Wills and Trusts

  1. Share of Surviving Spouse-Real Property
    • 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
  2. Share of Surviving Spouse-Personal Property
    • 1 Child: $30K plus 1/2 balance
    • 2+ children: $30K plus 1/3 balance
    • 1+ parent: $50K plus 1/2 balance
    • no survivors: all
  3. Adopted Children
    • treated as natural child of adoptive parent for inheritance
    • removed from natural family unless marriage
    • adopted family may inherit from adopted child
  4. Step-Children
    not allowed to inherit
  5. Per Capita at Each Generation
    go to first line of survivors and divide evenly and then go to the next
  6. Will
    • Any document that is executed with testamentary intent
    • ambulatory: not effective until death
  7. Codicil
    must meet all requirements of a will
  8. Holographic Will
    • Written entirely (or important parts) in testators hand writing
    • Testator signs name on the document
  9. Capacity
    • 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
  10. Undue Influence
    • 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
  11. Fraud in Execution
    fooling the testator into signing a document purporting to be a will but including an undisclosed provision
  12. Fraud in Inducement
    getting testator to execute a doc by misrepresenting facts
  13. Revocation of a Will
    • Later writing that meets statute of wills requirement
    • physical damage to document: obliteration, must touch the words
    • divorce automatically revokes provisions of former spouse
  14. Incorporation by Reference
    • 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
  15. NC Trust Presumption
    Presumption of revocable trust unless expressly made irrevocable
  16. Pour-Over Wills
    • 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
  17. Advancement
    • 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
  18. Satisfaction
    Presumption of gifts of money from parents to children after a will's execution are in satisfaction of any legacies under the will
  19. Specific Gifts
    gifts specifically identified; use of "my" is an indicator of this type of gift
  20. General Gift
    • legacies
    • 1/3 of estate or $3000
  21. Demonstrative Gift
    gifts which the testator intends to come from a specific source, but which can also come out of the general assets
  22. Ademption
    • 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
  23. Abatement
    • 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
  24. Spouse Elective Share
    • Elective Share Model
    • (applicable share) x (total net assets)- (property already passing)
  25. After-Born Child Share
    • 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
  26. Durable Power of Attorney
    Power of Attorney that survives the principal becoming incompetent and last until death of principle
  27. Methods of Creating a Trust
    • 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
  28. Requirements for Creating Trust
    • 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
  29. Modification of Trusts
    Revocable Trust with Settlor Alive
    Settlor can alter/ terminate trust at will regardless of beneficiary consent
  30. Modification of Trusts
    Irrevocable Trust with Settlor Alive and Consenting
    • 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
  31. Intestate Succession
    • 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
  32. Gifts by Intestate Testator
    all property which is given during testator's lifetime shall be counted toward the advancee's intestate share, but will not exceed such share
  33. Attested Written Will
    • 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
  34. Holographic Will
    • 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
  35. Spendthrift Trust
    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
  36. Discretionary Trust
    • 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
  37. Creditor's Rights Against Settlor
    • 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
Card Set
Wills and Trusts
Wills and Trusts Bitches