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Wills & Trusts Final Checklist

WILLS:
WILLS GENERALLY:

Choice of Law
Ethical Issues in Will Drafting
The roles of testamentary formalities
Requirements of a Valid Will:
o 1. Capacity: LEGAL &
TESTAMENTARY
o 2. Testamentary Intent
o 3. Compliance with Statutory
Formalities.
Statutory Formalities for Wills
o 1. In Writing
o 2. Signed
o 3. Witnessed
Self-Proved Will
Holographic Wills
Dispensing with Formalities
o Harmless Error
o Substantial Compliance

WILL COMPONENTS:

Integration
Incorporation by Reference
Republication by Codicil
Acts (Events) of Independent Significance
Memorandum at Death/Separate Writing
Pour-Over Wills

WILL REVOCATION

WILL CONTEST THEORIES:

Improper Execution
Lack of Testamentary Capacity
o Lack of General Testamentary Capacity
o Insane Delusions
Lack of Testamentary Intent
Undue Influence
Fraud
Duress
Tortious Interference with an Expectancy
In Terrorem/No Contest Clauses

INTERPRETING THE WILL

Interpreting the Meaning of a Will


o Plain Meaning Rule
o Resolving Ambiguities: Patent or
Latent
o Mistake/Reforming Wills
Classification of Devises:
o Specific

o General
o Demonstrative
o Residuary
Lapse/Antilapse
o Simultaneous Death Rule
Sufficient Evidence Test:
120-Hour Rule
o Class Gift:
Changes in Property
o Abatement
o Ademption (By Extinction/Satisfaction)
o Accessions
Exoneration
o Apportionment
Disclaimers

Revocation by Subsequent Instrument


o Express
o Implied
Revocation by Physical Act
o Lost Will Presumptions:
Revocation by Changed Circumstances
o Revocation by Marriage
o Revocation for Omitted Children
o Revocation on Divorce
Homicide: Slayer Statutes
Impact of Revocation
o Partial Revocation
o Revival
o Dependent Relative Revocation

PROTECTING THE FAMILY

Surviving Spouses Elective Share


o 2 Theories of Marriage
o Community Property v. Separate
Property
o Traditional Approach
o Elective Share
o Years Support
Omitted Children

PLANNING FOR INCAPACITY:

Capacity v. Incapacity
o Functional Capacity
o Legal Capacity
What happens WITHOUT advance planning for
incapacity?
o 1) CONSERVATOR

Wills & Trusts Final Checklist


o 2) GUARDIAN
o 3) WARD
Procedure for Incapacitated Individuals:
Planning Mechanisms:

2
o

Financial
1) Financial Power of Attorney
2) Inter Vivos Revocable Trust
Health Care

TRUSTS:

INTRO:

Definitions
o Merger Doctrine
Mandatory v. Default Rules
CREATION OF TRUSTS
Elements/Requirements of a Trust:
o A valid purpose
o A competent settlor
o A trustee
o An intent to create a trust
o Property = Corpus (Res) + Delivery
o 1 or more beneficiaries.
Types of Trusts:
o Trusts for a Purpose:
Charitable Trusts
Pet Trusts
o Private Trust
o Inter Vivos Trust
o Testamentary Trust
o Revocable Trust
o Irrevocable Trust
o Oral Trusts
o Secret Trusts & Semi-Secret Trusts:
Secret Trusts
Semi-Secret Trusts
Remedies:
Constructive Trusts

Resulting Trusts

TRUSTEE RIGHTS/DUTIES:
Rights
3 Main Duties:
Acceptance of Trustee Position:
Resignation of Trustee
Trust Distributions
o Mandatory
o Discretionary
o Spray or Sprinkle Provisions

BENEFICIARY RIGHTS/DUTIES:
Duties
Types of Beneficiaries

RIGHTS OF CREDITORS:

With self-settled trusts can usually get access to


trust property
o Revocable Trust
o Irrevocable Trust
Where not self-settled may have to wait for
distributions
Spendthrift Clauses
o Ineffective against SUPER CREDITORS
Domestic Asset Protection Trusts:
o Georgia Choice of Law