Wills + Trusts

Flashcards based on lecture notes about Trusts and Estates

Is a definitive beneficiary always required for a valid express trust?

Yes, a trust must have an identifiable beneficiary to be valid.

What are the four requirements that give a testator capacity to make a will?

1. Understand the nature and extend of their property,

2. Know the natural objects of their bounty,

3. Know the nature of the act they are performing,

4. Understand how these elements relate to form a plan of disposition

A will is invalid for undue influence when these three factors are present:?

1. Confidential relationship,

2. Influencer participated in procuring the will,

3. Will includes unnatural provisions favoring the influencer.

A will may be revoked by physical act if the testator does what? (Two things)

1. Has the intent to revoke,

2. Performs a revocatory act (burning, tearing, crossing out, having someone else dispose of)

What are the six requirements for the creation of a valid trust?

1. Seller with capacity

2. Intent to create trust

3. Trustee with duties

4. Definite beneficiary

5. Trust property

6. Trust purpose

What is a Spendthrist trust?

A spendthrift clause prohibits both voluntary and involuntary transfers of a beneficiary’s interest. Creditors generally cannot reach trust assets until they are distributed, unless the claim is for alimony, child support, or necessaries.

Are trusts revocable?

Under the UTC and majority view, a trust is revocable by default unless it states otherwise. Upon revocation, the settlor may reclaim trust property and terminate the trustee's powers.

Will a trust fail if a named trustee dies, is removed, or resigns?

No. A court can appoint a new trustee to carry out the trust.

Is a trust created before it receives valid property?

No. A trust requires trust property to exist.

Do words like “hope” or “request” (precatory language) create a valid trust or legal obligation?

No. Such language is non-binding and insufficient to create a trust.

Is a promise to create a trust in the future enforceable if it is not a valid contract?

No. Without valid consideration, the promise is unenforceable.

Can a person be both the sole trustee and the sole beneficiary of a trust?

No. This would merge legal and equitable title, defeating the trust.

What are the requirements for a valid attested will under the majority rule?

The will must be (1) in writing, (2) signed by the testator, and (3) witnessed by two individuals who sign in the testator’s presence.

Who has legal and equitable title in a trust?

✅ Legal Title

• Held by the Trustee

• The trustee has legal ownership of the trust property.

• This means the trustee has the authority and duty to manage, invest, and distribute the property according to the terms of the trust and fiduciary obligations.

• The trustee is not allowed to use the property for personal benefit (unless authorized by the trust).

✅ Equitable Title

• Held by the Beneficiary

• The beneficiary has the right to benefit from the trust property — this is the equitable interest.

• While the beneficiary can’t control or sell the trust assets directly, they can sue the trustee for breach of fiduciary duty if the assets are mismanaged.

Under the Majority View/UTC, is a trust presumed revocable unless it states otherwise?

Yes. Revocability is the default unless expressly made irrevocable.

Can irrevocable trusts typically be modified or revoked, except in limited circumstances?

No. Modification requires specific authority or beneficiary consent.

Does a testamentary trust take effect immediately upon its creation?

No. It becomes effective only upon the testator’s death.

Must the essential trust terms (beneficiaries, purpose, and trust property) be stated in the will for a testamentary trust?

Yes. The trust must be complete in the will to be valid.

Does a pour-over provision itself create a trust?

No. It simply directs assets into a preexisting trust.

Is a pour-over provision required to be connected with a previously created inter vivos trust?

Yes. The inter vivos trust must already exist or be created concurrently.

Does the Rule Against Perpetuities apply to charitable trusts?

No. Charitable trusts are exempt from RAP due to their public benefit.

If a charitable trust fails to state a specific trust purpose or beneficiary, does the trust fail?

No. Courts will try to uphold the trust using general charitable intent.

Are illusory trusts generally considered valid?

No. They lack the intent to create an enforceable fiduciary duty.

Is a resulting trust implied by law if a trust fails for lack of a beneficiary?

Yes. Courts impose a resulting trust to return property to the settlor.

Must a trustee's exercise of discretion in a discretionary trust be in good faith?

Yes. Trustees are held to fiduciary standards.

Does a pure support trust give the trustee discretion over payments to the beneficiary?

No. Payments are limited to the beneficiary’s support needs.

If a discretionary support trust has an ascertainable standard, can a beneficiary bring an action to compel payments?

Yes. Beneficiaries can enforce rights tied to the standard.

If a testamentary trust fails and there is no applicable residuary clause, does the trust property pass to the settlor’s heirs by intestacy?

Yes. The property reverts to the estate and passes accordingly.

What is the cy pres doctrine?

When the original purpose of a charitable trust becomes unlawful, impracticable, or impossible to achieve, a court may modify the trust “as near as possible” to the settlor’s intent, so long as the settlor had a general charitable intent.

Does the Cy Pres Doctrine apply only if the testator had a general charitable intent?

Yes. Courts won’t modify the trust unless general intent is evident.

For a spendthrift provision to be valid, must it restrain both voluntary and involuntary transfers?

Yes. Full protection requires restrictions on all transfers.

Do spendthrift trusts provide protection for mandatory distributions of trust property?

No. Once a distribution is due, creditors may claim it.

Can a creditor typically reach a beneficiary’s spendthrift trust interest, without exception?

No. Spendthrift clauses generally block such access.

Can a creditor collect from a beneficiary of a spendthrift trust only after a payment is made, unless an exception applies?

Yes. The protection ends once funds are distributed.

In a discretionary trust, can a creditor compel a distribution subject to the trustee’s discretion?

No. A creditor cannot force a discretionary distribution.

Can a trustee use trust property to pay income beneficiaries when trust income is insufficient without an express or implied power of invasion?

No. The trustee must have specific authority to invade principal.

May a court permit invasion of trust principal if it adversely affects other beneficiaries?

No. Courts typically protect remainder interests unless authorized.

Under the Majority View, can a settlor modify a trust if they have not expressly reserved the power to do so, or have the power to revoke or amend?

Under the Uniform Trust Code (UTC) (and most modern states following it), the default rule is that a trust is both revocable and modifiable by the settlor unless the trust expressly says it’s irrevocable.

Under the Uniform Trust Code (UTC), can a trust be modified if the settlor and all beneficiaries consent?

Yes. Consent from all interested parties permits modification.

Does the Equitable Deviation Doctrine allow modification of a trust's terms if continuing the trust is impractical or wasteful and the modification furthers the trust purpose due to unanticipated circumstances?

Yes. Courts can modify a trust to fulfill its purpose.

Under Common Law, could only administrative provisions of a trust be modified by a court using the Equitable Deviation Doctrine?

Yes. Courts were limited to modifying non-substantive terms.

Under the UTC, can a trust be terminated if its material purpose is achieved?

Yes. There’s no reason to continue a fulfilled trust.

Under the UTC, can a trust be terminated if all beneficiaries consent and a court decides continuance is not necessary to achieve any trust purpose?

Yes. Courts will approve termination in such cases.

Are trust provisions prohibiting a first marriage generally considered void against public policy?

Yes. Such conditions are seen as invalid restraints.

Is a restraint on re-marriage generally upheld?

Yes. Courts may enforce reasonable restraints on remarriage.

Under the UTC, is a trustee required to administer the trust in good faith and in the interests of the trust beneficiaries?

Yes. This is a core fiduciary duty.

Is a trustee generally permitted to engage in self-dealing?

No. Self-dealing is a breach of loyalty.

Is a transaction entered into by a trustee for their own benefit automatically presumed to be a conflict of interest under the No Further Inquiry Rule?

Yes. Such conduct triggers strict scrutiny.

Does a trustee have a duty to act impartially when managing and distributing trust property?

Yes. All beneficiaries must be treated fairly and equitably.

Is a trustee liable for an agent’s actions if they exercised reasonable care, skill, and caution in selecting, establishing terms for, and monitoring the agent?

No. Trustees are not liable if due diligence was performed.

For a revocable trust, does the trustee owe duties to the beneficiaries during the settlor’s lifetime?

No. The settlor retains control while alive.

Is a remainder beneficiary of a trust entitled to receive trust property before the termination of the trust?

No. They must wait for the trust to end.

Do most states apply anti-lapse statutes to trusts?

No. These statutes more commonly apply to wills.

Is a vested remainder an interest where there are contingencies or conditions on survivorship?

No. A vested remainder is not subject to future conditions.

Can a future remainder interest be accelerated if the present holder disclaims their interest?

Yes. A valid disclaimer may shift or accelerate the interest.

Is a power of appointment considered a General Power of Appointment if the donor leaves no conditions or restrictions for the appointment of property?

Yes. The donee has unrestricted authority over the property.

Can a donee appoint property to himself, his estate, his creditors, or his estate’s creditors under a Special Power of Appointment?

No. Special powers limit who may receive the property.

Are appointments to non-authorized persons or groups under a power of appointment deemed ineffective?

Yes. Appointments outside the scope are invalid.

Under the common law Rule Against Perpetuities, must a gift vest within a life in being at the time of the grant plus 21 years?

Yes. RAP ensures property does not remain unvested indefinitely.

What is the doctrine of dependent relative revocation (DRR)?

DRR cancels a revocation if it was based on a mistaken assumption that another disposition would be effective, and ignoring the revocation better aligns with the testator’s intent.

What happens to a specific gift that is no longer part of the estate at the testator’s death?

It is adeemed (fails) unless the jurisdiction (e.g., UPC) allows a replacement asset or traceable value to pass to the beneficiary.

What is an anti-lapse statute, and when does it apply?

It allows a predeceased beneficiary’s gift to pass to their descendants if the beneficiary was a close relative of the testator and left issue.

In what order do gifts abate if the estate lacks sufficient assets?

First residuary gifts, then general gifts, then demonstrative gifts, and finally specific gifts—pro rata within each class.

What are the requirements to create a valid trust?

A valid trust requires (1) a settlor with intent, (2) identifiable beneficiaries, (3) trust property, (4) a valid purpose, and (5) delivery if not self-declared.

What is the difference between a general and a specific testamentary gift?

A general gift is paid from the general estate (e.g., $10,000), while a specific gift refers to a particular item (e.g., “my gold watch”).

What is the per capita at each generation method under the UPC for intestate succession?

The estate is divided equally among the closest surviving generation, and any remainder is pooled and divided equally among the next surviving generation.

When does a divorce revoke a provision in favor of a former spouse in a will?

In most jurisdictions, divorce automatically revokes all gifts and fiduciary appointments to the ex-spouse, unless the will explicitly states otherwise.

What is the cy pres doctrine in charitable trusts?

If a charitable trust’s original purpose becomes impracticable or impossible, a court may modify the trust to fulfill a purpose as close as possible to the settlor’s original intent.

What is a holographic will?

A holographic will is a will that is handwritten and signed by the testator, which does not require witness signatures to be valid in many jurisdictions.

Give a few examples of non-probate assets?

Life insurance, Trust property, Retirement accounts (with a beneficiary)

When can a memorandum be incorporated into a will?

✅ 1. The will refers to the memorandum and shows intent to incorporate it.
✅ 2. The memorandum exists at the time the will is executed (under traditional doctrine) or is allowed by statute after execution (in some states).
✅ 3. The memorandum describes the items and beneficiaries with reasonable certainty.

Explain the difference between per stirpes and per capita?

Per stirpes distributes assets by branch of the family, while per capita distributes assets equally among living descendants.


Per stirpes Example -
✅ Example:

• T leaves estate “to my descendants, per stirpes.”

• T has 3 children: A, B, and C.

• A is alive. B is deceased (with 2 children: B1 and B2). C is deceased (with 1 child: C1).

💰 Distribution under Per Stirpes:

• A gets 1/3 (their original share).

• B’s 1/3 share is divided equally between B1 and B2 → B1 = 1/6; B2 = 1/6.

• C’s 1/3 share passes to C1 → C1 = 1/3

Per Capita Example -

✅ Same Example:

• T leaves estate “to my descendants, per capita.”

• Living descendants: A (child), B1, B2 (grandchildren), C1 (grandchild).

💰 Distribution:

• Estate divided equally among A, B1, B2, and C1 → each gets 1/4.

📌 Key: Completely ignores branches—each living descendant gets an equal slice.

Explain Modified Per Stirpes

This method of distribution allows shares to pass down to grandchildren if a child predeceases the decedent, ensuring that the inheritance is divided among the branches of the family while also considering the descendants.

✅ Same Example:

• T leaves estate “to my descendants, per capita at each generation.”

• A alive. B deceased (B1, B2). C deceased (C1).

💰 Distribution:

• A gets 1/3 (alive at first level).

• B and C’s shares are pooled (2/3) and divided equally among their children.

• B1, B2, C1 each get 2/9 of the total estate.

Explain the order of intestate distribution by type of relationship?

1. Spouse

2. Children

3. Parents

4. Siblings

5. Extended Family Members

What is a power of appointment and the difference between specific and general power of appointment?

✅ General Power of Appointment: A general power of appointment allows the holder to appoint property to anyone, including themselves, their estate, or their creditors, and is treated as ownership for tax and estate purposes.

✅ Special Power of Appointment: A special power of appointment limits the holder’s ability to appoint property to a specified class of persons and excludes the holder, their estate, or their creditors, avoiding ownership treatment.