself
        
        fraud in the execution will invalidate the will
        
        (2) In the inducement
        
        fraud as to intrinsic facts that induces someone to take action that affects the distribution
        
        TEST:
        
        would T have made this gift had T known the truth?
        
        established upon proof that:
        
        a bene made a knowingly false representation to T;
        
        T thereafter made a different will than they would've absent the representation
        
        for purpose of inducing to draw a will in their favor; AND
        
        if fraud is alleged against one part - it may be reject that part, and admit the rest
        
        the legacy now void would fall into "the residue" clause of the will, if none, then through intestacy
        
        If entire will is tainted, all of the property will pass by intestacy
      - Mistake
        
        Two types
        
        In execution
        
        mistake as to the nature of the document
        
        will is invalid
        
        In the inducement
        
        mistake as to true facts that causes T to execute a will or will clause
        
        No affect on testamentary intent, thus not relief is granted
        
        Note: when mistake is made, there is little a court may do because the best evidence died along w/ T
        
        in very rare circumstances, where clear and convincing evidence of T's intent exists, a court may reform terms of a will
  - - - in writing
        
        any rsnbly permanent record is sufficient
      - signed
        
        by T or in T's name by another in T's conscious presence w/ T's direction
        
        Conscious presence includes w/in earshot
        
        assisted signatures are permitted - whether or not T requested one - provide T was the motivating force for the signature (signifying intent)
        
        Distinguish directed or guided signature, whereby someone grabs T's wrist and moves the the pen for T
        
        No requirement that:
        
        signature is T's formal name: it can be anything that indicates T's intent that the document is T's will or a mark be T's signature
        
        signature be in a specific place in the will: it can appear at the beginning of the doc. or on the back of the document
      - witnessed or arrested/acknowledged
        
        One of two requirements (witnessed or attested/ acknowledged) must be met, EITHER:
        
        signed by at least two individuals;
        
        each of whom signed w/in a rsnbl time after having witnessed:
        
        (1) the signing of the will;
        
        (2) T's acknowledgement of that signature; or
        
        (3) T's acknowledgement of the will
        
        Rsnbl Time: does not mean witnesses must sign before T's death
        
        Note: "contemporaneous acts" permits witnesses to sign before T when all are acting w/in the same event, act, or time frame
        
        No req that witnesses sign the will in each other's presence; each may sign it seperately w/in the requisite rsnbl time
        
        1 more item...
        
        OR acknowledged by the T before a notary public or other individual authorized by law to take acknowledgement
        
        this method does not require proper witnesses -
        
        A notary who is involved in the process of making a will self-proving (SPA), acts in a deferent role than here,
        
        where then notary is attesting to the will in lieu of or in addition to witness attestation
        
        No req that: T "publish" the document as T's will, that T request witnesses to sign, or that the witnesses sign in the presence of T or each other
    - - Policy reason: notwithstanding these "will formalities," the law favors wills
      - RULE: any attempt to make a will - even a defective or failed one - will be validated if the proponent of the doc proves by clear and convincing evidence that T intended the doc to constitute their will
        
        note CCE - highest standard of proof in civil law
    - - Rule: generally, any pieces of paper actually present at execution that are intended to be part of the will, will be part of the will
        
        i.e. will that contains multiple pages need not be signed by T and witnesses on each page
        
        No state requires each sheet of paper of multipage wills to be separately executed
  - - - Also think ROTC
        
        R.
        
        Recollect
        
        O.
        
        Observe
        
        T.
        
        Tell Truth
        
        C.
        
        Communicating
    - - (frequently tested topic)
      - an interested witness is a witness who is also a bene of the subject will
        
        Signing of an interested witness does not invalidate the will
        
        Rather:
        
        in some states it will "purge" the interested witness's share by treating that witness as having predeceased T
        
        In others states, the fact that a witness is interested is irrelevant
      - Under UPC - an interested witness is fine and both the will and gift to the interested witness is valid and safe
        
        UPC also allows an interested proxy is permissable - interested beneficiary signing of T's behalf
      - Note: Remember UI rule - Look for UI or its presumption
  - - - a self-proved will proves itself - in other word, it is deemed to satisfy all will execution reqs w/o need for testimony of any attesting witnesses immediately upon filing of the will, acknowledgements, and affidavit
        
        eases the process of probate - no need to recall potentially unavailable or hostile witnesses
        
        will not apply if there is evidence of fraud or forgery affecting acknowledgment of the affidavit
      - A will may be self proved if it is simultaneously executed + attested by acknowledgement of the T and affidavits of the attesting witnesses (the SPA), each made before an officer authorized to administer oaths and evidenced by the officer's certificate, under official seal (notary)
        
        (the self-proving affidavit - SPA)
        
        a paragraph saying what happened, that the witnesses acknowledge, and a notary notarizes
      - A will may also be self-proving at any time after its execution by acknwldgmnt of T and affidavits of witnesses, each made before notary who notorized
- - - - (handwritten) a holo will is one written by T, and traditionally, entirely in their own handwriting
      - to qualify as a valid will under UPC, only the material portions and signatures of the will must be in T's handwriting
        
        material portions:
        
        those distributing money and property
        
        T's testamentary capacity and intent are still required
        
        No witnesses needed
      - BE CAREFUL - fact that a will is in a handwritten will by someone other than T can still be a valid attested will
    - - Conditional wills are permitted; a will can be conditioned upon some event
  - - - provisions of he decedent's will stating material provisions of the K;
      - express reference in the decedent's will stating material provisions of the K; OR
      - a writing signed by the decedent evidencing the K
    - - 1 will 2 T's - with an agreement that when one dies, everything does to the other
        
        mere existence of these is insufficient to satisfy evidence of a K - and may be revoked at anytime
    - - 2 wills 2 testators (mirror wills) - with identical provisions to each other if they predecease - often spouses
  - - - as to the original will: a codicil republishes the will to it applies to - meaning the will is treated as if it were first written and executed at the date of the codicil
    - - especially when couple with the doctrine of incorporation by reference
  - - - in compliance w/ the law at the time and place of execution; OR
      - in compliance with the law of the place where at the time of execution or death, T is domiciled, has a residence, or is a national
      - in compliance w/ formalities or saved under "harmless error"
      - NOTE: under common law - if conflict of laws of the state between where will was executed and where T died - validity of will determined by state of T's domicile at death
- - - - Physical act;
        
        or performing a revocatory act on the will
        
        This include:
        
        burning, tearing, canceling, obliterating, or destroying the will of any part of it
        
        EVEN WHEN - the act taken touches any of the words in the will
        
        Key principal is that the physical act was committed w/ intent to revoke
        
        Valid if done by another in T's conscious presence and at T's direction
        
        Words written on a different, distinct doc cannot serve as revocation by cancelation
        
        On the original
      - Later valid will; OR
        
        executing a valid subsequent will that either expressly revokes whole or part of the will - or is simply inconsistent;
        
        later will can revoke all or part of a prior will
        
        Note: partial revocation is a codicil
        
        Revocation by later will can be express
        
        If no express revocation, a later will may still revoke prior will by inconsistency in whole or part
        
        T is presumed to have intended a later will to replace rather than supplement a previous will IF the later will makes a complete disposition of the T's estate
        
        Contrast:
        
        If later will does not fully dispose of T's estate, it will revoke the prior will only to the extent of the inconsistency
      - Divorce
        
        if T is divorced after making a will, all will provisions in favor of or relating to the now-ex spouse become innefective
        
        unless, it is apparent in the will that the provisions are intended to survive divorce
      - Note: burden of proof of revocation is on party seeking revocation
  - - - undoes revocation when said revocation was based on T's mistake of law or fact
  - - - once a will is validly revoked, it cannot be brought back to life
        
        exc: the will is restated, re-executed, republished, or other clear evidence of intent to revive
    - - revives a will, so if a codicil is made to a revoked will, it will generally incorporate and revive the revoked will as of the date of the codicil
  - - - If T signs a copy of a will, it becomes an executed copy and functions as an original will
      - Revocation of an executed copy is a perfectly effective revocation
    - - Unexecuted copies have not legal effect
      - the revocation of an unexecuted copy means nothing
- - - - Patent ambiguity: appear on the face of the instrument
      - Latent ambiguity: arises when the language of the will could benefit multiple parties, competing parties, or apply to different property due to lack of specificity
        
        Once ambiguity is patent or latent, is established, both direct and circumstantial evidence of donor's intent may be considered to resolve it
- - - - Facts of Independent significance
        
        A will may provide for designation of a bene or deposition by reference to some future unattested act occurring after the execution of the will
        
        So long as act or facts hold significance independent of an attempt to change a will
        
        i.e., "I leave my car to my spouse"
        
        every time you sell, replace, crash, or otherwise change cars, wife's deposition changes
        
        every time you remarry the beneficiary changes
        
        Ask, was this an independent act, or was T covertly trying to change the will?
        
        i.e., "all my household furnishings"
        
        Technically, residuary clauses are facts of independent significance, because they change throughout T's life
      - Incorporation by reference
        
        Once CL, now UPC doctrine permitting the inclusion by reference of unintegrated, unattested documents as part of the will IF:
        
        writing existed at will execution;
        
        Note - a will referencing an after written document, can still be IBR if T writes after writes a codicil - because of the doctrine of republication by codicil
        
        the will manifested intent to incorporate; AND
        
        the will describes writing sufficiently to permit identification
      - Personal Property List
        
        UPC permits a writing that lists decedent's personal
        and intended beneficiaries if the writing describes both with rsnbl certainty
        
        writing will dispose of property even if not properly attested to, so long as it is signed
        
        Writing can even come after the will is in existence
        
        contrast:
        
        IBR requires writing to predate the will
        
        real estate or real property CANNOT transfer this way, nor can money - personal property ok
      - UTATA
        
        Disposition of Inter Vivos Trusts - Under Uniform Testamentary Additions to Trust Act:
        
        if T makes a gift to a trust in existence at the time of decedant's death, that gift will be a valid disposition, even if the trust is created or altered/amended after the will was executed
        
        deposition of assets in a revocable trust is determined by the trust instrument
        
        Practically, not very different than a property list, but permits the disposition of all types of property
  - - - i.e., "the rest of my children" will cover children born after the time of execution as well as those born before
    - - property acquired by decedent after death may also be controlled by will, such as post-death bonuses
- - - - The amount of an ES is generally 50% of the value of the marital-property portion of the augmented estate
      - Right to elect survives even where the T specifically and purposely left the spouse out of the will
      - an election not exercised personally by SS may be exercised on their behalf by guardian, conservator, or agent under power of attorney
        
        but, SS must be alive when election is made
      - ES percentages are creatures of statutes, which can create, limit, and abolish them
      - Procedure For Election
        
        SS must make and election within the later of:
        
        9 months after decedent's death; or
        
        6 months after the probate of decedent's will
    - - SS entitled to 50% of the value of the marital portion of the augmented estate
        
        50%
        
        a constant - unlike AE, or MP
        
        augmented estate
        
        sum of all property, real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute:
        
        the decedent's new probate estate;
        
        the decedent's non-probate transfers to person other than the SS
        
        the decedent's non-probate transfers to the SS; AND
        
        the value for the SS's net assets at the decedent's death, plus SS's non-probate transfers to others
        
        Marital Portion
        
        UPC - amount of SS's elective share is calculated by applying a sliding scale percentage to the AE guided by idea that the longer the marriage, the higher the "marital property portion"
        
        Marriages of a few months generate a property portion of 3% of the AE
        
        50% of 3%(MP) is 1.5% of AE, While 50% of 100%(MP) is 50% of AE
        
        Marriage for 15 years or more generate a marital property portion of 100% of the AE
      - In satisfying the ES, the SS's, the decedent's probate, and non-probate transfers to the SS and the marital portion are applied first
        
        Policy: least disruptive to decedent's estate plan
        
        if this does not satisfy ES, the decedent's probate and non-probate transfer to others are proportionally liable to satisfy the balance
      - Supplemental Elective Shares
        
        a special feature for small estates
        
        designed to bring SS's assets up to at leas $75K, or as close as possible
      - Some case law
        
        permits SS's taking from revocable trusts because decedent could have revoked at will, they "kind of" continued to belong to decedent until death
    - - Right of election of a SS may be waived, wholly or partially, before or after marriage, by:
        
        written K;
        
        agreement;
        
        or waiver signed by SS
        
        Often called a prenuptial (and in some states, post-nups)
      - Decedent's transfers that were supported by adequate and full consideration are excluded from the AE, even if purchaser is a relative
  - - - the will indicates that the spouse was not inteded to take anything under the will; or
      - if inter vivos gifts are made to the spouse in satisfaction of the spouse's share
  - - - G.R. T intended to omit, they would not have forgotten a child then living born or adopted
    - - G.R. might have been genuinely forgotten to update the will, these kids can get something
        
        No child at time of execution: child entitled to intestate share
        
        exc:
        
        if T already left some or most, to that child's parent or gaurdian
        
        Or if the will suggests an intent not to leave anything to a potential child
        
        What if T had some kids before and deposited to some or all of them?
        
        any after born children may share in the amount, if born post execution of the will gifting to then existing kids
        
        NOTE: Republication by codicil may change the effect - omitted after born child may become omitted child in existence
        
        What if T had some kids before and devised to none of them?
        
        after born or omitted child still shares, just shares nothing lol
    - - Non-marital children should be able to take from mother and fathers estate, if they married, if the non-biological parent held child out as there own, or clear and convincing evidence of paternity
- - - - anyone who kills, or participates, either as co-conspirator or accessory, in the death of someone else
        
        UNLESS: it is an accident
        
        must be a felonious murder
        
        Treat slayer as predeceasing - gives their gift to their heirs or beneficiaries
        
        they cannot receive anything from the decedent in will or intestacy
      - JT with RoS - killing severs JT, and the surviving JT does not get RoS
      - Insurance: if killer is primary bene - it goes to contingent bene, treating slayer as prediceased
    - - Refusal to Support: desertion
        
        UPC requires seom definitive legal act in order to bar the SS
        
        Desertion or abandonment is insufficient
      - Effect of Divorce and Remarriage Upon the Wills
        
        A ex-spuse is no longer an SS
        
        all provisions of the will relating to the divorced spouse are ineffective unless it was apparent it would survive divorce
        
        This ends heirship rights at a minimum
        
        must be final decree of divorce
  - - - Proven by Clear and Convincing Evidence
      - If not, you're treated as predeceasing the decedant
    - - if each were beneficiaries/heir of each other, and they both die within 120 hours, we treat both as having predeceased
        
        meaning bequests, or takings to each other would be invalid
        
        and estate goes to next in line
        
        Policy:
        
        We don't want grieving families fighting over which spouse survived the longest under tragic circumstances to determine who should get the gifts
        
        unlikely that the spouses intended the gift to go to the beneficiaries heir instead of them
  - - - in writing or other record;
      - declare the disclaimer;
      - describe the interest or power disclsimed;
      - signed by the disclaiming party; AND
      - delivered (tp executor) or filed (or county records)
    - - would-be recipient has waived theri right to discliam
      - would-be recipient had already received and accepted the property
      - would-be disclaimed interest had already been assigned or encumbered
      - would-be declaimed interest has already been sold in a judicial sale
    - - disclaimer relates back to the date of the death of the decedent
      - because of relation back - disclaimant treated as having predeceased the T, even though declaimer made after death
        
        thus, disclaimer will accelerate the possession of subsequent interest
    - - to defeat creditors
        
        if you are treated as predeceased - it goes to your heir, you never get it, so creditor cannot touch it
      - tax purposes
      - to try to manipulate share
        
        Not permissable in most state, and the UPC
- - - - use of the term "my" usually indicates a specific gift
    - - if the fund is insufficient at death - that beneficiary can take from the general gifts
  - - - a specific bequest/gift/devise;
        
        NOT FOR ANY OTHER GIFT
      - when property specifically bequeathed or devised is no longer in the T's estate at death
      - EXC:
        
        conveyance of an incapacitated person's property
        
        ABE can be harsh, so courts will mitigate where the
        
        Non-Ademption Balance
        
        Three kinds
        
        Replacement Property
        
        property of like kind, quality, and character can replace, and bene can take that instead
      - Stocks
        
        how to tell if stock devises are general or specific - look for the work "my"
    - - When a bene takes a general gift or a residuary gift to a bene - but the T already gave bene a inter vivos gift
      - when will this prevent bene from taking
        
        If will provides for the deduction of the gift;
        
        the T declared in a contemporaneous writing that the gifts in satisfaction of the devise; or
        
        devisee acknowledged in any writing that the gift was in satisfaction of the devise
  - - - NOTE: a direction to pay "all debts and expenses" is too boilerplate to cover mortgages
  - - - property that would pass intestacy
      - residuary bequests
      - general bequests
      - demonstrative bequests
      - specific bequests
  - - - Classes generally closes at the time will becomes effective (T's death)
      - Courts will often, alternatively apply the rule of convenience which states:
        
        a class closes when any person is entitled to call for a share
  - - - A lapse in the body of the will falls into the residuary (if there is one, if not, intestacy)
      - A total lapse in the residuary of the will falls to intestacy
      - A partial lapse in the residuary falls to the other residuary takers
      - A lapse in a class gift falls to the other class member
    - - Under AL statute, a gift is saved if:
        
        the predeceasing beneficiary (PDB) is closely enough related to T; and
        
        PDB was survived by descendant who also survived the T, then those descendants will take the lapsed gift
        
        UNLESS the will explicitly states otherwise
    - - Lapse, and anti-lapse applies to class gifts in wills SO UPC requires:
        
        words of survivorship for class gifts must be explicit in stating that ant-lapse statutes should not apply