Wills and Trusts Law Outline

Comprehensive vocabulary flashcards outlining core principles, formalities, doctrines, and remedies across Wills and Trusts law.

Holographic Will

A will that does not comply with regular statutory formalities but qualifies as valid if the signature and material provisions are all in the testator's handwriting.

Interested Witness

A witness who receives a devise under the will, creating a rebuttable presumption that the witness procured the devise by duress, menace, fraud, or undue influence unless there are two other uninterested witnesses or the devise is made solely in a fiduciary capacity.

Fraud in the Execution

A form of fraud that occurs when a testator is unaware they are signing a will or the will is forged by another, resulting in the entire will being invalid.

Fraud in the Inducement

A form of fraud where a wrongdoer influences the testator through misrepresentations to include provisions in a will, rendering only those particular fraudulent provisions invalid.

Undue Influence (Common Law)

A basis for invalidating a will established when the testator was Susceptible to influence, the beneficiaries had Opportunity to influence the disposition, the testator left an Unnatural disposition, and the beneficiaries were active in Procuring the disposition (mnemonic: SOUP).

California Statutory Undue Influence

Undue influence defined as excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity, proven by circumstantial factors including vulnerability, influencer's authority, and actions of the influencer.

Integration

A doctrine providing that separate papers are integrated into a will if they were present at the time of execution and the testator intended them to be part of the will.

Incorporation by Reference

A doctrine permitting an extrinsic writing outside the will to be incorporated if the writing existed at the time the will was executed and the will manifests the intent to incorporate it and sufficiently describes the writing so that it is identifiable.

Acts of Independent Legal Significance

A doctrine allowing a will to dispose of property by reference to acts and events that have independent legal significance and non-testamentary purpose apart from their effect in the will.

Codicil

An amendment to an existing will made by the testator to change, explain, or republish their will, which must meet the same formalities as a will or holographic will and republishes the will as of the codicil's date.

Pour-Over Will

A will that identifies a trust created by the testator into which probate assets are poured over to avoid probate if assets are less than $\$184{,}500$ (as of 2025), provided the trust was executed concurrently with, before, or within $60$ days after the will execution.

Dependent Relative Revocation (DRR)

An equitable doctrine applied where a testator revokes a first will under the mistaken belief that a substantially similar second will or codicil would be effective; the court disregards the revocation and revives the first will if the testator would not have revoked it but for the mistake.

Specific Gift

A testamentary gift of specific, identifiable property within the estate (e.g., specific diamond earrings, a designated beach cottage, or a specific stock portfolio).

Demonstrative Gift

A testamentary gift that is general in nature but specifies the particular property or fund from which the gift should be made.

Residuary Gift

A gift comprising whatever remains of the estate after all other gifts have been satisfied and debts and taxes are paid.

Ademption by Extinction

The failure of a specific gift because the specific item identified in the will is no longer owned by the testator or part of the estate at the time of death, causing the purported devisee to take nothing.

Ademption by Satisfaction

The fulfillment of a testamentary gift during the testator's lifetime because the will provides for deduction, the testator or beneficiary declares satisfaction in writing, or the same property was given to the beneficiary during life.

Abatement

The reduction or elimination of testamentary gifts to enable the estate to satisfy debts and legacies that it would otherwise be unable to pay.

Exoneration

The paying off of an encumbrance (such as a mortgage or loan) on gifted property using estate funds so that the devisee receives the property free and clear.

Anti-Lapse Statute

A statutory rule preventing a predeceased beneficiary's gift from lapsing by passing the gift to the beneficiary's issue, applicable if the predeceased beneficiary is kindred of the testator or kindred of a surviving, deceased, or former spouse.

Widow's Election

A doctrine allowing a surviving spouse or domestic partner to elect between taking under the decedent spouse's will or taking their statutory share of community and quasi-community property when the decedent attempted to dispose of more than their half share.

120-Hour Rule

A requirement for intestate succession providing that an heir must survive the decedent by at least $120$ hours to inherit, or they are deemed to have predeceased the decedent (unless doing so causes an escheat to the state).

Advancement

An inter vivos transfer of property from an intestate decedent to an heir that is treated as an advance against that heir's intestate share only if declared by the decedent and acknowledged by the heir in writing.

Per Capita at Each Generation (Probate Code § 247)

A distribution scheme where the first generation with living takers receives an equal share for each person, and the shares of all deceased persons at that level are combined and divided equally among takers at the next generational level.

Modern Per Stirpes (Probate Code § 240)

Also called per capita with representation; makes an equal distribution at the first generational level with living heirs, with the living issue of any deceased heirs at that level splitting their deceased parent's share equally.

Strict Per Stirpes (Probate Code § 246)

A distribution method that divides the estate into equal shares at the first generation below the decedent that contains surviving heirs or deceased heirs who left living issue, with issue sharing their parent's share equally.

Trust

A legal relationship in which a trustor gives a trustee the right to hold legal title to property under a fiduciary duty to manage, invest, and safeguard trust assets for the benefit of designated beneficiaries.

Secret Trust

A trust that arises when a testator leaves a gift absolute on the face of the will without mentioning a trust, but does so in reliance on the recipient's promise to hold the property in trust for another.

Semi-Secret Trust

A testamentary disposition that leaves a gift in trust on the face of the will but fails to name the trust beneficiary, which the majority of jurisdictions declare invalid and subject to a resulting trust.

Spendthrift Trust

A trust containing provisions preventing the beneficiary from voluntarily or involuntarily alienating their interest and protecting the trust corpus from creditors, with exceptions for necessaries, child/spousal support, and government claims.

Support Trust

A trust directing the trustee to make limited distributions solely to pay for the beneficiary's support, health, maintenance, or education, insulating assets from creditors to the extent access would interfere with support.

Discretionary Trust

A trust granting the trustee full discretion regarding whether to distribute or withhold payments, principal, or income to the beneficiary.

Cy Pres Doctrine

An equitable doctrine applied when a charitable trust's objective becomes impossible or impracticable to fulfill, allowing the court to substitute another similar charitable object as near as possible to the settlor's intent.

Honorary Trust

A trust lacking a private ascertainable beneficiary and a charitable purpose, generally invalid except when established to care for pets or maintain cemetery plots.

Totten Trust

A bank account trust where the depositor (settlor) places money in an account with instructions that the named beneficiary takes whatever remains upon the depositor's death.

Resulting Trust

An implied-in-fact trust based upon the presumed intent of the parties that reverts legal title of property back to the settlor or their estate when an express trust fails, ends, or is illegal.

Constructive Trust

An equitable remedy imposed by a court to prevent unjust enrichment in cases of wrongful conduct, such as breach of fiduciary duties, self-dealing, fraud, or undue influence.

Uniform Prudent Investor Act (UPIA)

A standard adopted in a majority of jurisdictions measuring a trustee's investment performance in the context of the entire trust portfolio as a whole and as part of an overall investment strategy with risk and return suited to the trust.

Trust Income Allocation

The allocation of interest, cash dividends, and net business income to the income beneficiary, who is responsible for paying interest on loan debt, ordinary taxes, and minor repairs.

Trust Principal Allocation

The allocation of net proceeds from asset sales, stock dividends, and stock sale profits to the remainderman, who is responsible for paying principal loan debt and major repairs.

Surcharge

A legal remedy holding a trustee personally liable for any resulting loss to the trust caused by their breach of trust, without allowing the trustee to offset losses with gains from other breaches.