What are the basic requirements for a valid will?
A valid will requires the testator to have testamentary capacity (sound mind) and testamentary intent (intending the document to be their will).
What is Testamentary Capacity?
The testator must be at least 18 years old and of sound mind, meaning they understand: 1. The nature of the act (they’re making a will). 2. The nature and extent of their property. 3. The natural objects of their bounty (their family/beneficiaries).
What is Testamentary Intent?
The testator must intend for the document to be their will and dispose of their property upon death. This intent can be negated by undue influence, fraud, or mistake.
What is Undue Influence?
When physical or mental coercion controls the testator’s disposition of property, overcoming their free will. Factors include the influencer’s opportunity, the testator’s susceptibility, active participation, and an unnatural result.
What are the formalities for a Formal (Attested) Will?
It must be in writing, signed by the testator, and signed by at least two witnesses in the testator’s joint presence, with the witnesses understanding it’s a will.
What is a Holographic Will?
A will that is signed by the testator and has its material provisions in the testator’s own handwriting. No witnesses are required.
What is a Codicil?
An alteration or amendment to an existing will. It must be executed with the same formalities as a will (either attested or holographic).
What is Incorporation by Reference?
A separate document can be included as part of a will if: 1. The document existed at the time the will was executed. 2. The will shows intent to incorporate it. 3. The writing is described in the will with reasonable certainty.
How can a will be revoked?
A will can be revoked in whole or in part by: 1. A subsequent will (expressly or by inconsistency). 2. A physical act (e.g., burning, tearing, obliterating) with the concurrent intent to revoke.
What is Dependent Relative Revocation (DRR)?
If a testator revokes their will based on a mistaken belief that another disposition would be effective, and but for this mistake, they wouldn’t have revoked, the revocation is canceled, and the original will is revived.
What is Abatement?
The process of reducing testamentary gifts when the estate’s assets are insufficient to pay all debts and claims, and all gifts under the will.
What is Ademption by Extinction?
A specific devise (gift) fails if the testator no longer owns the specific property at the time of death. The beneficiary gets nothing.
What is Ademption by Satisfaction?
An inter vivos (lifetime) gift from the testator to a beneficiary that is treated as a satisfaction (or reduction) of a testamentary gift, if the testator intended it as such.
What is Lapse?
If a beneficiary predeceases the testator, the gift to that beneficiary ‘lapses’ (fails) and falls into the residue of the estate.
What is the rule for Omitted Spouse or Omitted Child?
If a testator’s will was executed before marriage or the birth of a child, and the will inadvertently fails to provide for the surviving spouse or child, they may be entitled to an intestate share of the estate.
What is Intestate Distribution?
When a person dies without a valid will, their property is distributed according to state law to their heirs (e.g., surviving spouse, children, parents).
What is a Trust?
A legal arrangement where a settlor transfers legal title of property (the ‘res’) to a trustee, who holds and manages it for the benefit of beneficiaries.
What is a Private Express Trust?
A trust created by a settlor with explicit intent, identifiable trust property, ascertainable beneficiaries, and a valid trust purpose.
What is a Charitable Trust?
A trust created for a charitable purpose (e.g., relief of poverty, advancement of education or religion). It can last forever and does not require ascertainable beneficiaries.
What is a Spendthrift Trust?
A trust that restrains the beneficiary’s ability to transfer their interest in the trust and generally prevents creditors from accessing the trust funds until the beneficiary actually receives payment.
What is a Discretionary Trust?
A trust that grants the trustee absolute discretion to make distributions to the beneficiary as they see fit. Neither the beneficiary nor their creditors can compel payment.
What is a Support Trust?
A trust that directs the trustee to pay only what is necessary for the beneficiary’s support. Voluntary and involuntary transfers are prohibited.
What is the Trustee’s Duty of Loyalty?
A trustee must administer the trust in good faith and in the best interests of the beneficiaries, avoiding self-dealing and conflicts of interest.
What is the Trustee’s Duty of Care?
A trustee must exercise the care, skill, and caution that a reasonably prudent person would in managing the trust, including a duty to diversify trust assets.
