Law Outlines Trust and Estates (Duke Twiddy) Outlines
Trust and Estates outline for Professor Twiddy from Duke...
The following is a more accessible plain text extract of the PDF sample above, taken from our Trust and Estates (Duke Twiddy) Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Note: stroken-through sections are covered in class but will not be tested in the exam.
I. Introduction 3
c. An estate planning problem p.981 4
d. Professional responsibility 5
II. Intestacy: An Estate Plan by Default 5
b. Basic structure of intestate succession 6
III. Wills: formalities and forms 12
d. Contracts relating to a will 19
IV. Capacity and will contests 19
e. Tortious interference [a tort claim] 22
a. Mistake or ambiguous language 23
b. Death of beneficiary before death of testator [SUMMARY p. 373] 23
VI. Trusts: characteristics and creation 26
VII. Nonprobate transfers and planning for incapacity 29
a. The rise of nonprobate succession 30
c. Will and other will substitute 31
VIII. Protection of the spouse and children 33
a. Protection of spouse from intentional omission 33
b. Intentional omission of a child 35
d. Protection against unintentional omission 35
IX. Trusts: fiduciary administration 36
d. Duty to inform and account 39
X. Alienation and modification 39
a. Alienation of beneficial interest 39
b. Modification and termination 39
a. Purpose, terminology and types of powers 40
e. Failure to exercise a power 43
XIII. Trust: construction and future interests 43
a. Future interests handout [can bring to exam] 43
XIV. Rule against perpetuity 43
a. Policy against remote vesting 43
XV. Parts of textbook not tested in exam 44
Three options:
Forced succession
Freedom of disposition
U.S. adopts this approach, tempered by certain mandatory succession rights for spouses and by wealth transfer taxation.
Confiscation by the state
Restrictions on freedom of disposition
Spousal rights
Creditors’ right
Unreasonable restraints on alienation or marriage
Shapira: requiring son to get married only with a Jewish girl is a valid condition
Shapira: a restraint unreasonably limits the transferee’s opportunity to marry if a marriage permitted by the restraint is not likely to occur
Unreasonable examples:
Forcing a gay man to get married with woman
Give house to the son if he burns the house down
Provisions promoting separation or divorce
Impermissible racial or other categoric restriction
Provisions encouraging illegal activity
Rules against perpetuities and accumulations
Incentive trusts
Encourage the beneficiaries to pursue an education
Religious beliefs
Encourage a productive career
Probate property is property that passes through probate under the decedent’s will or by intestacy. Property that the decedent held alone or as a tenant in common is subject to probate.
Probate: in one person’s name only
Non-probate: has a designated beneficiary or in two person’s name as joint owner.
Non-probate property is property that passes outside of probate by way of a will substitute. Non-probate succession has become the norm. see p.42 for examples:
Inter vivos trust: preferred type of trust
testamentary trust is probate
only intervivos trust is non-probate
Pay-on-death (POD) contracts
Life insurance: benefits will be paid to the beneficiaries selected by the insured.
transfer-on-death contracts (TOD)
Life estate is a type of TOD contract
Joint tenancy: joint tenants hold the property concurrently.
Right of survivorship: upon the death of one joint tenant, his fractional share is extinguished and the shares of the surviving joint tenants are recalculated.
E.g. tenant of entirety (it includes survivorship)
Probate terminology
Personal representative: oversees the winding up of the decedent’s affairs. When a person dies and a decision is made to probate his estate, someone—usually a family member—will petition a court in the decedent’s state of domicile to appoint a “personal representative” to handle the work.
Testate: die with a will
Executor: executor named in the will
Administrator: if no executor named, or dies intestate, court appoint an administrator
Person dying testate devise real property to devisee; and bequeath personal property to legatee
For persons dying intestate, real property descend to heirs and personal property distributed to next-of-kin
Is probate necessary?
Probate can be avoided provided the client during life arranges to transfer all of his property by way of nonprobate modes of transfer.
A look at the will
Standard language:
Declare to be my last will
Revoke any and all other wills
Article FIRST:
Yes it does. Required to pay off mortgage on the house. (it also depends on the state law)
Yes, need to pay tax
Article SECOND and FIFTH
No, in this case the court will appoint one
Article FOURTH
We don’t know
Article SIXTH
Not desirable
Additional Information on the family and their property
For purposes of this will, “my children” include Michael
Otherwise Michael would not receive anything
“grandchildren” include Andy
Trust provision: Candace can’t be trustee
We can also get a living trust and put the above information in a living trust to avoid putting them in a public record
Duties to intended beneficiaries
Protection against reasonably foreseeable harm
Conflicts of interests
An attorney, on commencing joint representation of co-clients,...
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Trust and Estates outline for Professor Twiddy from Duke...
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