Wills Outline Fall 2024
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What is one acceptable method for reviving a revoked will in all states?

  • Re-executing the previously revoked will (correct)
  • Destroying the subsequent will
  • Delegating the decision to a probate judge
  • Creating a verbal agreement

    • Under UPC § 2-509, when can a previously revoked will be revived?

  • Only through formal re-execution
  • When a written declaration is made by the witness
  • When evident from the circumstances of the revocation (correct)
  • After a hearing in court regarding the will

    • What happens if a subsequent will is revoked by a physical act in some states?

  • The earlier will remains revoked unless formally revived (correct)
  • The previous will is considered null and void
  • The earlier will is automatically revived
  • The testator can no longer create a new will

    • Which of the following statements about DRR (Dependent Relative Revocation) is true?

    <p>DRR is not available if the second will is revoked by a third</p> Signup and view all the answers

    What standard of evidence is required to prove paternity under state law?

    <p>Clear and convincing evidence</p> Signup and view all the answers

    What is required for a valid contract to make a will in most states?

    <p>A signed writing in compliance with the statute of frauds</p> Signup and view all the answers

    Under what condition will a parent not inherit from a child according to UPC § 2-114?

    <p>Parental rights were terminated</p> Signup and view all the answers

    What is the consequence if a will does not comply with the terms of a will contract?

    <p>It can still be probated, but the contract beneficiary may sue</p> Signup and view all the answers

    What is the role of a guardian in the context of property management for a ward?

    <p>To manage property and receive fees for management</p> Signup and view all the answers

    In the case of will #1 revoked by will #2, and will #2 revoked by will #3, what happens to will #1?

    <p>Will #1 remains revoked unless will #3 indicates otherwise</p> Signup and view all the answers

    What clause indicates an intent to revive a previously revoked will?

    <p>A codicil stating the intent clearly</p> Signup and view all the answers

    What typically happens upon the death of a minor regarding conservatorship?

    <p>The conservatorship terminates when the minor reaches the age of majority</p> Signup and view all the answers

    Which statement accurately describes guardianship and conservatorship?

    <p>Both guardianship and conservatorship require court supervision</p> Signup and view all the answers

    What is the purpose of appointing a guardian ad litem?

    <p>To represent the interests of a minor or unborn person in litigation</p> Signup and view all the answers

    What does the Slayer Rule state?

    <p>A slayer can inherit only if the killing was unintentional or involuntary</p> Signup and view all the answers

    What distinguishes custodianship under UTMA and UGMA?

    <p>Custodianship is limited to small, modest gifts</p> Signup and view all the answers

    What is essential for a trust to be valid?

    <p>It must have a defined beneficiary.</p> Signup and view all the answers

    Which of the following statements regarding trust property is accurate?

    <p>Trust property must be identifiable.</p> Signup and view all the answers

    What happens if a trustee fails to exercise their power to select a beneficiary within a reasonable time?

    <p>The trust will be invalid due to indefinite beneficiaries.</p> Signup and view all the answers

    Which of the following is a function of trusteeship?

    <p>Safeguarding property.</p> Signup and view all the answers

    In what situation can a pet be a valid beneficiary in a trust?

    <p>If the trust is a statutory purpose trust.</p> Signup and view all the answers

    What is an honorary trust?

    <p>A trust where the purpose is unenforceable.</p> Signup and view all the answers

    Which of the following is NOT a requirement for a charitable trust?

    <p>It must have ascertainable beneficiaries.</p> Signup and view all the answers

    What distinguishes a trust from a debt agreement?

    <p>Title transfers to the trust in a trust arrangement.</p> Signup and view all the answers

    What is a key feature of a spendthrift trust?

    <p>Beneficiary cannot give away or sell their interest in the trust.</p> Signup and view all the answers

    Which exception to spendthrift trusts is accepted by the majority of states?

    <p>Claims for child support or alimony.</p> Signup and view all the answers

    How does the Uniform Trust Code (UTC) treat claims by tort victims against spendthrift trusts?

    <p>It rejects exceptions for tort claims.</p> Signup and view all the answers

    Which of the following creditors can typically reach a spendthrift trust?

    <p>A creditor who provides necessities.</p> Signup and view all the answers

    What is the implication of a self-settled asset protection trust?

    <p>Creditors of the settlor can reach the assets in the trust.</p> Signup and view all the answers

    Which of the following is true regarding a beneficiary's interest in a spendthrift trust?

    <p>The beneficiary can assign their interest after receiving it.</p> Signup and view all the answers

    What is commonly required for creditors to reach spendthrift trusts?

    <p>The creditor must be a provider of necessities.</p> Signup and view all the answers

    Which aspect of the spendthrift trusts is typically not allowed in the context of tort claims?

    <p>An exception for intentional torts.</p> Signup and view all the answers

    What is the role of a conservator in the context of managing property for an incapacitated person?

    <p>The conservator has broad powers to manage property and is subject to fiduciary duties.</p> Signup and view all the answers

    Which of the following describes a Durable Power of Attorney?

    <p>It remains effective during the incapacity of the principal.</p> Signup and view all the answers

    Which type of advanced directive specifies how one wants to be treated in end-of-life situations?

    <p>Instructional Objectives</p> Signup and view all the answers

    What is required for a Durable Power of Attorney to be considered valid in most states?

    <p>It must be notarized or signed by an attorney.</p> Signup and view all the answers

    What distinct feature does a 'springing' power of attorney possess?

    <p>It only becomes effective after a declared incapacity.</p> Signup and view all the answers

    Which statement about community property is true?

    <p>Property earned during marriage is considered community property.</p> Signup and view all the answers

    What is the primary purpose of a healthcare proxy?

    <p>To designate someone to make healthcare decisions for the patient.</p> Signup and view all the answers

    Which of the following is NOT true about conservatorship?

    <p>Conservators have limited powers and responsibilities.</p> Signup and view all the answers

    What must be proven to show that undue influence occurred?

    <p>The alleged wrongdoer had an opportunity and disposition to influence the donor.</p> Signup and view all the answers

    Which of the following is NOT considered evidence of undue influence?

    <p>The donor confirming their independent legal counsel.</p> Signup and view all the answers

    What shifts the burden of proof to the proponent in a case of presumed undue influence?

    <p>Confidential relationships and suspicious circumstances.</p> Signup and view all the answers

    In which situation is a caregiver presumed to have exercised undue influence?

    <p>When the caregiver receives a gift that exceeds what is considered modest.</p> Signup and view all the answers

    Which factor is NOT a valid consideration when assessing whether undue influence occurred?

    <p>The intent of the donor to change their will.</p> Signup and view all the answers

    What is indicated by circumstances deemed 'suspicious' in a bequest?

    <p>The donor's previous will showing starkly different dispositions.</p> Signup and view all the answers

    What establishes a 'confidential relationship' in the context of undue influence?

    <p>A relationship built on trust and reliance.</p> Signup and view all the answers

    What conditions apply if a lawyer drafts a will for a relative?

    <p>The lawyer must disclose the impact of potential conflict of interest.</p> Signup and view all the answers

    Study Notes

    Wills Outline Fall 2024

    • Freedom of Disposition: Property owners have nearly unrestricted rights to dispose of their property as they please. Property passes according to the decedent's wishes if reliably documented, or otherwise by default succession rules.

    • Limits:

      • Wealth transfer taxation
      • Surviving spouse forced to share
      • Rules protecting creditors
      • Rules against perpetuity
      • Capricious trusts
      • Alienation

    • Forced Succession:

      • Decedent's property may be confiscated by the state if the decedent's property rights terminate on death.

    • Incentive Trusts:

      • Shapira v. Union National Bank: A will conditioned on the marriage of a Jewish girl to a Jewish man was upheld as not against public policy.

    • Restatement 3rd of Trusts: Balances donor's freedom against social values and personal freedoms when creating trusts.

    • Posthumously Created Property Rights:

      • Shaw Family Archives Ltd. v. CMG Worldwide, Inc.: A testator may not devise property rights they don't possess at the time of their death.

    • Probate vs. Nonprobate Property:

      • Probate Property: Estate administered by a probate court. Property passes according to a will or by intestacy.
      • Nonprobate Property: Is a will substitute, a transfer outside of probate (e.g., inter vivos trust) passing according to the terms of the trust.

    Intestacy

    • Intestacy Statute: Aims to carry out a probable intent, typically favoring spouse and descendants over parents, and collateral kin.

    • Choice of Law:

      • Personal property: governed by the law of the state where the decedent was domiciled at death.
      • Real property: governed by the law of the state where the real property is located.

    Uniform Probate Code §2-101-105

    • Includes provisions regarding succession of property based on surviving spouse, descendants, parents, and other relatives.

    Collateral Kindred

    • Includes all persons related by blood to the decedent who are not descendants or ancestors.

    Simultaneous Death

    • UPC has a 120 hour rule.

    Unmarried Cohabitating Partners

    • Some states allow for equitable relief to cohabitating partners upon the death of one partner, based on contributions during cohabitation.

    Uniform Simultaneous Death Act

    • If no sufficient evidence of death order, both are presumed to have predeceased the other and property passes as if that was the order of death.

    Inheritance Rights of Adopted Children

    • Adopted children inherit from and through adoptive and biological parents, barring exceptions.

    Rights of Parents

    • Parents with terminated parental rights don't inherit from a child. A child dying before 18 and there is evidence of that parent trying to end parental rights.

    Advancements

    • Presumption that gifts to children during life are advancements, reducing their inheritance, unless proven otherwise.

    Will Authenticity/Execution

    • Attested Wills: At least two witnesses present when the testator signs the document, and both witnessing the signature, with a clause to that effect added in the will and signed by the witnesses showing their attestation.

    Holographic Wills

    • The will is written entirely in the testator's handwriting (signature and material provisions), and it must include testamentary intent.

    Will Revocation

    • Revocation by Writing: A new will with different (or inconsistent) provisions that shows an intent that the old will be revoked, a subsequent
    • Revocation by Physical Act: Destroying, altering, or canceling a will with the intent to revoke.
    • Revocation by Law: Changes in circumstances such as divorce, remarriage, birth, or death, can revoke a will (partial or complete).

    Components of a Will

    • Integration: Papers physically present with the will and intended to be part of the will.
    • Republication by Codicil: A valid codicil (amendment) to a will treats its date as the date of its making.
    • Incorporation by Reference: References to outside documents that existed at the time the will was made.

    Will Capacity

    • Mental Capacity: To understand the nature and effects of making a will. To understand the nature and extent of property assets, to identify beneficiaries, to understand and make a rational judgment about how to distribute assets.

    Undue Influence

    • A perpetrator exerted influence over a testator, causing them to make a transfer they wouldn't otherwise make.

    Duress

    • The use or threat of physical violence to cause a person to execute a will.

    Fraud

    • When a person intentionally misrepresents or hides facts that causes the transfer of a will.

    No-Contest Clauses

    • Clause in a will that prohibits beneficiaries from contesting its contents.

    Mistake and Ambiguous Language in Wills

    • Courts are reluctant to change language or correct errors in a will, unless the error is unambiguous, the nature and intended meaning can be determined, and there is clear evidence.

    Lapse

    • If a named beneficiary pre-deceases the testator, the gift lapses, and returns to the will's residue, unless a rule of anti-lapse applies.

    Anti-Lapse

    • Protects gifts to deceased persons - substitute surviving issue or heirs.

    Changes in Property After a Will’s Execution

    • Ademption: When specific property is no longer in the testator's estate.
    • Abatement: When property is not enough to cover all dispositions.

    Trusts

    • Testamentary Trust: Created within the framework of a will (takes effect at death).
    • Revocable/Irrevocable Trusts: Created during the settlor's lifetime.

    Trusts for Non-charitable Purposes/Honorary Trust:

    • A trust that is designed to be for the benefit of a non-human entity (a pet, e.g.).

    Charitable Trusts

    • A trust designed for charity or for the good of the community (has a broader purpose of impacting public good, rather than benefiting a specific person or an entity).

    Life Insurance, Retirement, and Disability Planning

    • Life Insurance: Policies naming a beneficiary upon death.
    • Retirement Plans: Pension and Defined Contribution Plans.
    • Planning for Incapacity: Conservatorship, Durable Power of Attorney, and Advanced Directives. 

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    Wills Outline Fall 2024 PDF

    Description

    Explore the key concepts of wills and trusts as outlined for Fall 2024. This quiz covers the freedom of disposition, limits on property transfer, and notable case law that influences estate planning. Test your understanding of forced succession, incentive trusts, and posthumous property rights.

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