Trust & Estates Master Document PDF

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This document is a multiple-choice exam preparation guide for a Trust & Estates course. It contains a large number of questions and answers.

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TRUST & ESTATES MASTER DOCUMENT: MULTIPLE CHOICE FINAL EXAM PREP A handwritten will is called a - Holographic will Doctrine requiring that the testator and witnesses actually see each other when signing the will - Line of sight doctrine This occurs when a tester is forced to make a will...

TRUST & ESTATES MASTER DOCUMENT: MULTIPLE CHOICE FINAL EXAM PREP A handwritten will is called a - Holographic will Doctrine requiring that the testator and witnesses actually see each other when signing the will - Line of sight doctrine This occurs when a tester is forced to make a will involuntarily - Durres Which amendment to the constitution ensures that the decedent has the right to transmit property after death - 5th amendment This is the statute that redirects a lapsed gift to the decedent of the predeceased bene ciary - Anti-lapse statue This how well a testator must understand the four elements to determine capacity in a will - General Understanding The rule which forces lapsed residuary devises into intestacy - No residue of the residue rule A devises to a bene ciary who is dead a the time of the execution of the will is - Void Term used to de ne a will that has not been updated to re ect changes in circumstances - Stale Will Words of survivorship can preclude the application of this statute - Anti-lapse Statute This occurs when testator is induced to make a will based upon the false pretenses of the wrongdoer - Fraud This term is used in will contests when testators su ers under false reality - Insane delusion A person who dies intestate dies without - A will Statutes that govern intestacy re ect the legislatures best guess as to - The decedents probable intent This table is used to determine relationship between family members - Consanguinity FL uses this system of representation to determine how ones descendants take shoes odf an estate in intestacy - Per Stirpes / English Per Stirpes This type of guardian exercise all of the rights of the person they are appointed for - Plenary Guardian Florida allows handwritten wills but requires two ___ to validate the will - Witnesses This is where FL requires a will to be signed - At the bottom of the will In FL this is the amount of an intestate souses share of the estate if the decent had children from another marriage - 50% fi fi fl ff fl fi FL allows creditors to take against these types of trusts after a settlors death - Self Settled Revokable Trusts In FL children and spouses of bene ciaries cannot make creditors claims against this type of trust - Discretionary Trust In FL children and spouses and children can make creditors claims against what kind of trust - Spendthrift Trust This person handles the administration of a will after the testators death - Executor This type of probate happens when the tester own property in a another state - Ancillary probate FL’s two types of probate - Formal Administration and Summary Administration At common law any lifetime gift paid to a bene ciary was presumed to have this e ect on the bene ciary share of the estate - Advancement The elective share is applicable in which situation - Testacy (A) has two children (B) and (C), (B) dies leaving 2 kids, (D) and (E). (A) dies intestate in FL, how big is (E)’s share of the estate - 1/4 Share The functions of probate include providing evidence of transfer of title, distributing property to bene ciaries and - Protecting creditors This person takes the rst share in all state’s intestacy laws - The spouse These rules generally prevent a bene ciary who killed a decedent from taking a share of the decedents estate - The Slayer Rule The elective share is in place to prevent ___ from happening - The spouse from being disinherited Having ___ attached to a bill means you do not need to call a will’s witnesses to court to validate the will - Self Proving a davit The UPC says that simultaneous death rules ar only voided if clear and invoicing evidence proves the survivor lived for ___ after the decedent - 120 hours This state’s law determines how a will is probated - The state where the decedent resided in Fl requires __ hours to pass between decedent and spouses deaths in order to avoid a simultaneous death provision - 0 hours The UPD uses this system of representation to determine intestacy shares for descendants - Per Capita at each generation In most states, a bene ciary who disclaims property is treated ___ - as if they predeceased the descendant In Florida, a child is protected from purposeful disinheritance - False ffi fi fi fi fi fi ff fi fi Intestacy favors this type of relationship when determining takers - Blood relationship Upon grantors, a revokable trust becomes - Irrevocable This is how a bene ciary who dies simultaneously with a decedent is treated - Predeceasing the decedent Inheritance laws in the US favor this persons rights - The decedents rights States vary on this aspect of the elective share - The percentage of the elective share This type of estate in used in FL to determine the amount of the elective share - Augmented estate In Florida, a souses elective share is - 30% In FL, a lifetime gift to a bene ciary is presumed to have this e ect on the bene ciary's share of the estate - No e ect This type of devise in a will abates rst in order to satisfy the rest of the devises - Residuary devises This type of devise abates last when the estate doesn’t have enough property to ful ll all excises - Speci c devises When the estate dissent have enough property to satisfy all of the testators devise’s this will happen - Abatement Transfers of $$ during a testers life to a bene ciary slated to receive a general devise in the will may be applied to the bene ciaries inheritance - Doctrine of Satisfaction Term used to refer to speci c devises that are no longer part of the testators estate as described in the will - Adoption by extinction The two methods of revoking a will are these - Implied and Explicit revocation This type of tryst creates a restraint on alienation of the bene ciaries inserts in order to protect the trust assets from creditors - Spendthrift trust This type of trust is created in a will - Testamentary trust This the e ect of divorce on a devise in a state will - The divorced spouse is treated as predeceasing the testator This type of trust gives the trustee the ability to determine how much the bene ciary needs and when it should be distributed - Discretionary trust This occurs when the sole trustee and sole bene ciary are the same person - Equitable title merges and the trust ends These are two types of powers of appointment - General and Non-General ff fi ff fi fi fi fi fi fi fi ff fi fi fi fi This type of devise conveys the portion of the estate not otherwise devised by the will - Residuary devise This power of appointment does not allow donees to appoint themselves or their estates as objects - Non-General power of appointment People who take appoint property when donee fails to exercise the power of appointment are referred to as this - Takers in default This the term forepeople whom donee is permitted to distribute appointive property - Objects The property the donor gives the donee a power of appointment over is referred to as this - Appointive property An addition executed to an already valid will is call this - A codicil A subsequently executed will with provisions that are inconsistent with a an existing will has this e ect - It will revoke the old will A trustee has this title in the trust property - Legal titile When a testator has sole control over a valid executed will and at the time of the testators death the will cannot be found, - It is presumed to be revoked A gift of $100K is this type of devise - General devise This is a reason why a trust may end - The purpose of the trust has been ful lled Which doctrine allows all or part of the revocation of a will to be considered ine ective if that revocation was based on a mistake - Dependent Relative Revocation This type of ambiguity is obvious on the face of the will - Patent ambiguity This type of ambiguity is only evident when the terms of the will are applied to the facts - Latent ambiguity This function of the formality of the Wills Act ensures that a testator understands precisely what he is doing by giving away property at death - Ritual/Cautionary Function At common law, in order to be incorporated by reference a writing must be in this state at the time of a will’s execution - The state of existence This is created when a 3rd party is given property to hold in trust for a bene ciary - Deed of trust Trustees have this duty to bene ciaries - Fiduciary This is the theory used by courts to reinstate 1st will revoked in the mistaken belief the 2nd will is valid - Dependent Relative Revovation (T)’s will lease her ring to (B). (T) executes a new will leaving the ring to (C). (T) just performed this type of revocation. - Revocation by inconsistency fi fi fi ff ff A trust will not fail for a lack of a - Trustee Requiring this particular formality when executing a will is meant to protect a testator from undue in uence or duress - Requiring witnesses True/False: Lost wills can be probated - True FL allows extrinsic evidence to prove these kinds of ambiguities - Latent and Patent ambiguities In Florida, an interest must vest within ___ years in order to avoid the rule against perpetuities - 1000 years FL uses this standard when determining if a will’s execution complies with the Wills Act - Strict Compliance If a court allows a copy of a will to be entered into probate, that court follows this standard of compliance with the Wills Act - Harmless Error When a court changes a will to adhere to the testators probable intent, the court applies this doctrine - Doctrine of reformation Estate Tax - A tax levied on the transferor's estate that is paid before any transfers are made Posthumously Created Property Rights - A property right that did not exist during the decedent's life Non-claim Statutes - Requires creditors to le claims within a speci ed time period. Claims led thereafter are barred. The 2 types of Non-claim statutes - Bars claims not led within a relatively short period after notice is given that probate proceedings have commenced, generally two to six months; or - Bars claims not led within a longer period after the decedent’s death, generally one to ve years Ancillary Jurisdiction - When the probate estate includes real property that is located in another jurisdiction. Primary/Domiciliary Jurisdiction - When the probate estate includes real property that is located within the same jurisdiction as the decedents domicile. Incentive Trust - A conditional bequest Policy Considerations regarding the disposition of property - Authenticity - Voluntariness - Meaning of last wishes Policy Considerations for limiting distribution of property - Taxation - Public Policy Concerns Is there a right to Inherit? - There is no right to inherit fi fi fi fi fi fi fl Three types of Incentive Trusts - Education Trusts - Productive Trusts - Moral Incentives Trusts Moral Incentives Trusts - Sets conditions that encourages the bene ciaries moral or religious outlook to promote a particular way of living Productive Trusts - Sets conditions that encourages the bene ciaries to have a productive career Education Trusts - Sets conditions that encourages the bene ciaries to pursue an education The right to transmit property is Constitutionally protected? - True The right to receive property is Constitutionally protected? - False Where in the Constitution is the right to transit property protected? - The 5th Amendment Residuary Clause (in a will) - Outlines what should happen to any property that has not been addressed in your documents or assigned to a bene ciary. What set of laws is used when interpreting a will - When interpreting a will you must use the law of the jurisdiction the Decedent was domiciled Testator (T) - A person who has made a will Non-probative Property - Property that has an automatic bene ciary on it. Examples of Non-probative Property - Intervivos Trust - Life Insurance - POD and TOD Contracts - Joint Tenancy Intervivos Trust - A trust made during the decedents life. Property put in an Inter Vivos trust during the decedent's life passes in accordance with the terms of the trust, avoiding probate administration. Two types of Life Insurance - Whole Life Insurance and Term Life Insurance Life Insurance - The proceeds of a life insurance policy on the decedent's life are paid by the insurance company to the bene ciary named in the insurance contract. Functions of Probate - Provide evidence of transfer of title to the new owners; - Protect creditors by providing a procedure for payment of debts, and - Distribute the decedent's property to those intended after the decedent's creditors are paid Pay-on-Death (POD) and Transfer-on-Death (TOD) Contracts - (non-probative) - The account custodian will distribute the property at the decedent's death to the named bene ciary. fi fi fi fi fi fi fi When is probate necessary? - When D dies intestate (* with more than a "small" estate) - When D has a will. - When D's non-probate transfer runs into problems. - When D has debts. What do Testators do? - Devise real property to Devisees - Bequeath personal property to Legatees Intestate Decedents - Real property "descends to heirs” - Personal property is "distributed to next-of-kin” Intestate - To die without a will Personal Representative (Probate): A Fiduciary who: - Collects and inventories property - Manages and protects the property during administration of estate - Processes claims of creditors - Files tax returns - Distributes property to those entitled Two types of Personal Representatives: - Executor (Testate) - Administrator (Intestate) Executor: The person nominated by the will to administer the estate. - If the Executor cant/won't do it. The executor will be selected through the majority of the bene ciaries - A devisee under the will, if there are multiple, court may select its preferred devisee Administrator: Executor can't/won't serve or the Decedent died intestate - The surviving spouse. - The person selected by a majority in interest of the heirs. - The heir nearest in degree. If more than one applies, the court may select the one best quali ed. Three types of estate administration in FL - Formal Admin - Summary Admin - Disposition of Personal Property w/out Admin Homestead Exemption (FL) - If the decedent owns a house and has either a spouse or minor children. The decent cannot give the house to anyone else but their spouse. - If decedent has no spouse and multiple children and one is a minor. Decedent must devise the house to all the children. Types of Property Ownership - Sole Ownership - Joint-Ownership - POD/TOD Exception to the Privity Rule (FL) - A drafting attorney is liable to be sued by an intended bene ciary, and as such, an identi ed bene ciary for errors and negligence that occurred through the drafting of the will. Intestacy - Decedent leaves no will. The probate estate passes by intestacy fi fi fi fi fi Partial Intestacy - Decedent leaves a will that disposes of only part of the probate estate; the part of the probate estate not disposed of by the will passes by intestacy. Testacy - Decedent leaves a will that provides for the disposition of her property at death. No Spouse and No Heirs? - Estate goes to parents Half-Bloods - A sibling whom only has blood from one of your parents. - In Florida a half-blood is given a half share. 1/2 of what full blood child would get. Disinheritance by Negative Will - A negative will is created by way of an (express disinheritance provision). The barred heir is treated as if he disclaimed his share, which means he is treated as having predeceased the decedent. Express Disinheritance Provision (Negative Will) - The testator must specify what he wants to happen with the estate or no changes will occur to the will. A child born out of wedlock can inherit from that father if any of the following are true: - The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. - The paternity of the father is established by an adjudication before or after the death of the father. - The paternity of the father is acknowledged in writing by the father. Children born after the death of a parent are non-marital children - True Advancements (FL Rule) - Property that the decedent gave during lifetime to an heir is treated as an advancement against the heir's share of the estate only if declared in a contemporaneous (at the same time) writing by the decedent or acknowledged in writing by the heir. Advancement/Hotchpot - Any lifetime gift given to an heir should be counted against that heir's share in the estate. What is an equitable remedy courts may apply to avoid unjust enrichment? - Constructive Trust What is a Constructive Trust? - When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the bene cial interest, equity converts him into a trustee. What is an elective share? - Every state forces you to leave a speci c amount of your estate to your spouse (amount varies by state) What is the executive share percentage in FL? - 30% Elective shares are applicable to who? - The surviving spouse of a person who dies domiciled in FL if there is a will that distributes less than 30% of the estate to the surviving spouse. Is the elective share part of the probate or non-probate estate? - The elective share is part of both the probate and non-probate estate. Where is personal property probated? - Where the decedent is domiciled at death What must occur for an advancement to be proper? - The advancement must be in a contemporaneous writing fi fi In FL, a half-blood relative will receive how much of an estate? - 1/2 of a typical share Courts are concerned with what when valuing a decedents last wishes? - Authenticity, Voluntariness, and the meaning of the decedents last words A trust made in a wil is a ___ - Testamentary trust Are there limits to what a decedent can do with their estate? - Yes American estate law is di erent because - Kids are not entitled to their parents property What are the functions of probate? - Child transfer, protection for creditors, and enforcement of the meaning of the dependent In FL, who is excluded from taking a share of the intestate estate? - Step children 5th Amend ensures that testators can do what? - Testators can leave their property to whomever they choose Conscious Presence Test (UPC) - The testator, through sight, hearing, or general consciousness of events, comprehends that the witness is signing The Purpose of the Wills Act - Authenticity, Voluntariness, and the Meaning of the Will Holographic Will (Not Allowed in FL) - Handwritten will that is signed by the testator in their own hand. (No witnesses present) Nuncupative Will (Not Allowed in FL) - An oral will A valid Will under the UPC must be: - must be in writing - signed by the testator - and either: Signed by at least two individuals; or acknowledged by the testator before a notary public. What are the 4 Functions of Formalities - Ritual/Cautionary Function - Evidentiary Function - Protective Function - Channeling Function Ritual/Cautionary Function - The performance of some ceremony for the purpose of impressing the transferor with the signi cance of his statements. Evidentiary Function - Supply satisfactory evidence to the court. Protective Function - Prophylactic purpose of safeguarding the testator Channeling Function - Standardization of form simpli es administration Attestation Clause - A provision at the end of a will, that is signed by witnesses and recites the formalities required to make the will e ective ff fi fi ff A testator's signature must be: - Signed at the end of the will; or The testator's name must be subscribed at the end of the will by someone in the testator's pretense under the testator's direction Subscription - Anything added to the will after the Testator name has been subscribed is not valid unless the Testator subscribes his signature at the end of the new additions. Any requirement that an instrument be signed may be satis ed by an electronic signature. (T/F) - True Any requirement that individuals sign an instrument in the presence of one another may be satis ed by witnesses being present and electronically signing by means of audio-video communication technology. (T/F) - True Any Will, other than a Holographic/Nuncupative will executed by a nonresident of FL, is valid in FL if its valid under the laws of the state where the will was executed. (T/F) - True Line of sight Test (FL Rule) - The testator does not actually have to see the witnesses sign but must be able to see the were the testator to look. What quali es as "Presence" in Will execution? - Line of sight Test (FL Rule) - Conscious Presence Test (UPC) Conscious Presence Test (UPC) - The testator, through sight, hearing, or general consciousness of events, comprehends that the witness is signing. FL has a purging statute. (T/F) - False What is a Purging Statute - A law that removes a gift to an Interested Witness in a will, which prevents the will from being denied probate. Interested Witness - An interested witness is one who is also a bene ciary under the will In FL you can use an Interested witness to authenticate a will. (T/F) - False Sweetheart Will - When a couple drafts individual wills giving everything to each other Codicil - An addition or supplement that explains, modi es, or revokes a will or part of a will If the underlying Will is revoked, the subsequent _____ and _____ are also revoked. - Codicil's and Duplicate Original Wills Joint-Will - Functions as a contract which cannot be changed/modi ed/amended Wills are intended to be ____ - Ambulatory (Changed over time) Conditional Will - Used when an individual would like a will to become e ective only if some event occurs Pre-Printed Will - A pre-printed will form, lled in, completed by hand, and signed with witnesses fi fi fi fi ff fi fi fi If a Pre-Printed will is completed without witnesses present. It will be treated as a _________ and is barred in Florida. - Holographic Will (Not Allowed in FL) Notarized Will (Not Allowed in FL) - Must be signed by the tester or by some other in the testator’s conscious presences by the testator's direction; and either: signed by two individuals: or acknowledged by the testator before a notary public. Strict Compliance - (FL) - Wills must be executed in strict compliance with all the formal requirements of the applicable Wills Act. Even if the court believes the will to be legitimate and intended by the deceased, they will not admit the will. May a Will be enforced that is validly executed in all respects but the signature of the testator as required by the be revised by a court to make it compliant under Strict Compliance? - No, even though a will has been validly executed in all other respects and there is no question of fraud, the will must comply with the requirement that it bear the signature of the testator. Substantial Compliance - Admits technically invalid Wills as valid if the noncomplying Will expresses the decedent's intent and su ciently approximates the required formalities so as to serve the purposes thereof. If the testators of mutual sweetheart wills, mistakenly sign each other's will, may the court read the wills together in order admit the Wills into probate under Substantial Compliance? - Yes, if the sweetheart wills contain identical reciprocal testamentary schemes, the fact that the testators signed one another's wills does not bar probate. Instead, the wills may be read together in order to enforce the testators' intended testamentary scheme. Harmless Error - Allows a document that does not meet the full legal requirements of a will to be considered valid and admitted to probate as long decedent intended the document or writing to constitute the decedent's nal will If a Will has not been properly witnessed, may it be considered valid if there is clear and convincing evidence that the testator intended it to be his or her nal will under Harmless Error? - Yes, if a will has not been properly witnessed, it may be considered valid if there is clear and convincing evidence that the testator intended it to be his or her nal will. Can a Will that the decedent did not review and give nal assent to be admitted to probate under Harmless Error? - No, a Draft Will cannot be admitted to probate absent clear and convincing evidence that the decedent reviewed the Draft Will and intended it to be his or her nal Will. A Will can be revoked by executing a subsequent will that revokes the previous will or part expressly or by inconsistency. (T/F) - True A Will can be revoked if the testator performed a revocatory act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. (T/F) - True Express Revocation of a Will - This can be done through a formal written statement, a new will that explicitly states it revokes previous wills, or by physically destroying the original will (e.g., tearing it up or burning it). Implied Revocation of a Will - Occurs when a testator (the person who made the will) takes actions that suggest they no longer intend for the will to be valid, without explicitly stating so. If you revoke an original Will what happens to any subsequent Duplicates of the original Will? - All subsequent Duplicates of the original Will are therefore revoked. If a will is last in possession of the testator and cannot be found after the testator's death, it is presumed to be _____ - Purposely revoked along with all existing Duplicate Originals. A lost will that is presumed to be revoked can be rebutted by a ______ - a preponderance of the evidence shows that the will was not revoked but instead lost by the testator. fi fi fi fi fi ffi Lost Will - The contents of a lost but unrevoked will can be proved by a photocopy, a digital copy, the drafter's notes or recollections, or by other clear and convincing evidence Partial Revocation by a Physical Act (Not allowed in FL) - Occurs when a testator intentionally alters a portion of a will without revoking the entire document. This can happen through actions like crossing out certain provisions, adding new text, or other physical alterations. Dependent Relative Revocation - If a testator undertakes to revoke her will upon a mistaken assumption of law or fact, under the doctrine of dependent relative revocation (DRR) the revocation is ine ective if the testator would not have revoked the will but for the mistaken belief. Revival of Revoked Wills (Not allowed in FL) - T executes will 1. Subsequently, T executes will 2, which expressly revokes will 1 or does so by inconsistency. Later, T revokes will 2, commonly by physical act. If the doctrine of revival applies, the previously revoked will 1 is valid (Revived) If a gift made in a will to a spouse and then the marriage is dissolved. The spouse will be treated as predeceasing the testator and the gift will be ______ - Invalid Components of a Will - Integration, Incorporation by Reference, and Republication by Codicil Integration - Wills are often written on more than one sheet of paper, all papers that are present at the time of execution and are intended to be part of the will are treated as part of the will. Incorporation by Reference - Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing su ciently to permit its identi cation. Republication by Codicil - A validly executed will is treated as re-executed (i.e., republished) as of the date of the Codicil Exceptions To Incorporation By Reference - Lists disposing of tangible personal property and Acts of Independent Signi cance Incorporation By Reference: Lists disposing of tangible personal property. - Writing must be signed and must describe the items and devisees with reasonable certainty. - Need not be in existence at time of the will - May be altered after initial preparation - If more than one exists and there are inconsistencies, the most recent one wins. Incorporation By Reference: Acts of Independent Signi cance - A testator can make a gift or disposition that depends on a non-testamentary event or act (something that occurs outside of the will) that is independently signi cant. Which function of formality is import w/ witness signature on a will? - The Protective Function Trustees have a ____ duty - Fiduciary Purging Statutes apply to the share(s) of _____ - Interested witnesses Which type of Will is not allowed in FL? - Holographic Will What is the standard for a testator apprehending a witness’s signature on a will? - Conscious Presence Test fi ffi ff fi fi fi In FL, a valid Will requires ____ witnesses - 2 witnesses What type of signature is not valid on a Will? - A typed signature is not valid on a Will Where is the best place for a testator to keep their Will? - Their attorneys o ce When a court changes the terms of a Will to match the testator’s intent? - Reformation When a court reforms a Will, it does what? - It corrects the Will to match the intent of the testator 2 Types of Court review of Wills: - Strict Compliance & Harmless Error You can (potentially) revoke a Will by making a ____ - New Will Harmless Error requires ____ that (T) wanted it in his Will - Clear & Convincing Evidence When a Will is last in (T)’s possession, (T) dies and the Will cannot be found, the Will is ____? - Presumed to be revoked A Will is conserved to be ____? - Ambulatory A Will can be revoked at the direction of the ____? - Testator A lost will can ____ - Have its content proven by its witnesses Which level of evidence is required to prove that a Will is not revoked? - A preponderance of evidence A child born after a Will has been created is a ____? - Pretermitted Child Pretermitted children are eligible to get what share of their parent’s estate? - The intestate share _____ is used to identify presence in a Will execution in FL? - Line of Sight Rule Duress - A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made. What happens when a bene ciary of a presently executed will prevents the testator from revoking that will and executing a new will in favor of another bene ciary by duress. - The property devised under that will to the wrongful bene ciary is held in constructive trust for the intended bene ciaries of the unexecuted will. Gifts to Lawyer or Lawyer's Family - A lawyer is prohibited from soliciting any gift from a client, including a testamentary gift, or preparing on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift unless the lawyer or other recipient of the gift is related to the client. fi ffi fi fi fi If the e ectuation of a gift to their lawyer requires preparing a legal instrument such as a will or conveyance , the client should have the detached advice of another independent lawyer and the lawyer should advise the client to seek advice of independent counsel. (T/F) - True A no-contest clause is a will is not enforceable in FL. (T/F) - True Where challengers of a will have shown that a bene ciary of the will had the opportunity and motive to unduly in uence the testator's will, must the challengers also prove that the bene ciary substituted his wishes for the testator's preferred testamentary plan? - Yes, challengers of a will must prove that the will, as written, re ects that the bene ciary's wishes were substituted for the wishes of the testator. May the conduct of a named bene ciary in a will amount to undue in uence even without proof of speci c acts of the bene ciary at the time the will was executed? - The conduct of a named bene ciary in a will may amount to undue in uence even without proof of speci c acts of the bene ciary at the time the will was executed. Whether to overcome the presumption of undue in uence where a testator leaves her estate to a person with whom she has a Con dential relationship must the attorney drafting the will have counseled testator regarding disposition of her estate? - Yes, a presumption of undue in uence will be overcome by independent advice/counsel of an uninvolved attorney if that advice/counsel addresses testator's distribution of the estate to the person with whom the testator has a con dential relationship. A duciary who bene ts in a transaction with the person for whom he is a duciary bears the burden of establishing that the transaction did not constitute Undue In uence. (T/F) - True What quali es as a Con dential Relationship with regard to Undue In uence? - A duciary, reliant, and/or dominant-subservient relationship. What quali es as a Suspicious Circumstance with regard to Undue In uence? - A unnatural disposition, lack of independent advice, a will produced in secrecy or haste, or a sudden change in the donor’s attitude. Under In uence is presumed when there is a ____ - Suspicious circumstance and a Con dential relationship To prove Undue In uence you must show that: (1) the donor was susceptible to undue in uence, (2) the alleged wrongdoer had an opportunity to exert undue in uence, (3) the alleged wrongdoer had a disposition to exert undue in uence, and (4) there was a result appearing to be the e ect of undue in uence. Undue In uence - A donative transfer is procured by undue in uence if the wrongdoer exerted such in uence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made. FL Insane Delusion Rule - Challenger must show that the Insane Delusion had a direct impact on the distribution of the estate and that the will would have been di erent if the delusion hadn't existed. Can a will be held invalid if a testator was su ering from insane delusions at the time of executing the will, but the delusions didn’t impact the distribution of his estate and the testator was otherwise of sound mind? - No, unless there is a causal relationship between the testator’s insane delusions and the distribution of the estate, or the testator otherwise lacked a sound mind, the will cannot be held invalid. Can a will drafted under the in uence of a decedents insane delusion be held valid? - No, where a testator was insane at the time of executing the will and the distribution of the estate under that will was the product of testator's insanity, the will is invalid. Insane Delusion - A false conception of reality to which the testator adheres to against all evidence and reason to the contrary. A will constructed under a testators insane delusion will be held invalid. ff fi fi ff fl fl fi fi fl fi fi fl fl fi fl fi fi fl ff fl ff fi fl fi fl fl fl fl fl fl fl fl fi fi fl fi fi fi fl fi fi fi Test for judge determining if the testator lacked capacity to make the will. - Whether a reasonable jury would have reached the same conclusion as the Judge. Can a party challenge a testator's testamentary capacity by showing that the testator may have been su ering from Alzheimer’s disease after the time of executing the will? - No, a showing that the testator may have been su ering from Alzheimer's, without showing how the disease prevented the testator from having a rational desire regarding the disposition of her property, is insu cient to revoke a will for lack of testamentary capacity. Can a few isolated acts of abnormal behavior can satisfactorily rebut an inference of testamentary capacity? - No, a testator is presumed sane, particularly when two witnesses have signed the will. This is because such witnesses are obligated to assess the sanity of the testator before signing the will themselves. MENTAL CAPACITY (4-Part Test): The testator must be capable of knowing and understanding in a general way (1) the nature and extent of his or her property, (2) the natural objects of his or her bounty, and (3) the disposition that he or she is making of that property, and (4) must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. What constitutes a will contest in probate? - A will contest in probate is when you have a valid will that is o ered for probate but is challenged under Undue In uence or Mental Capacity of the testator. Will Contests - An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator. What standard is required to demonstrate that there is a competence/undue in uence issue with the will? - You need to prove it through a preponderance of evidence A will is ____ if the execution is procured by fraud, duress, mistake, or undue in uence. (FL Rule) - Void If the a will, or any part thereof, is procured by _____ , such revocation is void. (FLRule) - fraud, duress, mistake, or undue in uence FL Abatement Prioritization (1) Property passing by intestacy (2) Property devised to the residuary devisee or devisees (3) Property not speci cally or demonstratively devised (4) Property speci cally or demonstratively devised Abatement - The reduction or decrease in the value of gifts or bequests in a will when the estate does not have su cient assets to satisfy all of the debts, expenses, and speci c devises made in the will. Ademption is valid when: (1) The will provides for deduction of the lifetime gift, (2) The testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or (3) The devisee acknowledges in writing that the gift is in Ademption by Satisfaction - Occurs when a testator gives a bene ciary an asset or gift during their lifetime that is intended to ful ll or satisfy a speci c devise mentioned in their will. Antilapse Statute - Prevents gifts in a will from failing (or "lapsing") if a bene ciary dies before the testator. The Antilapse Statute allows the deceased bene ciary's descendants (usually children or other close relatives) to inherit the gift, unless the will explicitly states otherwise. Antilapse Statute (FL Rule) - In FL words of survivorship are enough to block a Antilapse Statute. (T states that W must survive T to obtain the gift) fi ff fi fi fi fl fi ff fi ff ffi fl fl fi ffi ff fl fi What quali es as an indication of a contrary intent su cient to block an Antilapse statute? - Words of survivorship in a devise or appointment to an individual, such as "if he survives me," or to "my surviving children”. Class Gift - A gift made to a group of bene ciaries who share a common characteristic, such as "my children" or "my grandchildren," where the individuals in the group may uctuate (e.g., new members born or existing members passing away) before the distribution. What is required for a devise to be de ned as a class gift? - The number of bene ciaries and the size of the shares must be uncertain, depending on the number of class bene ciaries surviving at the time of the testator's death. No Residue of a Residue Rule - If a residuary bene ciary (who is to receive the remainder of an estate) dies before the testator, their share does not pass to the other residuary bene ciaries but instead is treated as intestate property. What happens to a Residuary Devise that has lapsed? - The gift will go will be distributed to other residuary heirs or through intestacy unless the relevant state follows the No Residue of a Residue Rule. Residuary Devise - A gift in a will that distributes the residue (or remainder) of an estate to a bene ciary or bene ciaries. If residuary devise lapses, heirs of the testator take by intestacy. If only a share lapses, no-residue-of-a-residue rule. Residue - The portion of a deceased person's estate that remains after all speci c gifts, debts, taxes, and expenses have been paid or distributed. What happens to a Speci c/General devise that has lapsed? - The devise will fall into the residue. General Devise - A gift in a will that provides for a certain amount or type of property but does not specify a particular item or asset. Speci c Devise - A gift in a will that refers to a particular, identi able asset or piece of property that the testator (the person making the will) wants to leave to a speci c bene ciary. Where property Speci cally Devised in a will is no longer in the estate of the testator at the time of death due to the act of an attorney that was not known or assented to by the testator, is the devise adeemed (cancelled)? - No, where a speci c devise is removed from an estate by the act of an attorney-in-fact that was not known or assented to by the testator, the devise is not adeemed (cancelled), to the extent that identi able proceeds remain in the possession of the estate. Lapsed Devise - When a gift or bequest made in a will fails because the intended bene ciary dies before the testator Void Devise - If devisee is already dead or otherwise an ineligible taker, the devise is void and the common law rules of lapse apply. Last Devise - The nal gift or bequest made by a testator (the person who writes the will) in their will. Latent Ambiguity - Ambiguity that manifests itself only when the terms of a will are applied to the facts. Patent Ambiguity - Ambiguity that is evident from the face of the will FL Rule regarding the use of evidence is resolving ambiguity: - Extrinsic evidence can be used to determine what the testator meant by the words used. Three types of Latent Ambiguity: - Equivocation, Personal Usage, and No Exact Fit fi fi fi fi fi fi fi fi fi fi fi fl fi fi fi ffi fi fi fi fi fi fi Equivocation (Latent Ambiguity) - When two or more persons or things t the description exactly (e.g., a devise "to my niece Alicia," when in fact the testator has two nieces named Alicia). Personal Usage (Latent Ambiguity) - If extrinsic evidence shows that a testator habitually used a term in an idiosyncratic manner, the evidence is admissible to show that the testator used that term in accordance with his personal usage rather than its ordinary meaning. No Exact Fit (Latent Ambiguity) - A description in a will that does not exactly t any person or thing. Ambiguity - Testimony as to a testator's intention in using certain language in her will may not be admitted to prove the meaning of the language unless the language is ambiguous and susceptible to di erent meanings. The two approaches to a Mistake in a will. - Plain Meaning Rule and the No Reformation Rule Plain Meaning Rule (Mistake) - Court will only follow the plain meaning of the testators words in the will. No Reformation Rule (Mistake) - Mistakes of testators cannot be corrected. Omissions cannot be supplied. Language cannot be modi ed to meet unforeseen changes in conditions. Mistake (FL Rule) - FL allows courts to correct a mistake with clear and convincing extrinsic evidence of what the testator's intention was. Mutual Wills - Also called reciprocal or mirror-image wills, are separate wills of two persons that contain mirror-image provisions. The mere fact that the provisions of two wills mirror each other is insu cient to show an intent to make the provisions of the wills irrevocable. (T/F) - True Abatement happens when? - When the estate does not have su cient assets to satisfy all of the debts, expenses, and speci c devises made in the Will. A Speci c Devise that has lapsed will go to: - The devise will fall into the residue When a Class Gift lapses it goes to: - The other remaining members of the class An Antilapse statute does what? - Prevents gifts in a will from lapsing if a bene ciary dies before the testator by allowing the deceased bene ciary’s descendants to inherit the gift, unless the will explicitly states otherwise. A General Devise is a ____ - A gift in a will that refers to a particular, identi able asset or piece of property but does not specify a particular item or asset (money) A Speci c Devise is a ____ - A gift in a will that refers to a particular, identi able asset or piece of property that the testator wants to leave to a speci c bene ciary Ademption by Extinction - When a Speci c Devise of property in a Will cannot be ful lled because the property no longer belongs to the testator at the time of death Ademption by Extinction applies to _____ Devises - Speci c Devises fi fi fi fi ffi fi fi fi fi fi ff fi ffi fi fi fi fi fi What is the No-Residue of The-Residue Rule? - If a residuary bene ciary (who is to receive the remainder of an estate_ dies before the testator, their share does not pass to the other residuary bene ciaries but instead is treated as intestate property Does FL follow the Np Residue of The-Residue Rule? - No A “gift to my kids” is a _____ - Class Gift What is Ademption by Satisfaction - When a testator gives a bene ciary an asset or gift during their lifetime that is intended to ful ll or satisfy a Speci c Devise, mentioned in their will. The Doctrine of Ademption by Satisfaction is similar to _____ - The Doctrine of Advancement A testator needs to have a _____ of the elements of capacity to sign a will - General Understanding When a testers Will is overcome by force it is referred to as _____ - Duress Does a testator need to have a general understanding of the laws of intestacy - No, a testator need not have a general understanding of he laws if intestacy A diagnosis of mental illness is ____ to prove (T) su ered from Insane Delusion - Not Required If both Suspicious Circumstances and a Con dential Relationship are present _____ - A presumption of Undue In uence will be presumed A Settlor is a: - The Trustor or Donor Trustee - Holds the property in legal title, has Duties and responsibilities, No bene ts, and Stipend Bene ciary of a Trust - Usually has no control over the management, Can sue the trustee if mismanaged, Grantee/Donee Inter Vivos Trust (Non-probate) - A revokable or non-revokable trust that is created through a Declaration of Trust or a Deed of Trust during the lifetime of the settlor. Testamentary Trust (Probate) - A non-revokable trust created in a will that begins upon the death the testator Four Functions of Trusteeship - Custodial, Administrative, Investment, and Distribution Custodial Function of Trusteeship - Taking custody of the trust property and properly safeguarding it Administrative Function of Trusteeship - Accounting and record keeping as well as making tax and other required lings Investment Function of Trusteeship - Reviewing the trust assets and making and implementing a prudent investment program Distribution Function of Trusteeship - Making distributions of income or principal to the bene ciaries fi fi fi fl fi fi ff fi fi fi fi fi Three circumstances where a Trust can end: (1) If the instructions of the grantor are completed. (2) If the property is exhausted. (3) When legal and equitable title merge (when the only trustee is also the bene ciary) Creation of a Trust requires the following: (1) Intent by the settlor to create a trust; (2) ascertainable bene ciaries who can enforce the trust; (3) speci c property, the res, to be held in trust; and (4) if the trust is testamentary or is to hold land, then to satisfy the Wills Act or Statute of Frauds the trust must be in writing. A trust will never fail for failing to appoint a trustee. - If you don't appoint a trustee the Court will appoint one. Where property was transferred to an individual to be held for the bene t of another, does a trust arise? - Yes, the transfer of property with the intent to vest the bene cial ownership of the property in a third person gives rise to a trust and imposes on the trustee duties. Two circumstances where a Trustee can be removed from the trust. - A court could relieve you of your trustee duties or The bene ciaries through agreement could relieve you of your trustee duties. If a person declares his intention to make a donation but does not expressly state his intention to hold the property in trust for the intended donee, does the donor hold the property in trust for the intended donee? - No, a person who declares their intention to make a donation does not hold the property in trust for the intended donee unless that person expressly declares that he intends to be a trustee. Is a donor's promise to make payments and bind his estate to continue making the payments after his death a declaration of trust that binds the estate? - No, unless a donor expressly identi es property as being held in trust for the purpose of making promised payments, a trust does not arise from the promise to bind the donor's estate to make such payments. Trusts for Non-charitable Purposes - Honorary Trusts and Statutory Purpose Trust Whether a valid Trust exists where a bequest directs that the assets held in trust be distributed at the trustees' discretion among members of a generally de ned class of bene ciaries? - No, a valid Trust does not arise unless the trust is made for the bene t of de nite and ascertainable bene ciaries and is to be distributed in speci c proportions. A Resulting Trust is an equitable reversionary interest that arises in two situations: (1) if an express trust fails or makes an incomplete disposition, or (2) if one person pays the purchase price for property and causes title to the property to be taken in the name of another person who is not a natural object of the purchaser's bounty FL Rule Against Perpetuities - Limits the time that property can be held in trust up to 1000 yrs Honory Trusts - The transferee is not obligate to carry out settlor's purpose, If transferee declines, he holds the property as a Resulting Trust and the property reverts to settlor or settlor's successors. Statutory Purpose Trusts (FL Rule) - A trust for pets, animals, or other non-charitable purpose Oral Trusts - An oral trust and its terms may be established only by clear and convincing evidence fi fi fi fi fi fi fi fi fi fi fi fi fi Whether property transferred during the settlor's lifetime with the orally stated intention that the transferee hold the property for the bene t of another person creates a valid Oral Trust? - Yes, if a settlor transfers property during his lifetime and orally states his intention that the transferee hold the property for the bene t of a designated bene ciary, a valid Oral Trust will be created. Semisecret Trust (Invalid) - A trust that arise out of a will, speci cally when a testator indicates in the will that certain property is to be held in trust but does not disclose the identity of the bene ciaries or the terms of the trust. Elements of Semisecret Trust (1) Intent to create trust appears on face of will (2) Terms are unstated (3) Extrinsic evidence not needed to prevent unjust enrichment of trustee (4) The trust is invalid, not enforceable Whether extrinsic evidence can be used to prove the terms of an Semisecret Trust and save it from failing for inde niteness where the will devises property in trust but the terms of the trust are communicated outside of the will? - No, Extrinsic evidence may not be used to prove the terms of a Semisecret Trust and save it from failing for inde niteness. Secret Trust - A Trust that arises when a testator leaves property to someone in their will with the understanding, privately communicated outside the will that the person receiving the trustee will hold it for the bene t of another person. What the Element of a Secret Trust - The devise is absolute on face - Extrinsic evidence may be admitted to prevent unjust enrichment of promisor/trustee - The Court will impose a Constructive Trust on trustee/promisor Charitable Trusts - A Trust made for the public good (to a speci c group of ascertainable bene ciaries) not to any one individual. Doctrine of Cypres - Allows courts to modify the terms of a Charitable Trust when the original purpose of the donor or testator becomes impossible, impracticable, or illegal to ful ll. Who can enforce a Charitable Trust - The grantor, The bene ciary, or The State bene ciary Mixed Purpose Trust - A trust that combines both charitable purposes and non-charitable purposes. Part of the Trust's assets are designated to be used for charitable objectives while the other part is meant for non-charitable purposes. A 3rd party is entitled to rely on the assertion that the duciary agent is acting on behalf of the best interests of the trustee. (T/F) - True There is no duty for a 3rd party to inquire into the responsibilities/duty of the trustee (T/F) - True Whether the purchase of property from the executor of an estate by his wife, without leave of the court, is illegal and void. - Yes, under the No Further Inquiry Rule a trustee, cannot purchase from himself without leave of the court and the same limitation is imposed on a purchase by his wife. Can a duciary be sued for a breach of duty? - Yes, a duciary can be sued for breaching their duciary duties. Duty of Loyalty (Trustee) - A trustee must administer the trust solely in the interests of the bene ciary. No Further Inquiry Rule - Prohibits a trustee from engaging in transactions that could create a con ict of interest, and if a trustee does engage in such a transaction, the court will automatically presume it to be invalid. fi fi fi fi fi fi fi fi fi fi fi fi fi fl fi fi fi fi fi Exceptions to the No Further Inquiry Rule - If settlor authorized the deal - If all the bene ciaries consent after full disclosure - If the Court gives judicial approval to the deal Duty of Prudence (Trustee) - Requires the trustee to manage the trust with the care, skill, and caution that a reasonable person with ordinary prudence would use. Whether a trustee who is directed under the terms of a trust to release assets in his discretion as necessary for the support of the bene ciary must inquire into the needs of the bene ciary in order to determine the appropriate distributions to be made? - Yes, a trustee who directed by the trust to use his discretion in determining the amount to distribute for the support of the bene ciary must inquire into the needs of the bene ciary to determine the appropriate distributions to be made. Pre-Need Guardian (FL) - A legal arrangement that allows an individual to pre-select a person to serve as their guardian if they later become unable to make decisions for themselves due to incapacity. Established through a formal document often led with the court to ensure that the chosen guardian has legal priority in the event guardianship is needed. Durable Power of Attorney (Intended to last though incapacity) - Creates a relationship in which an agent is given a written authorization to act on behalf of a principal. An agent under a power of attorney, traditionally called an attorney-in-fact, can be granted the power to do almost anything for a principal.’ Whether an attorney-in-fact is authorized to create a trust on behalf of the principal where the language of the power of attorney indicates the principal intended the attorney in fact to have this authority? - Yes, a attorney-in-fact has the authority to create a trust on behalf of the principal if the power of attorney indicates that the principal intended the attorney-in-fact to have such authority. Springing Durable Power of Attorney (Not allowed in FL) - Become e ective upon the conclusion of a stated event/action. When you sign a power of attorney _____ - It becomes e ective immediately Special Power of Attorney - Creates a relationship in which an agent is given a written authorization to act on a limited behalf of a principal General Power of Attorney - Creates a relationship in which an agent is given a written authorization to act broadly on behalf of a principal. Advance Directives - Legal documents that advance direction of health care for an identi ed individual. Two types of Advance Directives - Healthcare Power of Attorney and Living Will Healthcare Power of Attorney - Appoints an agent to make health decisions on your behalf when you are incapacitated. Living Will - Speci es how one wants to be treated in end-of-life situations or in the event of incapacity. Trustees have a ____ duty to bene ciaries - Fiduciary Trusts end in all circumstances except when ____ - The trustee dies A deed for a trust is when a ____ - When a 3rd party holds property for bene ciary fi fi ff ff fi fi fi fi fi fi fi fi ____ requires a trust to be in writing - A trust for real property - A testamentary trust Charitable Trusts are required to have ____ bene ciaries - Non-ascertainable When it comes to Charitable Trusts the FL rule against perpetuities ____ - Does not apply Courts can ____ the purpose of a Charitable Trust (Doctrine of Cypres) - change The person acting on behalf of another under Power of Attorney is called an ____ - Agent Inter Vivos trust are presumed to be ______ - Revokable Any indication of intent to amend or revoke a trust is valid, if there is _______ - clear and convincing evidence of such Two types of Alienation - Voluntary Alienation and Involuntary Alienation Voluntary Alienation - The intentional transfer of property ownership or interest by the trustor or trustee, typically through methods like sale, gift, or deed. Involuntary Alienation - The transfer of property without the Trustor's or Trustees consent, often due to legal requirements like foreclosure or a court order. Discretionary Trusts - A type of trust where the trustee has the authority to decide how, when, and to whom the trust's income or assets are distributed among the bene ciaries. Pure Discretionary Trust - The trustee has absolute discretion over distributions to the bene ciary and the creditor(s) of a bene ciary have no recourse against bene ciary's interest in trust. Support Trust - Trustee is required to make distributions as necessary for bene ciary's needs. Insulates the trust property from some but not all of the bene ciary's creditors (child, spouses, and suppliers of necessities). Discretionary Support Trust - Trustee has absolute discretion over distributions to the bene ciary as deemed necessary for bene ciary's needs. Hamilton Order - (Discretionary Trusts) - The creditor can obtain an order requiring that, if any distributions are to be made to or for the bene t of the bene ciary, the creditor shall be paid rst. Spendthrift Trust - Trustee is required to make distributions as necessary for bene ciary's needs. Insulates the trust property from some but not all of the bene ciary's creditors (child, spouses, and suppliers of necessities). In most States a child or a spouse can force money from a Support Trust. (T/F) - True In a spendthrift trust, the trust creator (or settlor) limits the bene ciary's access to trust funds, generally by _____ - giving the trustee full discretion over distributions for the bene ciary's bene t fi fi fi fi fi fi fi fi fi fi fi fi fi fi fi fi fi Exceptions to Spendthrift provision (1) A bene ciary's child, spouse, or former spouse who has a judgment or court order against the bene ciary for support or maintenance. (2) A judgment creditor who has provided services for the protection of a bene ciary's interest in the trust. (3) A claim of this state or the United States to the extent a law of this state or a federal law so provides. Whether a trust that speci ed that the son could receive bene ts, but restricted his right to alienate or assign his interest in the trust property is valid? - Yes, the settlor of a trust has the right to impose restrictions on a bene ciary's access to trust assets, which prevents creditors from claiming these assets to satisfy the bene ciary's personal debts. Whether a tort creditor satisfy may her claim from a Spendthrift Trust of which the tortfeasor is a bene ciary, if the bene ciary is not the settlor and the assets of the trust were not fraudulently transferred? - No, unless the bene ciary of a trust containing a spendthrift provision is also the settlor or the assets were fraudulently transferred to the trust, creditors may not reach the bene ciary's interest in the trust. Whether a spendthrift trust provision can prevent an ex-spouse from accessing a bene ciary's trust assets to satisfy unpaid child support obligations? - No, spendthrift provisions in trusts do not protect trust assets from claims for unpaid child support. What are the Bene ts of Powers of Appointment? - Flexibility, Tax Avoidance, and Asset Protection Flexibility (Bene ts of Powers of Appointment) - Postpone and delegate decisions about who will receive future distributions of trust property Tax Avoidance (Bene ts of Powers of Appointment) - Can be structured to avoid estate or gift tax when exercised Asset Protection (Bene ts of Powers of Appointment) - Can be structured to avoid claims by creditors of the power holder (Powers of Appointment) - Donor - Creates the power (Powers of Appointment) - Donee - Holds the power (Actually receives the property) (Powers of Appointment) - Objects - Persons in whose favor the power may be exercised. (Potentially could receive the property) (Powers of Appointment) - Appointee - Person in whose favor the power is exercised. (Powers of Appointment) - Takers in default of appointment - Persons who take if the power is not exercised (Powers of Appointment) - General Power - A power that is exercisable in favor of the donee, his estate, his creditors, or the creditors of his estate. (Powers of Appointment) - Non-general power - Any power that is not a general power Under General Power a donee can give the property to themselves. (T/F) - True To exercise a power of appointment: (1) the donee must manifest an intent to exercise the power; (2) the manner of expression must satisfy any formal requirements imposed by the donor; and (3) the appointment must be a permissible exercise of the power fi fi fi fi fi fi fi fi fi fi fi fi fi fi fi fi A donee's manifestation of intent to exercise a power of appointment must satisfy: (1) the nature of the instrument required for exercise, and (2) whether the donee must make a speci c reference to the power (FL Rule) Power of Appointment - Anytime you exercise power of appointment it must be done in writing Power of appointment during life is done through a ______ - Deed Power of appointment at the time of death is done through a _____ - Will Whether a creditor may reach assets that are subject to a general power of appointment if the holder of the power of appointment has never exercised his right to reach those assets? - No, creditors may not reach property that is subject to a general power of appointment if that power has not been exercised A Residuary clause does not presumptively exercise a general or non-general power of appointment. (T/F) - True Speci c Reference Requirement (FL Rule) (1) A power holder's substantial compliance with a formal requirement of appointment imposed in a governing instrument by the donor, is su cient if the power holder knows of and intends to exercise the power; and (2) the power holder's manner of attempted exercise does not impair a material purpose of the donor in imposing the requirement. If a trust requires a donee to speci cally reference the trust in order to exercise a testamentary power of appointment, must the donee's will reference both the trust and the powers of appointment to exercise the power? - Yes, if a trust requires a donee to speci cally reference the trust in order to exercise a testamentary power of appointment, the donee's will must, at minimum, reference the trust and the powers of appointment to exercise the power. Whether the legal de nition of a technical term in a trust instrument should be used where the settlor does not use the term in a di erent sense. - Yes, the legal de nition of a technical term in a trust instrument should be used unless the settlor obviously uses the term in a di erent sense Exclusive General Power of Appointment - Donee can devise property to object they want should they exercise the power of appointment. Non-exclusive General Power of Appointment - Donee must devise property to every object should they exercise the power of appointment. Failure to Exercise a General Power of Appointment - The property goes to takers in default or back to the donors estate. Failure to Exercise a Non-General Power of Appointment - The property goes to takers in default or the Court may appoint the property to every object. Disclaimer - A donee who disclaims their power is treated as never having acquired the power in the rst place. Release - A donee who acquired a power may release it in whole or part, and in a manner that reduces or limits the objects unless the donor did not intent the power to be releasable. Self-Settled Trust - A trust created by the grantor for the grantor's own bene t. ffi fi fi fi fi fi fi fi fi ff ff Whether a trust is an attempted testamentary disposition if the bene ciary who receives the assets of the trust after the settlor’s death also receives a present interest in the trust during the settlor's lifetime and the extent of the settlor's control over the trust is not consistent with absolute ownership. - No, a trust is not an attempted testamentary disposition if the bene ciary who receives the assets of the trust after the settlor’s death also receives a present interest in the trust during the settlor's lifetime and the extent of the settlor's control over the trust is not consistent with absolute ownership Whether the trustee of a revocable trust owes a duty to remainder bene ciaries. - No, the trustee of a revocable trust does not owe a duty to remainder bene ciaries While a revocable trust is revocable, the trustee only owes a duty to the settlor. (T/F) - True Any indication of intent to amend or revoke a trust is valid, if there is ______ - clear and convincing evidence of such Where a settlor of a trust retains the power to amend and revoke the trust or power to control the principal and income during his lifetime, may his creditors reach the assets of the trust after his death to the extent that the assets of his estate are insu cient to pay his debts. - Yes, where a settlor of a trust retains the power to amend and revoke the trust or power to control the principal and income during his lifetime, his creditors may reach the assets of the trust after his death to the extent that the assets of his estate are insu cient to pay his debts. Whether an insured party may change the bene ciary of a life insurance policy by will. - No, an insured party may only change the bene ciary of a life insurance policy in the manner set out in the policy, any designation of an alternate bene ciary by will is ine ective. Whether when a joint bank account is created with funds belonging to one person, a gift of the funds to the other person is presumed? - Yes, where a joint bank account is created with funds belonging to one person, a gift of the funds to the other person is presumed and the presumption may only be rebutted by clear and convincing evidence. HEMS Creditors - Health, Education, Maintenance, and Support Ascertainable Standard Exception - If a power of appointment is limited by HEMS, it is not treated as a general power of appointment. Spendthrift Trusts can be broken in FL by ____ - Spouses and Kids A POD account is a ____ transfer - Non-probate Trustees can be sured by ___ in a bene ciary trust - Bene ciaries Creditors can only seek to attach payments to a trust before a bene ciary receives them in a - Bene ciary Trust There are ____ creditors whose claims can be enforced against a support trust - No creditors In FL, Spendthrift Trusts are _____ - Permitted under FL law What kind of trust can creditors take easily from after a grantor’s death? - Self-Settled Revocable Trust fi fi fi ff fi fi fi fi fi fi fi fi ffi ffi

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