Wills and Trusts

• if only 1 child or heirs of 1 child, 1/2 interest
• two children (child and other descendent) 1/3
• if no children and survived by parent 1/2
• if no surviving relatives then all of the share

• 1 Child: $30K plus 1/2 balance
• 2+ children: $30K plus 1/3 balance
• 1+ parent: $50K plus 1/2 balance
• no survivors: all

• treated as natural child of adoptive parent for inheritance
• removed from natural family unless marriage
• adopted family may inherit from adopted child

not allowed to inherit

go to first line of survivors and divide evenly and then go to the next

• Any document that is executed with testamentary intent
• ambulatory: not effective until death

must meet all requirements of a will

• Written entirely (or important parts) in testators hand writing
• Testator signs name on the document

• Know nature/extent of property
• Know which persons would be expected to take the property
• Understand basic plan for disposing of the property
• Understand how all the elements interrelate

• Within care and control of someone
• Influencing beneficiary's participation in some part of the will prep
• Extent of secrecy and haste
• Extent new plan changes earlier plans
• Is beneficiary's benefit unwarranted or unfair
• Testator's susceptability to influence
• Existence of independent advice

fooling the testator into signing a document purporting to be a will but including an undisclosed provision

getting testator to execute a doc by misrepresenting facts

• Later writing that meets statute of wills requirement
• physical damage to document: obliteration, must touch the words
• divorce automatically revokes provisions of former spouse

• writing must be in existence at the time will is executed
• will describes writing with sufficient detail for identification
• writing fits the description
• intent to incorporate

Presumption of revocable trust unless expressly made irrevocable

• Creation of lifetime trust intended as a shell to be activated later
• naming trustees as beneficiary of life insurance policies
• Creation of will naming the trustee of the lifetime trust as a will beneficiary

• Gifts that the donor intends to be charged against the recipient's share of the donor's estate
• NC presumption is gift unless other intention clearly expressed

Presumption of gifts of money from parents to children after a will's execution are in satisfaction of any legacies under the will

gifts specifically identified; use of "my" is an indicator of this type of gift

• legacies
• 1/3 of estate or $3000

gifts which the testator intends to come from a specific source, but which can also come out of the general assets

• happens when doc gives away property that isn't available when doc effective
• Identity Theory: specific gift fails if the subject matter isn't an estate asset at death

• When there is not enough money the property is sold off in this order to satisfy creditors
• 1. anything not disposed of by the will
• 2. Residuary devises
• 3. General devises
• 4. Specific devises

• Elective Share Model
• (applicable share) x (total net assets)- (property already passing)

• will take an intestate share unless
• 1. testator made some provision in the will for the child, regardless of size
• 2. apparent from the will that testator intentionally did not make specific provision for the child
• 3. testator had children living when will executed and none of them have shares under the will
• 4. surviving spouse receives everything under the will
• 5. testator made provision fo rthe child that takes effect upon death of testator

Power of Attorney that survives the principal becoming incompetent and last until death of principle

• 1. transfer of property by a settlor to a person as trustee during the settlor's lifetime
• 2. declaration by the owner of property that the owner holds identifiable property as trustee
• 3. Exercise of a power of appointment in favor of a trustee
• 4. Court judgment

• 1. Settlor has capacity to create the trust
• 2. Settlor indicates the intent to create a trust
• 3. Property is transferred to the trust
• 4. trust has definite beneficiary (or animal, charitable, non-charitable)
• 5. Trustee has duties to perform
• 6. Same person not trustee and sole beneficiary
• 7. Compliance with formalities

Settlor can alter/ terminate trust at will regardless of beneficiary consent

• All consent-S and B may compel the modification or termination of trust without court approval even if inconsistent with material purpose
• Court may modify terms or terminate if it will further the purpose of the trust

• 1. survived by 1 child or lineal descendant-all to that person
• 2. intestate is survived by 2+ children or their descendants equally divided between children
• 3. if no child, then parents in equal shares or whole share if one parent deceased
• 4. if no kids or parents then brothers and sisters
• If no one of these then 1/2 to paternal grandparents (then aunts and uncles), 1/2 tomaternal grandparents (then aunts and uncles), if no one on one side then the other side gets all

all property which is given during testator's lifetime shall be counted toward the advancee's intestate share, but will not exceed such share

• 1. will signed by testator and by 2 competent witnesses
• 2. testator must sign the will or have someone sign the will for him
• 3. testator must signify to the witnesses that the instrument is his will
• 4. witness must sign will in the presence of the testator

• 1. Written totally in the testator's handwriting
• 2. name written on will in handwriting
• 3. found after testator's death amoung valuable papers and effects

A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision, creditor or assignee of the beneficiary may not reach the interes or a distribution before its receipt by the beneficiary

• interest in a trust that is subject to the trustee's discretion
• beneficiary may not transfer a discretionary trust interest
• creditor may not reach an interest before receipt by beneficiary

• property of a revocable trust is subject to claims of the settlor's creditors
• if irrevocable: creditor may reach the maximum amount that can be distributed to or for the settlor's benefit
• after death of a settlor the property of a trust that was revocalbe at the settlor's death is subject to claims of the settlor's creditors