Wills Outline Fall 2024
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Questions and Answers

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 (B)</p> Signup and view all the answers

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

<p>Clear and convincing evidence (B)</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 (B)</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 (A)</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 (B)</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 (B)</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 (A)</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 (A)</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 (A)</p> Signup and view all the answers

Which statement accurately describes guardianship and conservatorship?

<p>Both guardianship and conservatorship require court supervision (D)</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 (B)</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 (A)</p> Signup and view all the answers

What distinguishes custodianship under UTMA and UGMA?

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

What is essential for a trust to be valid?

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

Which of the following statements regarding trust property is accurate?

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

Which of the following is a function of trusteeship?

<p>Safeguarding property. (C)</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. (B)</p> Signup and view all the answers

What is an honorary trust?

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

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

<p>A creditor who provides necessities. (B)</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. (C)</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. (C)</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. (C)</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. (A)</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. (C)</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. (A)</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 (D)</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. (B)</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. (A)</p> Signup and view all the answers

Which statement about community property is true?

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

Which of the following is NOT true about conservatorship?

<p>Conservators have limited powers and responsibilities. (C)</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. (B)</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. (C)</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. (D)</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. (B)</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. (A)</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. (D)</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. (C)</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. (A)</p> Signup and view all the answers

Flashcards

Clear and Convincing Evidence

A higher standard of proof than a 'preponderance of evidence', often used in paternity cases and determining parental rights.

Advancement

A gift given by a parent to a child during their lifetime, which can be used to reduce the child's inheritance from the parent's estate.

Guardianship

Court-ordered arrangement where an individual (guardian) oversees the care and well-being of a minor (ward).

Guardianship of Property

A guardian manages the property of a minor, receiving rents and fees while seeking court approval for actions.

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Conservatorship

A conservator acts as a trustee, managing a minor's property with investment power, subject to court appointment and supervision.

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Custodianship

A custodian holds property for a minor's benefit under UTMA/UGMA, with fiduciary responsibilities similar to a trustee.

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Trusteeship

A trustee manages property for a beneficiary, offers flexibility in possession and distribution based on the donor's intention.

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Slayer Rule

A legal principle that prevents an individual from inheriting from a victim they unlawfully killed, unless the killing was unintentional or involuntary.

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Revival of Revoked Will

A process where a previously revoked will becomes valid again.

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Methods of Revival

Two main ways to revive a revoked will: re-execution or a codicil indicating intent to revive.

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UPC § 2-509

A statute that allows for revival of a will if the revocation of the subsequent will shows the testator's intent to make the earlier will effective.

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Revocation by Physical Act

Destroying a will by physical act can revive a previously revoked will in some states, but not all.

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DRR (Doctrine of Revival)

A legal principle that applies when a revoked will cannot be revived, but the testator intended the earlier will to be effective.

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Will Contracts

Agreements to make a will, which are subject to contract law.

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Statute of Frauds for Will Contracts

Most states require a signed writing for a will contract to be enforceable.

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UPC § 2-514

A statute that allows for valid will contracts with a signed writing and consideration, without any attestation requirement.

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Undue Influence

Wrongful persuasion that overcomes a donor's free will, causing them to make a gift they wouldn't otherwise make.

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Burden of Proof for Undue Influence

The person challenging the gift (contestant) must prove that the donor's free will was overcome.

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Circumstantial Evidence of Undue Influence

Evidence that suggests undue influence, even if there's no direct proof.

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Susceptibility to Undue Influence

A donor is susceptible if they're easily manipulated, vulnerable, or dependent.

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Opportunity to Exert Undue Influence

The alleged wrongdoer had the chance to influence the donor, like being alone with them or having access to their affairs.

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Disposition to Exert Undue Influence

The alleged wrongdoer had a motive or inclination to influence the donor, like wanting a larger share of the inheritance.

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Presumption of Undue Influence

A legal assumption that undue influence occurred when a confidential relationship exists and suspicious circumstances are present.

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Confidential Relationship in Undue Influence

A relationship based on trust or reliance, like a caregiver or attorney.

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Durable Power of Attorney

A document that gives someone the power to act on your behalf financially, even if you become incapacitated. This power remains effective until your death.

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Springing Power of Attorney

A power of attorney that becomes effective only upon the principal's incapacity, requiring confirmation of incapacity before activation.

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Advanced Directive

A legal document that states your wishes about refusing or terminating medical treatment, or designates someone to make such decisions for you.

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Instructional Objectives (Living Will)

A part of an Advanced Directive that specifies how you want to be treated in end-of-life situations or incompetence.

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Proxy Directives (Healthcare Proxy)

Another part of an Advanced Directive that designates someone to make healthcare decisions on your behalf.

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Community Property

Property acquired or earned during marriage, which is owned equally by both spouses in community property states.

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Surrogate or Proxy Designation

Allows family members or close friends to make healthcare decisions for someone who can't make them themselves.

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Trust Creation: Beneficiary Principle

A trust is valid only if it has a defined beneficiary, or is a charitable trust, a trust for animal care, or a trust for a noncharitable purpose as defined by law.

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Trust Property: What's Allowed?

Trust property can be any transferable interest in any type of property. It must be specifically identified, and future profits cannot be held in trust.

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Trustee's Power to Select Beneficiaries

A trustee can be given the power to select beneficiaries from an indefinite class within a reasonable time. If not exercised, the trust may fail.

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Bifurcated Ownership: Trustee vs. Beneficiaries

In a trust, the trustee holds legal title to the property, while the beneficiaries have equitable ownership. This means the trustee manages the property, but benefits go to the beneficiaries.

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Four Functions of Trusteeship

Trustees have four important functions: custodial (safeguarding), administrative (accounting etc.), investment (managing assets), and distribution (paying out to beneficiaries).

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Trusts for Noncharitable Purposes: Honorary Trusts

If a transferee declines to carry out a non-charitable purpose specified in a trust, the property reverts to the settlor or their successors, unless the purpose is charitable or has ascertainable beneficiaries.

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Trusts for Noncharitable Purposes: Statutory Purpose Trusts

These trusts are allowed for pets or other non-charitable purposes. The court can reduce excessive trust property and appoint a person to enforce the trust.

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Trusts for Noncharitable Purposes: Pet Trusts

Since pets are not legal persons, they cannot be beneficiaries and therefore cannot sue. However, statutory purpose trusts allow for pet trusts, with the court enforcing the trust's terms.

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Spendthrift Trust

A trust that restricts the beneficiary's ability to access or transfer their interest, typically to protect them from their own financial mismanagement.

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Spendthrift Provision

A clause in a trust agreement that prevents the beneficiary from assigning their interest to creditors or voluntarily alienating it, protecting it from creditors.

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Exceptions to Spendthrift Provisions

Circumstances where creditors can access a beneficiary's interest in a spendthrift trust, even though the provision typically limits their access.

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Creditors Entitled to Access Spendthrift Trusts

Certain categories of creditors, such as those providing necessities, child support, or alimony, may be able to access a beneficiary's interest in a spendthrift trust, even with the provision in place.

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Self-Settled Asset Protection Trust

A trust where the grantor is also the beneficiary, designed to shield assets from creditors while maintaining control over them, but often challenged in several states.

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Restraint on Alienation

A legal restriction that prevents someone from selling or giving away their property, often used in spendthrift trusts to protect beneficiaries' interests.

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Medicaid and IRS

Government entities that are often granted exceptions to spendthrift provisions, allowing them to access a beneficiary's assets in certain circumstances.

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Child Support and Alimony

Financial obligations associated with children and spouses that may override spendthrift provisions, giving creditors access to protected funds.

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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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