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| Powers of appointment |
general or specific (who it can be exercised in favor of)
will must EXPRESSLY exercise a power of appt.
EXCEPTION: implication (as if own property)
- may be exercised by "blanket exercise" |
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Robin Wed, 01 Jul 2009 03:24:42 GMT |
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| Early termination of trust |
requirements:
- all beneficiaries are sui juris (18+ w/ capacity) consent
- there is no further trust purpose
* spendthrift clause: trust is indestructible |
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Robin Wed, 01 Jul 2009 03:22:14 GMT |
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| Uniform Prudent Investor Act |
modern portfolio theory: conduct measured when decision made, NOT retrospectively
consider many factors
- economic conditions, etc.
- role of each investment w/in portfolio
- expected total return
- needs for liquidity
- different interests of beneficiaries
etc.
trustee may exercise ADJUSTMENT POWER to adjust total return between principal and income (use factors to determine)
- distributions to income, receipt to principal
- 10% "income" rule for mineral leases, patents, copyrights, royalties, etc.
- expenses against income, capital expenditures against principal |
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Robin Wed, 01 Jul 2009 03:22:14 GMT |
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| Self-dealing by fiduciary |
prohibited:
- buy or sell assets to self
- borrow trust funds
- loan funds to trust
- profit from serving as trustee
- buy own stock as trust investment
* beneficiaries have NO action against BFP!
EXCULPATORY CLAUSE: valid EXCEPT for bad faith, gross negligence, fraud |
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Robin Wed, 01 Jul 2009 03:22:14 GMT |
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| Creditors' claims, spendthrift trusts |
trust beneficiary's interest can be reached by beneficiary's creditors UNLESS trust contains a spendthrift clause
MA: spendthrift clauses are valid EXCEPT:
- contracts for necessaries
- alimony, child support
- any interest retained by settlor (revocable trust)
- federal tax liens
* estoppel applies if beneficiary participates in breach of trust
creditors may NOT reach:
- interest retained by settlor
- interest irrevocably transferred to third parties EXCEPT: fraudulent transfers |
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Robin Wed, 01 Jul 2009 03:15:02 GMT |
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| Purchase money resulting trust |
A pays for land but title is taken in B's name (A and B unrelated): B holds resulting trust, A may compel reconveyance
- evidence admissible (by B) to show gift or loan of purchase price
if A and B related: presumptive gift |
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Robin Wed, 01 Jul 2009 03:10:55 GMT |
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| Secret trust |
testimony admissible to show existence of promise (but NOT later request found after death)
NO semi-secret trust (will makes device to trustee for purposes already communicated) because of wills requirement that beneficiaries be named in will, not by oral testimony |
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Robin Wed, 01 Jul 2009 03:10:55 GMT |
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| Constructive trusts, resulting trusts |
equitable remedy to disgorge unjust enrichment if there is wrongful conduct or unjust enrichment |
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Robin Wed, 01 Jul 2009 03:10:55 GMT |
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| Honorary trusts |
trustee is on her honor in deciding whether to perform trust for animal
valid ONLY if sense that it will be upheld if trustee decides to perform
otherwise: resulting trust in favor of residuary beneficiary
subject to RAP |
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Robin Wed, 01 Jul 2009 03:10:55 GMT |
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| Charitable trusts |
- NOT subject to RAP
- must be for charitable purpose
- must be in favor of reasonably large members of the public
- subject to cy pres (decided by state AG)
* general charitable intent may be given effect
* specific direction that can no longer be achieved: reformed
* modification due to changed circumstances ok |
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Robin Wed, 01 Jul 2009 03:04:32 GMT |
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| Uniform Transfers to Minors Act |
make gifts that aren't distributed until later age |
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Robin Wed, 01 Jul 2009 03:04:32 GMT |
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| Pourover will |
VALID
- even if trust is subject to revocation or amendment and is amended
- even if trust is unfunded during life
* need not be in existence before or executed concurrently with will: may be created after will is signed |
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Robin Wed, 01 Jul 2009 03:04:32 GMT |
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| Self-declaration of trust |
settlor=trustee retains trust income for life and power to revoke
valid so long as:
- settlor is not sole beneficiary
- sole beneficiary is not the sole trustee |
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Robin Wed, 01 Jul 2009 03:04:32 GMT |
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| Revocation |
MA: trusts are irrevocable and unamendable unless power is expressly retained |
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Robin Wed, 01 Jul 2009 02:51:25 GMT |
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| Oral trusts of land |
NOT valid
but ok for personal property |
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Robin Wed, 01 Jul 2009 02:51:25 GMT |
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| Lawful purpose |
- must not be against public policy or law
- partial restraints on marriage are VALID |
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Robin Wed, 01 Jul 2009 02:51:25 GMT |
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| Rule Against Perpetuities |
no future interest is good unless it must vest, if at all, not later than 21 years after some life in being at creation of the interest |
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Robin Wed, 01 Jul 2009 02:51:25 GMT |
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| Requirements for valid trust |
settlor (grantor) delivers trust property to trustee for benefit of beneficiaries w/ intent to create a trust for a lawful purpose
- settlor must have capacity (age 18+; higher capcity req. to convey title than for wills)
- delivery not req. for self-declaration of trust (grantor=trustee); otherwise delivery req. (e.g., for inter vivos trust; promise insuff.)
- trust property must be certain and identifiable; legal title must be conveyed
* trust does not fail for lack of trustee |
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Robin Wed, 01 Jul 2009 02:48:34 GMT |
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| Trust: definition |
trustee holds legal title to assets for benefit of beneficiaries who hold equitable title
trustee has burdens of ownership
beneficiaries have benefits of ownership |
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Robin Wed, 01 Jul 2009 02:48:34 GMT |
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| Sale of real estate w/o court approval |
administrator appointed by court: YES
executor or trustee named in will: NO |
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Robin Wed, 01 Jul 2009 02:48:34 GMT |
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| Estate administration: statute of limitations |
claims must be filed w/in 1 year of decedent's death
EXCEPT:
- new assets discovered
- claim was covered by insurance
- where justice and equity require |
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Robin Wed, 01 Jul 2009 02:48:34 GMT |
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| Tortious interference w/ inheritance rights |
NOT recognized in MA |
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Robin Wed, 01 Jul 2009 02:42:03 GMT |
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| No-contest "in terrorem" clause |
valid in MA w/o regard to probable cause |
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Robin Wed, 01 Jul 2009 02:42:03 GMT |
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| Undue influence |
- existence and exertion of influence
- effect is to overpower mind and will of testator
- product is a will (or gift) that would not have been made but-for the influence
* mere opportunity insuff.
* mere susceptibility insuff.
* mere fact of unnatural disposition insuff.
BUT: opportunity + susceptibility + unnatural disposition together may be suff.
FIDUCIARY RELATIONSHIP + benefit: presumption of undue influence (burden to show: made w/ full knowledge and intent OR independent counsel) |
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Robin Wed, 01 Jul 2009 02:42:03 GMT |
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| Testamentary capacity |
- understand nature of act
- know nature and approx. value of property
- know natural objects of bounty
- understand disposition being made |
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Robin Wed, 01 Jul 2009 02:37:21 GMT |
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| Will contests |
must have economic interest that would be adversely affect by probate |
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Robin Wed, 01 Jul 2009 02:37:21 GMT |
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| Elective share statute |
to protect surviving spouse against disinheritance
survived by issue: $25,000 of personal property (held in trust, or real property in legal estate) + 1/3 balance
survived by kindred but not issue: $25,000 + 1/2 balance
survived by spouse alone: $25,000 + 1/2 balance outright (rare)
* applies to revocable trusts created after 1/23/84
* applies to all personal property and real property in MA
* may NOT be made by predeceased spouse
* abatement rules apply
* must be claimed w/in 6 months of decedent's death
* surviving spouse must not have deserted, etc. |
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Robin Wed, 01 Jul 2009 02:37:21 GMT |
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| Attorney's liability for negligence |
emerging rule: duty owed to intended beneficiaries of attorney's advice and services
old rule: no attorney-client relationship, no privity of contract
MA: undecided |
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Robin Wed, 01 Jul 2009 02:37:21 GMT |
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| Effect of express words of disinheritance |
ok BUT: when will does not make a complete disposition, words of disinheritance are INEFFECTIVE |
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Robin Wed, 01 Jul 2009 02:27:58 GMT |
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| Contract to make a will |
ok but Statue of Frauds applies
alternative: quantum meruit (if not in writing) |
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Robin Wed, 01 Jul 2009 02:27:58 GMT |
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| Mistake or ambiguity in will's terms |
PLAIN MEANING RULE applies: extrinsic evidence NOT admissible to overturn plain meaning
LATENT AMBIGUITY: extrinsic evidence may clarify but NOT change meaning
PATENT AMBIGUITY: extrinsic evidence NOT admissible (but ok under modern rule except blanks--never ok)
MISTAKE IN INDUCEMENT: absent fraud, no remedy
FRAUD IN INDUCEMENT: impose constructive trust in beneficiary's favor |
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Robin Wed, 01 Jul 2009 02:27:58 GMT |
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| Nontestamentary acts: "acts of independent significance" |
e.g., "car that I own at death"
ok EXCEPT: title documents (deeds, etc.)
i.e., ok for tangible personal property and cash only |
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Robin Wed, 01 Jul 2009 02:27:58 GMT |
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| Incorporation by reference |
ok IF:
- writing is in existence when will executed
- will shows intent to incorporate the writing
- will describes the writing suff. to permit identification
EXCEPT: existing document that makes gifts of tangible personal property may be altered at any time |
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Robin Wed, 01 Jul 2009 02:21:17 GMT |
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| Specific gift of encumbered property |
MA: lien is NOT exonerated (general provision to pay debts insuff.)
majority: exonerated |
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Robin Wed, 01 Jul 2009 02:21:17 GMT |
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| Ademption by extinction |
property not in estate
EXCEPTION: if sold by guardian or conservator, beneficiary is entitled to proceeds if traceable
applies ONLY to specific gifts |
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Robin Wed, 01 Jul 2009 02:21:17 GMT |
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| Abatement |
gifts to spouse and minor children last, even if residuary gifts |
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Robin Wed, 01 Jul 2009 02:21:17 GMT |
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| Testamentary gifts |
- specific devise (Blackacre)
- demonstrative devise ($10 from stock X)
- general legacy ($10)
- residuary gift (the rest)
- intestate property |
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Robin Wed, 01 Jul 2009 02:17:11 GMT |
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| Omitted child statute |
omitted child (MA: ALL children) takes intestate share UNLESS omission clearly intentional or child was provided for during T's life
ONLY applies to probate |
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Robin Wed, 01 Jul 2009 02:17:11 GMT |
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| Divorce |
revokes all gifts and fiduciary appointments in favor of spouse
ONLY applies to wills (incl. pour-over trusts) |
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Robin Wed, 01 Jul 2009 02:17:11 GMT |
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| Testator marries after will is executed |
will revoked in entirety unless clearly made in contemplation of marriage
NOTE:
- does NOT affect non-probate transfers
- does NOT apply when will republished by execution of a codicil |
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Robin Wed, 01 Jul 2009 02:17:11 GMT |
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| Rule of convenience: "class closing" |
class is closed when any class member is entitled to a distribution |
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Robin Wed, 01 Jul 2009 02:05:32 GMT |
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| "Class gift" rule of construction |
in a gift by will to a class ("children," etc.), if a class member predeceases, surviving class members take |
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Robin Wed, 01 Jul 2009 02:05:32 GMT |
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| Lapse in residuary gift--"surviving residuary beneficiaries" rule |
if residuary estate devised to 2+ persons and a gift to 1 lapses or fails, then surviving residuary beneficiaries take in proportion to their interests
* anti-lapse trumps surviving residuary beneficiaries |
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Robin Wed, 01 Jul 2009 02:05:32 GMT |
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| Anti-lapse statute |
if beneficiary predeceases, gift lapses UNLESS saved by anti-lapse:
applies if beneficiary was a child or other relative by blood or adoption |
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Robin Wed, 01 Jul 2009 02:05:32 GMT |
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| Effect of changes on face of will |
partial revocations: valid in MA
BUT new words must be attested (may apply DRR) |
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Robin Wed, 01 Jul 2009 01:55:00 GMT |
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| Dependent relative revocation |
revocation may be disregarded when act was conditioned upon mistake of law or fact as to validity of later disposition
NOT applicable if it would defeat testator's intent (must be that prior will comes closer to intent that intestacy) |
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Robin Wed, 01 Jul 2009 01:55:00 GMT |
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| Revival of revoked wills |
common law: NO revival of revoked will
MA: NO revival UNLESS will is still in existence and there is evidence that testator intended to revive |
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Robin Wed, 01 Jul 2009 01:55:00 GMT |
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| Later will does not contain revocation language |
read wills together; earlier will is revoked by implication if wholly inconsistent; otherwise, treat later will as codicil |
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Robin Wed, 01 Jul 2009 01:51:23 GMT |
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| Presumptions of lost wills |
- if last seen in T's possession or control: revoked by physical act
- if last seen in T's possession or control and found mutilated: done by T
do NOT apply if last seen in possession of someone adversely affected by contents |
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Robin Wed, 01 Jul 2009 01:51:23 GMT |
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| Proof of Lost Wills Rule |
- proof of due execution (testimony of attesting witnesses)
- cause of will's nonproduction proven
- contents proven by secondary evidence (e.g., copy)--oral testimony must be strong, positive, free from doubt |
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Robin Wed, 01 Jul 2009 01:51:23 GMT |
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| Revocation of wills |
- later testamentary instrument
- physical act
- operation of law |
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Robin Wed, 01 Jul 2009 01:51:23 GMT |
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| Uniform Execution of Foreign Wills Act |
will executed in another state is admissible to probate in MA IF executed in accordance w/:
- MA law
- execution law (of place where executed)
- domicile law (of place where testator domiciled at signing or at death) |
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Robin Wed, 01 Jul 2009 01:47:35 GMT |
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| Oral wills |
ONLY for soldiers on active duty, mariners at sea for personal property |
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Robin Wed, 01 Jul 2009 01:47:35 GMT |
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| Holographic wills |
NOT recognized
- will may be handwritten, but must have 2 witnesses |
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Robin Wed, 01 Jul 2009 01:47:35 GMT |
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| Interested witness |
does NOT affect validity of will
BUT: beneficiary loses legacy (purging statute) UNLESS there were 2 disinterested attesting witnesses (supernumerary rule) |
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Robin Wed, 01 Jul 2009 01:47:35 GMT |
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| Codicil |
same formalities as will execution:
testator age 18+ signs in presence of 2 witnesses (or acknowledge to witnesses) and witnesses sign in testator's presence |
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Robin Wed, 01 Jul 2009 01:43:00 GMT |
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| Requirements for will execution |
testator age 18+ signs in presence of 2 witnesses (or acknowledge to witnesses) and witnesses sign in testator's presence
- witnesses must be in testator's line of sight
***MA does NOT require:
- that T sign at bottom
- that witnesses know they are signing a will (publication)
- that witnesses sign in each other's presence |
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Robin Wed, 01 Jul 2009 01:43:28 GMT |
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| Non-probate property |
- property passing by right of survivorship
- property passing by contract
- property held in trust
- property over which decedent held a power of appointment |
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Robin Wed, 01 Jul 2009 01:40:14 GMT |
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| Disclaiming an interest (heir or beneficiary) |
must be:
- in writing and signed (if real property, must be notarized and recorded where located)
- filed w/ probate court w/in 9 months after decedent's death
* NOT allowed to defeat creditors' claims if disclaimant is insolvent |
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Robin Wed, 01 Jul 2009 01:40:13 GMT |
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| Lifetime gifts |
common law: presumptively advancement
MA: NOT an advancement UNLESS declared in contemporaneous writing (NOT later) or acknowledged in writing by donee |
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Robin Wed, 01 Jul 2009 01:40:13 GMT |
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| Uniform Simultaneous Death Act |
applies to:
- intestacy
- wills (invokes lapsed gift doctrine, anti-lapse statute)
- insurance
***MA did NOT adopt the 120-hour rule |
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Robin Wed, 01 Jul 2009 01:33:25 GMT |
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| Children born out of wedlock |
NO inheritance from bio father unless:
- mother and father marries and father acknowledge
- acknowledged
- paternity suit
- paternity est. in probate proceedings w/in 1yr of decedent's death
compare:
nonmarital child has FULL inheritance from mother and mother's kin |
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Robin Wed, 01 Jul 2009 01:30:01 GMT |
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| Adopted children |
no inheritance from natural parents or their kin EXCEPT where adopted by spouse of natural parent |
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Robin Wed, 01 Jul 2009 01:30:01 GMT |
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| Decedent not survived by parents (or spouse or issue) |
siblings take per capita w/ representation |
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Robin Wed, 01 Jul 2009 01:30:01 GMT |
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| "laughing heirs" statute |
NOT in MA! |
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Robin Wed, 01 Jul 2009 01:30:01 GMT |
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| Intestate decedent not survived by spouse or issue |
all to parents or surviving parent |
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Robin Wed, 01 Jul 2009 01:26:25 GMT |
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| Per capital w/ representation |
per capital at first level, by representation at next level (go to first level of living takers)
issue of deceased children take by representation |
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Robin Wed, 01 Jul 2009 01:26:25 GMT |
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| Extra statutory rights of surviving spouse |
- right to occupy residence for 6 months (NOT right of survivorship, joint tenancy, etc.)
- spouse's allowance for necessitities during adjustment period (discretionary)
takes priority over debts, admin expenses, and is in addition to amounts passing by will |
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Robin Wed, 01 Jul 2009 01:26:25 GMT |
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| Intestate share of surviving spouse |
survived by spouse + issue:
--spouse: 1/2
--issue: 1/2
survived by spouse + parents/other relatives
--spouse: $200,000 + 1/2 balance
--parents: 1/2 of balance
$200,000 comes first from personal property or real property
survived by spouse alone: 100%
rare: ***MA allows any relative to be heir |
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Robin Wed, 01 Jul 2009 01:26:25 GMT |
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| Intestate distribution rules apply when |
- decedent left no will (or not validly executed)
- will does not make a complete disposition (partial intestacy)
- heir successfully contests the will and it is denied probate
- testator marries after will's execution and it is revoked by operation of law
- omitted child statutes |
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Robin Wed, 01 Jul 2009 01:21:56 GMT |
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| Non-probate transfers |
interests that pass by right of survivorship or under terms of a constract |
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Robin Wed, 01 Jul 2009 01:21:56 GMT |
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| Residuary estate |
estate that remains after debts, taxes, admin expenses paid and specific and general legacies made by will satisfied |
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Robin Wed, 01 Jul 2009 01:21:56 GMT |
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| Probate |
judicial proceeding where court determines that decedent left a validly executed will (or that decedent died intestate and heirs are determined) and appoints a personal representative (executor if named in will; administrator if appointed) |
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Robin Wed, 01 Jul 2009 01:21:56 GMT |
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