Wills and Trusts

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Yaima
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277497
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Wills and Trusts
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2014-07-15 11:34:46
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  1. Will
    • an ambulatory document,
    • executed by a testator/testatrix,
    • that takes effect upon death of same person.
  2. Ambulatory
    • an ambulatory document may be revoked/modified,
    • at any time during the testator/testatrix's life.
  3. Will Language
    • Devise → a disposition of real property.
    • Devisee → person receiving property under a will provision.

    • Bequest → a gift of personal property.
    • Legacy = a gift of money.
  4. Express Trust
    • Intentional,
    • agreement,
    • separating legal and equitable title to property,
    • for the benefit of a trust beneficiary.
  5. Inter vivos Trust
    • Established while the settlor is still living;
    • which may be revocable or irrevocable.
  6. Testamentary Trust
    • A trust,
    • established in a testator's will,
    • that is irrevocable,
    • and takes effect upon the death of the testator.
  7. Probate Estate
    • Consists of
    • (1) property owned solely by the decedent;
    • (2) property held as tenant in common;
    • (3) vested remainders held by the decedent.
  8. Mortmain Statutes
    • Prior to being invalidated in Florida,
    • Mortmain statutes made charitable devises voidable,
    • if they were devised less than 6 months before the death of the testator.

    __interested persons wishing to contest charitable devises like these must rely on undue influence, duress, fraud etc...
  9. Choice of Law
    Real Property = subject to the law of the state of where it's located.

    Personal Property = subject to the law of the state of where the decedent is domiciled at the time of death.
  10. Joint Ownership w/ Survivors-hip Rights
                  Tenants by Entirety
    • Effect--
    • (R)-- (1) if a decedent owned property as tenant by entirety w/another (spouse)  (2) the survivor takes all the property by operation of law.

    *Creditors--creditors of either spouse may not reach the property.

    *FL -presumes a tenancy by the entirety, if a married couple take property in both their names. (Spouse may simply re-deed the property in both names) (no straw needed).

    *Divorce--converts the property interest into a tenancy in common.
  11. Joint Tenancy w/Rt of Survivorship
    (R)-- (1) decedent owned property as joint tenants w/right of survivorship; (2) the surviving other gets the property by operation of law.

    *FL--requires express words of survivorship. (or it'll treat it as mere tenants in common) [important cause tenancy in common is subject to probate.]

    • *Unities Required:
    • ---same time; {a straw man may or may not be required}
    • --same instrument;
    • --same interest share;
    • --same right to possess.
  12. Jointly Owned Bank Accounts
    • (1) Presumed right of survivor-ship;
    • (2) but no creditor protection, unless explicit language creates tenancy by entirety in the account.
  13. Totten Trusts
    • Depositor--
    • (1) Deposits/Withdraws during life;
    • (2) Reachable by creditors depositor's life;
    • (3) Revocable during depositor's life;
    • -----withdrawing funds;
    • -----manifesting intent to revoke;
    • -----bequeaths account to another.

    • Beneficiary--
    • (1) Right to account vests at depositor's death;
    • (2) gets whatever is left in the account.
    • (3) Gift lapses if beneficiary predeceases depositor. (bene's death terminates the totten trust).

    *subject to probate if lapse, revoked etc...
  14. Convenience Bank Account--
    • (1) only the owner has a right to all sums;
    • (2) another party may have present access to the funds (to pay bills etc) but has no right to the funds upon death of the owner.
  15. Pay on Death
    • (1) Contract b/w Owner & Bank/firm;
    • (2) to distribute the funds upon owner's death;
    •      death = vests bene's right to the funds.
    • (3) to designated beneficiary.

    • *revocable; amendable;
    • * owner retains control while living (reachable by creditors)
  16. Transfer on Death
    • (1) With Regard to Securities;
    • (2) at the time the account is opened;
    • (3) owner designates a beneficiary;
    • (4) to receive account securities/assets upon owner's death.
  17. Life Insurance
    • (1) Contract b/w Owner & Insurance Co.;
    •        (a) Whole Life; or
    •              () Net Cash Surrender Value = the amount the owner could get if he decided to cash out early.
    •        (b) Term Life.
    •              () No Net Cash Surrender.
    • (2) Promising to pay proceeds;
    • (3) to designated beneficiary;
    • (4) upon death of the insurance owner,
    • (5) and not subject to probate, unless:
    •      * lapses if bene predeceases = becomes subject to probate.       
    •      * subject to probate only if beneficiary is the Estate; The Decedent; or the Personal Representative.
  18. Pension/Retirement Assets
    • (1) owners designate a beneficiary;
    •      bene's rights vest at the death.
    • (2) to receive the account balance of the pension/retirement plan,
    • (3) which is not subject to probate unless:
    •    * bene doesn't survive (lapses);
    •    * bene is the estate;
    •    * owner failed to name a bene.
  19. Annuity
    • (1) Ks b/w owner & co./issuer;
    •         for life;
    •         refund;
    •         set term payments.
    • (2) owner gives co $;
    • (3) in exchange for annuity payments.
    •       * fixed = set or fixed amount.
    •       * Variable = payments fluctuate according to market conditions.
    •       ()for life--payments seize upon death;
    •       () refund--provides for a refund that is payable at death;
    •       () set term payments--may continue after the owner's death. K may designate a bene to receive any proceeds that remain at his death. (if set term payments)

    • (4) which is not subject to probate, unless:
    • __bene predeceases (lapse);
    • __Estate is named as bene;
    • __no Designated Bene;
    • __Payment for life (only), and a sum is due.
  20. Statutory Distribution of Intestate Estate
    • Spouse takes first.
    • ☛ If no issue →  Spouse = 100%.
    • ☛ if all existing issue are common to both spouses  → Spouse = 100%.
    • ☛ if survived by an uncommon issue (decedent's or spouses') → Spouse = 50%
    • (natural born or adopted)


    • All other Heirs--take whatever part of estate the spouse doesn't take.
    • Lineal Descendants (issue)= 100% (equally & per stirpes)
    • (natural or adopted)
    • Parents = 50% to each or 100% to survivor.
    • Siblings & their Descendants = 100%  (equally)[collateral heirs]
    • Parental Kindred (grandparents & their blood Descendants. (equally and per stirpes).
    • Kindred of Last Deceased Spouse = if none of the above + then the blood kindred of the last spouse to predecease the decedent may collect.

    Escheat--property may escheat to the State only if a person dies intestate and doesn't leave any heirs entitled to the property.
  21. Escheat
    • (1) Intestate Death+
    • (2) Leaving no qualified Heirs+
    •     --A qualified heir has 10 years to assert entitlement (even if administration has been closed)
    • (3) Property shall escheat to state.

    * Bop = state must prove Intestate death + no spouse + dilligent search failed to produce heir.
  22. Equitable Adoption
    • (1) Agreement;
    • (2) Performance by Natural Parent;
    • (3) Performance by Child;
    • (4) Part/Performance by Adoptive Parents;
    • (5) Intestate Death of adoptive parents;
    • (6) Clear and Convincing evidence.

    Allows child to inherit from "adoptive parents" and may still inherit from natural parents! (since they messed up).
  23. Adoption
    Adopted children, are treated as children of the adoptive parents, and are cut off from their biological parents unless:

    (#) the relevant biological parent married adopted parent.

    • (#) the relevant parent died before the other "natural" parent married the adoptive parent, & adoption took place.
    •    (this is true even if the first deceased parent was also an adoptive parent)

    (#) child adopted by close family member.
  24. Pure Per Stirpes
    estate is divided into as many equal parts as there are descendants in the nearest generation to the decedent.

    • $1,500 Estate.
    • _no Spouse.
    • -3 issue (descendants); A, B, & C.

       per issue.

    • if C predeceases but leaves 2 descendants of his own; D & E =
    •    and   
  25. Per Capita
    Distribution begins at the first generation that contains living members, and divides per stirpes there.
  26. UPC
    Distribution begins at the first generation that contains living members + pools together all the shares of the deceased descendants = pool is shared equally among all the qualified descendants.
  27. Out of Wedlock Children
    • A non-Marital Child and his father have no inheritance rights w/respect to each other, unless:
    • (*) Marriage b4/after birth;
    • --even if marriage is invalid, but was attempted.
    • --strong presumption that child born into a marriage is of that marriage.

    • (*)Adjudicated Paternity;
    • --before or after father's death;
    • --within 4years of turning 18

    • (*) Written Acknowledgement by father.
    • --can't be too remote a descendant.
  28. After Born
    • (1) Conceived prior to,
    • (2) but born after the death,
    • (3) inherits as if she had been born at the point of conception.
  29. Assisted Reproduction
    • (1) conceived from the egg or sperm,
    • (2) of person who died before transfers to a woman's womb,
    • (3) is not eligible to inherit from the decedent's estate, unless he's provided for in the will.
  30. Half Blood
    Entitled only to half as much as a whole heir, unless only half bloods survive → share equally.

    • 1) divide the estate at the parental level;
    • 2) assign 1 part to half-bloods and 2 parts to full common heirs.

  31. Personal Representative (Testate)
    • 1) Must be Qualified
    • --if Natural Person =
    • * 18 YO;
    • * Mental capacity;
    • * No Felony;
    • * Fl Resident (if natural person)(unless close familial relation)
    •      1.granparent/or her descendants,
    •      2.adopted child/parent;
    •      3.spouse,or close family of spouse,
    •        --≠ brother in law, or nephew of spouse.
    •      4. spouse of any of the above.

    • -- if Entity =
    •       * must be authorized to serve as p/r in its corporate charter.


    • 2) Must have priority in Appointment.
    • --Selected in the will;
    • *Ct no discretion to deny appointment, unless expressly disqualified by statute.
    • --Selected by will's bene w/majority interest;
    • --Devisee (selected by Court)

    3) Consent--P/R must consent to appointment.

    • 4) P/r can't resign w/out Court Approval.

    • *must give notice to court if circumstances change making the P/r unqualified.
    • lack of notice = (1) removal by court AND (2) charged w/cost of removal.
  32. Personal Representative (Intestate)
    • 1) Qualified
    • * same as testate.

    • 2) Priority in Appointment
    • * Spouse;
    • * Majority interest heir selects.
    • * closest lineal relation selects.

    3) Consent

    4) Resignation requires court approval.
  33. Will Formalities
    Formation
    • (1) Writing
    • no oral; no holographic wills.
    • (2) Signatures:
    • --testator = any mark intended to
    • authenticate. 
    • --Proxy = *proxy in testator's presence + at his direction; must subscribe.
    • --2 Witnesses= must subscribe.
    • (3) 2 Attesting Witnesses--
    • anyone that's competent.
    • (4) In Presence = all in each others'.
    • --T can acknowledge a prior signature(his & proxy)--proxy cannot acknowledge.
    • (a) Line of sight--T/W's are capable of seeing each other w/out movement.
    • (b) conscious Presence--merely aware that doc is being signed.

    • (5) Testator must sign at the end of will + w/intent that the signature assents to the will. 
    •  (a) logical end--below all the dis-positive provisions.
    •  (b) temporal end--the end of the will process...after answering and swearing procedures are completed.
  34. Attestation Clause-
    • (1) Recites Facts of Execution;
    • (2) Prima facie evidence (facts asserted);
    • (3) helps when witnesses can't remember.
  35. Self-Proofing Affidavit
    (1) Sworn Testimony affidavit,

    (2) by T and Witnesses,

    (3) that will execution complied w/statute;

    (4) is sufficient to introduce the will into probate. (w/out needing oral testimony)

    • *may be signed at the same time of execution or later;
    • *may be the same witnesses or different(not the notary though).


    *if no affidavit →must prove proper execution of will by/at least 1 witness testimony, .
  36. Probate of Will
    • Probate Requires:
    • Sworn testimony of at least 1 witness, or self-proof affidavit,
    • regarding execution of will.

    If no attesting witnesses & no self-proof = court can hear from personal rep or other disinterested party w/knowledge.
  37. Will Challenges
    • ☀  Only interested persons may challenge a will. person who can reasonably expect to be affected by the outcome of the proceeding.
    • ☀ Wills can't be challenged until become irrevocable. (at death).

    • ☑ Will Formalities (lack of)
    • ☑ Capacity (lack of)
    • --insane delusion or lucid interval (if adjudicated incompetent)
    • ☑ Testimonial Intent (lack of)
    • ☑ Impermissible Provisions
    • --in terrorem
    • --negative will
    • ☑ Undue Influence
    • ☑ Fraud
    • --In factum
    • ☑ Mistake
    • --in execution.
    • ☑ Duress
  38. Testimonial Intent
    T must have a present intent to make a will.

    no condition precedents, but a mere motive may be okay.
  39. Testimonial Capacity
    • Testators:
    • (1) must be 18 or Emancipated;
    • marriage or court order...
    • (2) must have sound mind(capacity),
    •      1. nature of his property,
    •      2. natural objects of his bounty, (fam)
    •      3. know the gifts he's making,
    •      4. understand how the above form his plan of disposition.

    (3) at the time of will execution.

    if adjudicated incompetent/successful capacity challenge, then Argue Lucid Interval. (moment where T had all the 4 requirements of capacity).

    • Insane Delusion
    • (1) belief of non-existent fact with no known premise;
    • ___truth/falsity is not dispositive, what matters is whether the premise is "known."
    • __IF known premise = illogical belief.
    • (2) against all evidence & probability to the contrary.
  40. Lucid Interval
    • (1) After an adjudication of incompetence, or a successful challenge to capacity,
    • (2)testator returns to a state of comprehension,
    • (3) and possesses actual testamentary capacity.
  41. Negative Will
    • Attempts to preclude a would-be heir,
    • from taking a share of itntestate estate.

    Not valid in FL
  42. In terrorem Clause
    • Forfeiture clause,
    • kicks in to deprive a beneficiary,
    • who challenges a will.

    not valid in FL.
  43. Undue Influence
    • 1. Control exerted over the Testator's mind,
    • 2. overcoming his free agency/free will,
    • 3. substituting the will of the testator,
    • 4. and causing him to do what he otherwise would not have done.

    •      ☢ establish prima facie elements;
    •      ☢ unnatural gift + suspicious circumstances;
    •      ☢ Undue influence presumption.

    • Remedy--
    • Void--the whole will or a portion of the will.
  44. Presumption of Undue Influence
    A challenger to a will on the basis of undue influence must:

    • (0) must Wait until testator dies,
    • (1) must be an interested person,
    • (2) must introduce sufficient evidencer to raise the presumption of undue influence.

    1)  substantial beneficiary,

    • 2) Confidential Relationship b/w influencer & T, [where parties rely on each other]
    •       ♥ Spouses are immune from meeting this element.
    •          ☠unless marriage was procured by fraud/duress etc...
    • 3) Active involvement in procurement of will.
    •     ☢ present @execution;
    •     ☢ present when T expressed desire to make a will.
    •     ☢ influencer recommended the atty;
    •     ☢ Knew contents of the will;
    •     ☢ Instructed atty on how to draft will.
    •     ☢ Secured witnesses;
    •     ☢ Safekeeping of Will.
  45. Shifting Burden of Production / Persuasion
    ☢ Will challenger bears burden of producing enough evidence to raise presumption of undue influence.  (interested person + dead t)

    ☢ Will proponent must give reasonable explanation for his active involvement, and

    ☢ Will proponent must disprove the undue influence.
  46. Fraud
    • Fraud in Factum--where a person doesn't know the nature of the document he's executing.
    • Examples--
    •         ☛  doc was switched,
    •         ☛ T was mislead as to the nature of the doc,
    •         ☛ insertion of provision w/out his knowledge.

    • __REMEDY__
    • May be voided (whole or in part);
    • Constructive Trust may be sought.
  47. Fraud
    Fraud in Inducement--where testator knows the nature of the document, but is fradulent misled as to the real facts upon which he relied.

    • Examples--
    •       ☛ Devisee lied to T in order to get a large devise.
    •       ☛ T was mistaken as to facts...

    • __REMEDY__
    • like mistake in inducement, fraud in the inducement is not grounds for voiding a will.

    ☛ inducement leading to omission = it may be possible to impose a constructive trust.
  48. Duress
    • threat of physical harm/coercion, to T, or his fam,
    • during the execution of the will,
    • invalidates a will
  49. Mistake.
    • Mistake in the Execution = void.
    • failure to observe will formalities.
    • *this is true for formation and revocation.

    Mistake in Inducement = not void, but may be grounds for reformation.

    Mistake in Omission = not void, but may be grounds for reformation.

    • Reformation--Courts are authorized to reform wills/testamentary trusts when:
    •     1. ☛  the Will/test.trust contains a mistake,
    •             ☑ mistake of law/fact/expression or inducement.
    •     2. ☛ interested person petitions the court;
    •    3.  ☛ even if document is not ambiguous,
    •    4.  ☛ as long as there is clear and convincing evidence,
    •             ☑ any relevant evidence;
    •             ☑ even if it contradicts plain meaning of doc.
    •     5. ☛ of testator/settlor's intent.
  50. Effect of Voiding a will
    If a will is found void = decedent dies intestate (unless dependent relevant revocation/invalid revocation)

    If only a portion is void + a residual taker is named = the residuary absorbs the assets of that portion.

    A court cannot add to a will, but it may be able to instate a constructive trust. (if necessary)
  51. Revocation
    • A testator w/:
    • (1) Testamentary Intent, and
    • (2) Testamentary Capacity can revoke in any of the following ways:

    • Express by Subsequent Writing
    • Inconsistent Subsequent Writing
    • Act + Intent
    • ☑ Operation of Law.
    •       ° divorce

    • writing w/will formalities. 
    • ° another will;
    • ° codicil;
    • ° testamentary trust.
  52. Express Revocation by Subsequent Writing
    • 1) Any writing,
    •        
    • 2) executed w/ Will Formalities,
    •          ° Testamentary Intent + Capacity.
    •          ° signed@end
    •               -°- by Testator
    •               -° - subscribed by proxy in T's presence + at his direction.
    •         ° In the presence of,
    •              -°- line of sight/conscious presence.
    •         ° 2 Witnesses

    3) may revoke a whole or portion of a will.
  53. Revocation by Subsequent Inconsistent Writing
    • (1) if 2 valid wills and/or testamentary trust exist,
    •         ° wills, codicil, testamentary trust, etc...
    • (2) W/inconsistent terms,
    • (3) the terms of the later document revokes the relevant terms from the first document.

    *testamentary intent + capacity + formalities.
  54. Revocation by Act
    • A testator/or one directed by him + in his presence,
    •                 ° line of sight presence test is prolly better.
    • (2) may revoke a will/or codicil,
    • (3) by the act of burning, tearing, cancelling, defacing, or destroying,
    •               ° no partial revocation, we treat the revocation as failing & probate the will as is.
    • (4) the original executed will/codicil,
    •              ° destruction of an executed copy = presumed revocation of all.
    • (5) if he intends to revoke w/the act.
    •              ° mere frustrated intent to revoke is insufficient to impose constructive trust. (must at least attempt)

    •     ♛ Presumed Intent to Revoke when:
    •            ° if mutilated will of deceased testator found,
    •           ° that was continuously held in possession of testator,
    •           ° it is presumed the T intended to revoke it.
  55. Revocation by Operation of Law
    • (1) Annulment, Divorce, Dissolution of Marriage,
    •                   ° not mere separation.
    • (2) revokes all will/trust provisions for the ex-spouse.
    •                 ° devises to her/him,
    •                 ° appoints him P/R; Trustee etc.
    • (3) and revokes life insurance beneficiary designations
    •             ° naming the spouse,
    •             ° that were made prior to the divorce,
    •             ° regarding decedents who die after 1 july 2012.

    (4) Unless, divorce agreement says otherwise.
  56. Can a revoked Will be revived?
    • Generally, A will revoked by a valid second will) is completely revoked, and cannot be revived w/out re-executing a new will or codicil that specifically refers to it.
    •          ° all codicil of first will are revoked when the first will is revoked;
    •          ° this is true even if second will is subsequently revoked.

    • Unless, dependent relevant revocation,
    • Unless, second will wasn't properly executed.
  57. Can a will be revived if revoked by codicil?
    Yes → the lizard can live without it's tail.

    • Revocation of a codicil,
    • re-instates the relevant terms of the prior will/codicil.
    • unless, contrary testator intent.
  58. Republication by Codicil
    • 1) A codicil,
    •           ° a writing, executed w/ will formalities, that is ancillary to the will, and adds to or varies provisions n a will.
    • 2) May Republish an earlier will w/modifications,
    •          ° treat it as if the will had just been executed. (this is relevant for pretermitted issues)
    • 3) so log as the will formalities are observed,
    •             ° intent, Capacity,
    •             ° statutory formalities;
    •             ° self-proof affidavit.
  59. Incorporated by Reference
    • a document's terms may be incorporated by reference into a will if:
    •           ° writing exists @time of will execution,
    •           ° the Will manifests the intent to incorporate, and
    •           ° the Will describes the writing sufficiently to allow its identification.

    the terms are frozen in time, even if the referenced document is subsequently altered or revoked.
  60. Acts of Independent Significance
    • The Will/Trust mentions acts or events,
    • that are significant apart from their effect on dispositions.
    • may occur at any time.
  61. Written List of Personal Property
    • 1. Will must mention the document will exist/or exists; (no strict timing issue)
    • 2. Document must be signed by Testator;
    • (must describe items/people receiving them)
    • 3. Only Tangible Personal Property (not money; not stocks).
    • 4. Revocable/Modifiable.
  62. Trust
    • Settlor
    • Trustee
    • Res (and Delivery)
    • Beneficiaries
    • Purpose
    • Writing (if involves land or revocable w/testamentary aspects).
  63. Settlor
    • 1. Capacity
    • --Irrevocable (living trust) = the power to convey.
    • --Revocable testamentary aspects = testamentary capacity. (nature, bounty,dispositions, plan of disposition)
    • 2. Qualified
    • --18
    • 3. Present Intent
    • --no precatory language.
  64. Trustee
    • 1. Must have a trustee at delivery.
    • --ct can appoint a diff one if delivery has already occurred. (change of title name).
    • 2. Qualified
    • --18
    • --competent
    • --capable of owning property.
    • --Entity = authorization in its charter.
    • 3. Accept
    • --Compliance w/stipulated method,
    • --accepting delivery of trust property;
    • --exercising powers/duties.
    • Exception--no acceptance merely b/c he preserves and inspects IF written intent of rejection is sent to settlor or beneficiaries.
  65. Res (& delivery)
    • 1. Property
    • --future interest, equitable interest, real or personal.
    • 2. In Existence
    • --settlor must OWN property when he manifests intent to form trust. (unless promise + consideration or existing contract).
    • --promise + consideration = trust rises as soon as he gets the property.
    • 3. Specific and Identified
    • --must be ascertainable from looking at the trust document.
    • 4. Delivered
    • --legal title must be transferred (unless self-declared trust. self declared trust =where T is trustee).
    • --all trusts must be funded at creation (except for life insurance trusts, pour over, and testamentary trusts).
  66. Beneficiary
    • 1. Ascertainable
    • --definite or ascertainable within applicable RAP period.
    • --If created before 12/31/2000 = 90 years.
    • --if created after 12/21/2000= 360 years.
    • *Trustee may be given power to select beneficiaries from indefinite class if he exercises the power within a reasonable time.
    • --charitable beneficiary = Must NOT be ascertainable (must be general or charitable organization).
    • 2. Qualified--on the day qualification is determined he is:
    • --Current beneficiary--current taker.
    • --Intermediate Beneficiary--takes after current, without termination of trust.
    • --first in line remainder--takes principal upon termination of trust.
    • --descendant of first in line remainder--
    • * Entitled to:
    • () statutory modification/termination
    • () notice
    • () annual accounting
    • --any beneficiary can petition for removal of trustee.
  67. Purpose
    Any legal Purpose
  68. Writing

    Required if trust involves LAND or Testamentary Aspects in Revocable Trust.
    if trust involves LAND or Testamentary Aspects in Revocable Trust.

    • 1. Required for Funding
    • a) deed (transferring title)
    • b) signed by settlor;
    • c) witnessed by 2;
    • d) recorded in appropriate county;
    • e) acknowledged.

    • 2. Required for Creation
    • a) Written document evidencing the trust (terms/elements)
    • b) signed by settlor.
  69. Writing
    Revocable Personal Property Trusts

    • 1. Prove by Clear & Convincing Evidence.
    • 2. If NO testamentary Aspects.
  70. Irrevocable Trust of personal Property
    1. Clear and Convincing Evidence.
  71. Delivery
    the act that places the property out of the settlor's control.
  72. Trusts
    • 1. Express Trust
    • () Private
    • () Charitable
    • --honorary trusts (pet trusts; burial plot; etc..)

    • 2. Implied in Law Trust
    • () Constructive Trusts
    • --require unjust enrichment. (receipt of property through some inequitable means like wrongful conduct, or breach of confidential relationship).
    • () Semi-Secret Trust
    • --devise + oral promise to hold in trust for another.
    • --contrast w/ secret trust--devise to T in trust--with nothing more. (unenforceable)
    • () Resulting Trust
    • --where a gift in trust fails and is absorbed by the settlor's estate.
    • () Purchase Money Trust
    • --a gift is presumed if one pays for property +titles it in the name of a close family member.
    • --a purchase money trust is presumed if paid for by one and titled in the name of a non-related other.
  73. Reformation
    • 1. interested person can petition to reform a trust or will;
    • 2. if clear and convincing evidence;
    • 3. a mistake of law, fact or expression,
    • 4. affected the dead Settlor's intent;
    • 5. even if unambiguous on its face.
    • 6. even if contrary to express language.
  74. Homestead Protection extends to real property held in Revocable trusts
    • 1. Owned by Natural Person;
    • ()revocable trusts are owned by settlor b/c settlor can revoke at any time.
    • 2. Amount of Land
    • () in Municipality [1/2 acre, contiguous land, actual residence]
    • ()outside municipality [160 acres contiguous land + improvements]
    • 3. Protects property from forced sale
    • () except, mortgages, federal/state assessment or taxes, mechanics lien)
    • 4. Protects property descent for spouse and minor children.
    • 5. Enures to homeowner's heirs.
    • 6. Descent of homestead property must:
    • () if no minor children = devise to Spouse.
    • () if no spouse or minor children = devise to anyone (but lose protection if devised to non-heir).
    • () if property is not devised to spouse & no minor children exist = spouse gets life estate & living descendants get a vested remainder per stirpes.
    • --Spouse can elect to take undivided 1/2 interest as tenant in common instead.
  75. Undue Influece
    • 1. Exertion of control over mind of settlor/testator.
    • 2. overcoming free agency/free will;
    • 3. substituting the will of the testator/settlor;
    • 4. causing him to do what he otherwise would not have done.

    • Methods of Proving Undue Influence
    • a) Confidential Relationship Presumption
    • b) Suspicious Execution Circumstances + Unnatural Gift.
    • c) clear and Convincing Evidence.

    Prima Facie showing of Undue Influence shifts the burden of proof to the beneficiary to disprove the existence of undue influence.

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