Joint tenancy property.

Life insurance.

Contracts with payable-on-death provisions.

Interests in trusts.

Surviving Spouse

Kids

Parents of the Deceased

Grandparents, or descendants of grandparents (half to paternal, half to maternal)

Government

After the spouses share is set aside, children get the remainder to the exclusion of everyone else.

If a kid dies before the decedent, his children (descendants) represent the dead child and divide the child's share equally.

A will handwritten and signed by the Testator at the end (Some states will allow a signature anywhere in the will) where no attesting witnesses are required.

Kropp will say on the exam if holographic wills are allowed by the state.

Testator signs the will at the end.

Two witnesses who sign the will (are in the same room, so everybody sees everybody sign).

Witnesses must be disinterested (they don't get to take under the will).

18 years or Older.

Capable of knowing and understanding in a general way:

Nature/extent of his/her property.

Natural objects of his/her bounty.

Disposition that he/she is making of that property.

Has formed an orderly desire regarding disposition of that property.

A person suffering from insane delusion may still have the mental capacity to make a will but may be suffering from an insane delusion as to part of the will.

The rest of the will is valid, but that part of the will fails.

If the entire will is from insane delusion, the entire will fails.

1. The testator was susceptible to undue influence.

2. The influencer had motive.

3. The influencer had the opportunity.

4. The benefit is the result of the undue influence.

1. The testator is deceived by a misrepresentation.

2. The testator would not have done what he did without the misrepresentation.

3. Intent to deceive the testator and the purpose of influencing the will.

Strkes down part of a will or all of a will, depending on how much was influenced by fraud.

1. The wrongdoer threatened to perform or did perform a wronful act

2. That coerced the donor into making a donative transfer he otherwise would not have made.

Transfers compelled by duress are invalid.

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 sufficiently to permit its identification.

Any amendments to the referenced document made after the will is executed will not be incorporated, and if this lack of incorporation goes against the testator's intent, the document passes by intestacy.

A will is treated as re-executed (republished) at the date of the codicil, unless the effect of treating the codicil as a republication would be inconsistent with the testator's intent.

Only works with a prior vallidly executed will.

If a will is revoked by a second will, but a codicil republishes the first, the first will is valid and the second is revoked.

If the beneficiaries or property designations are identified by acts or events that have a lifetime motive and signficance apart from their effect under the will, the gift will be upheld.

The act must be unlikely to be manipulated: "Everything in my safe" works, but "Everything in my unlocked dresser drawer" is likely to be manipulated.

Extrinsic evidence is used.

Destroy by physical act: Burning, cutting up, writing revoked across the will.

Revoke in writing: New will says you revoke the old will, or you write a document that says you revoke the will.

By law: Divorce.

The testator destroys a will believing a new will is valid, but for some reason the will is invalid.

If you can show that both wills are dependent on each other (the testator would not have revoked the first if he knew the second was invalid), you can revive the first.

It's about the testator's intent, and you ask, what is better, reviving the first will or intestacy?

What was the testator's probable intent?

You show this through extrinsic evidence.

Ambiguities (wrong street, wrong number on the street, wrong name, etc.) get fixed with extrinsic evidence.

If a it was written as a mistake and not an ambiguity, it will not get fixed and the beneficiary is out of luck.

If a specific or general bequest fails, the devise (the bequest) falls into the residuary clause, meaning it goes to the residuary devisee.

If there is a complete failure of the residuary clause (such as the residuary devisee being a dog), you go to intestacy.

If there is a partial failure of the residuary clause, you either go to intestacy or honor the other half of the residuary clause, depending on jurisdiction.

If a devisee is of a certain relationship to the testator (specified in the statue) and the devisee dies before the testator, the devisee's issue (children/grandchildren) are substituted for the devisee, taking equally.

The alternative is treating the disposition as a class gift.

If the lapse statute and class gift don't work, the gift fails and you are back to the residuary clase fails section.

A devisee whom the beneficiary specifies should take the left over assets (residue).

When the testator gives a gift to a class (group) of people, such as "to my children."

If the beneficiary dies before a testator and devisee to a class gift, the beneficiaries share is distributed amongst the other gift beneficiaries.

Residuary devises

General devises

Specific devises reduced pro rata (in proportion.

A spouse is unhappy with what they got, so they elect against the will.

They get a predetermined amount which varies from state to state.

Works like the forced share, but comes into effect when the spouse is unintentionally omitted or forgotten.

For example, writing a will before getting married but forgetting to update it.

Contract law, not the law of wills, applies.

Many states require these contracts to be in writing (under the Statue of Frauds) since proof is an issue.

If the decedent breaks the contract, the contract beneficiary will either get the value of the property promised in the contract or the decdents successors will receive an order compelling them to transfer the property.

A single document made by a husband and wife leaving all their property and assets to each other.

The will also stipulates what will happen to those assets when the second person dies.

The joint will prevents the second person from changing his or her mind after the first , so this prevents a husband from trying to disinherit his stepkids.

A trust is the much better option, however.

When a testaor is able to influence behavior after death by placing limits on taking.

For example, saying someone cannot take unless they have graduated from college.

If the donor attempts to make a disposition that is prohibited by an overriding rule of law, like forcing someone to marry one of a particular religion, the disposition will be struck down.

Constructive

Honorary

Private Express

Charitable

Powers of Appointment

The settlor declares that he holds certain property in trust.

If the trust is to be funded with real property, it must be in writng (statute of frauds).

The holder of property in a trust on behalf of the beneficiary.

The trustee has a fiduciary duty.

A person can be named both trustee and beneficiary of a trust.

The person (or people) entitled to the benefit of any trust arrangement.

With the exception of charitable trusts, the beneficiary must be ascertainable.

The beneficiaries hold equitable interest in the trust.

1. Settlor expresses either orally or in writing to establish the trust.

2. A subject matter (property/funds).

3. A trustee.

4. A beneficiary.

A revocable Inter Vivos Private Express Trust is one where the settlor (creator of the trust) transfers property to the trustee (holder of the trust) pursuant to a writing in which the settlor retains the right to revoke, alter, or amend the trust during lifetime.

This trust is often used by the wealthy as a will substitute.

A trust that cannot be modified or terminated without the permission of the beneficiary.

The settlor is thus giving up all control and ownership over the trust assets.

This is primarily used for tax and estate purposes, as irrevocable trusts remove all incidents of ownership, effectively removing the assets from the settlors taxable estate.

A revocable trust in which the settlor names himself the trustee for the benefit of himself during lifetime, with the remainder to pass on to others at his death.

Often used to avoid probate.

Unlike an Inter Vivos Trust, a Testamentary Trust arises on the death of the testator (settlor) and is specified in his will.

A will may contain more than one testamentary trust and may address all or a portion of the estate.

Fiduciary Duty

Duty to Defend the Trust

Duty to Wisely Invest the Assets

Duty of loyalty

Duty not to Delegate

Duty not to Profit

Duty of Impatiality Among Beneficiaries

Duty not to be in Conflict of Interest

Duty to Act in Best Interest of Benefificaries

The trustee has discreton over payment (who gets it and in what amount).

So if the trust provides for the assets to be distributed among the settlor's children, the trustee has the discretion to choose how much each child gets.

No one beneficiary can be said to have title to assets prior to distribution, so there are tax advantages.

A discretionary trust must have ascertainable beneficiaries, so saying "I give my house in trust to anyone in Rhode Island that my trustee shall deem apropriate" will fail do to unascertainable beneficiaries.

A trust where the trustee has no discretion over payment of the trust's assets.

So if the settlor says the trustee has to give his beach cottage to his son upon death, the trustee has no discretionary power.

A trust in which the trustee has full authority to make decisions as to how the trust funds should be spent for the benefit of the beneficiary.

Creditors of the beneficiary thus cannot reach the funds of the trust as the trust funds are not under the beneficiary's control.

The language in a trust showing that the settlor wanted the trust to be spendthrift.

Absent this clause, the trust will not be treated as spendthrift.

If the settlor and all the beneficiaries consent, an irrevocable trust may be modified or terminated.

This is true even if the trust contains a spendthrift clause, and the trustee cannot object because he has no beneficial interest in the trust.

If the settlor is dead, even if all the beneficiaries consent, the trust cannot be terminated or modified until the time fixed for termination if termination or modification would be contrary to a material purpose of the settlor.

Pets, Graves, Prayers.

A trust in which there is no charitable purpose of private beneficiary to enforce the trust.

The trustee is thus bound by honor, not by law, to carry out the trust.

Must not violate the rule against perpetuities.

Prevents a person from putting qualifications/earmarks in his will/trust that will continue to control/affect the distribution of assets long after he has died.

An asset/property must vest before a life-in-being (person presently alive) plus 21 years at the creation of the will/trust.

An irrevocable trust established for charitable purposes either inter vivos or testamentary that must be more specific than "charitable organization."

No problem with:

Rule against perpetuities.

Unascertainable beneficiaries.

When the original purpose of the charitable trust becomes impossible or impractical, the court will amend the trust as close as possible to the original intention of the settlor.

For example, a charitable trust set-up to fight slavery.

Once slavery ended, the trust could be modified by the court to fight racist laws.

The ability of the trust settlor to select a person who will be given the authority to dispose of property under the trust.

This is a way of posponing and delgating the decision of who should receive a future interest in the trust, and allows for changing circumstances such as births, deaths, and marriages to be accounted for.

The donee can exercise the power of appointment to appoint to himself, his estate, his creditors, or creditors of his estate.

"I leave my videogame collection to be distributed as my son Andrew sees fit.

The donee may not appoint in favor of himself, his estate, his creditors, or the creditors of his estate, but instead can distribute among a class of people.

"I leave my cactus collection to my children, my wife Pat to choose which child gets which cactus."

The person(s) who take if the power of appointment isn't exercised.

Normally, there will be a default clause stating who the takers are.  If the takers are dead, it goes back to the donor, and you work your way down the family tree.

In a special power of appointment, since you are dealing with a class of people, typically the takers in default will be the objects (that class).

Property is left to a person in trust, but the will makes no mention of the trust, it is completely silent as to the trusts existence.

It is honored if you can find out about it.

A trust in a will that specifies the holder of property in trust but does not specify the terms of the trust or the beneficiary.

This trust is not honored (while a secret trust is if found out about), and what you get is a resulting trust, where it goes back to the heirs under the residuary clause.

A trust in which the settlor names himself the beneficiary.

Some states and off-shore countries offer asset-protection self-settled trusts that insulates trust-funds from the settlor's creditors.