Wills And Trusts Outline - © 1999 John M. Thompson
Created for Professor Gerry
Beyer’s Wills, Trusts, and Estates class, Fall 1999
Santa Clara University
School of Law
I..
Intestate Succession
A.. Surviving Spouse
Types
of law:
1.. common law
a.. distinction was made
between real and personal property
i.. real property - spouse was not an heir and could
not take by intestacy because spouse
was not a blood relative
ii.. personal property - husband took all personal
property as soon as marriage occurred; if husband died first, the wife could
inherit some of the property
2.. modern law
a.. surviving spouse is made and heir and can now
take by intestacy
b.. states have protections for surviving spouse
i..
statutes that prevent spouse from being cutout of the will
ii..
homestead right - right to occupy home for a particular period of time
3.. marital law
a.. common law used in most
states - no marital property
b..
community property (CA system) - when property is acquired
through marriage it is split
fifty/fifty
CA Law
1..
type of property makes a big difference in distribution
a.. community property - property acquired during
marriage while domiciled in CA or another community property jurisdiction
i.. CA - surviving spouse keeps half of property and
inherits deceased spouses property; same as saying spouse gets all community
property
ii.. quasi community property - property acquired
during marriage that would have been community property has they been domiciled
in CA
a)
applies
to personal property where ever located, as well as real property located in CA
b)
restoration
of community property - surviving spouse can force a person to return property
if it was fraudulently transferred before the spouse died; four requirements
for restoration
1)
deceased
spouse must be domiciled in CA at time of death
2)
deceased
spouse did not receive consideration for substantial value for transfer
3)
surviving
spouse did not consent or join in writing
4)
deceased
spouse still had some benefit of property
iii.. separate property - property owned before
marriage; property acquired during marriage by gratuitous transfer (EX: inter
vivos gift, inheritance); profits and income from separate property even if
earned during marriage
a)
surviving
spouses’ share depends on family situation:
1).. surviving spouse gets all - if no issue, no
surviving parent, and no surviving descendants of parents
2).. surviving spouse gets half - if deceased spouse
had one surviving spouse or children of deceased child (???), or the deceased spouse did not have
any descendants but did have at least one parent surviving or a niece or nephew
3).. surviving spouse gets one third - where there
are two or more bloodlines of descendants surviving (would have had to have had
at least two children at some point in time)
2.. surviving spouse can
waive all inheritance
a.. must be in writing and
signed by the surviving spouse
b.. see Section 140 - 147 for
more information
B.. Descendants
1..
general rules
a..
if no surviving spouse, descendants take everything
b..
if there is a surviving spouse descendants take everything the surviving
spouse does not take
c.. CA prefers parents to siblings, grandparents to
aunts and uncles, and cousins
2.. ways to divide property
a.. per stirpes (by the roots, or by right of representation)
- divide into shares based on the number of living children and deceased
children
i.. does
not matter that no one in that generation did not survive
ii.. create a share with every living descendant and every
deceased
descendant with
surviving descendants
b.. per capita with representation - divide into
shares at first generation with a surviving member
i.. this attempts to treat equally related people equally
c.. per capita at each generation (this is the UPC
approach and CA approach) - divide everything at the first generation and then
keep dividing the further generation’s shares
i..
divide at first generation with survivors
ii.. if
unmarried and no kids - goes half to each parent, or all to one parent
if other parent is dead (CA)
iii.. if no parents living -
divide equally between all living grandparents
iv.. great-grandparents and
their descendants take next
v.. if no one at all -
property to deceased spouse’s parents
C.. Ancestors and Collaterals
D.. Escheat - goes to state if no one is left to
take
E. Posthumous Heirs - a child conceived while person
alive, but born after death
1.. many
states will not allow posthumous heirs to inherit
2.. CA
allows ALL posthumous heirs to inherit
F.. Adopted Individuals
1.. how
adopted child inherits from adopted parents:
a..
just like a biological child
b..
inherits from a through the adoptive parents
c..
would inherit from grandparents and others just like a biological child
2.. how
adopted child inherits from biological family:
a..
states vary
b..
CA view:
i.. presumption that the adopted child does NOT
inherit from or through biological parents
ii.
EXCEPTION: if child and biological parent live together as parent and
child; OR either adopted by stepparent or the death of the natural parent after
the death of a biological parent (???)
3.. who
would inherit from adopted child, if child had no spouse or descendants:
a.. generally adopted parents and family inherit
from and through the adopted child,
just as if the child were biological
b.. states vary on
inheritance rights of biological parents:
i.. CA is middle of the road approach
a).. presumption that biological parents do not
inherit from or through biological parents
b).. EXCEPTIONS: full blooded siblings will only
inherit if the adopted child could have inherited from the biological parents;
if the child could inherit from the biological parent, and the adoption is by
the spouse or the surviving spouse then the biological parents can inherit from
the child
4.. types of adoptions
a.. statutory adoption
(formal, legal adoption)
b.. adoption by estoppel
(equitable adoption)
i.. child lived with family, but was never officially adopted
ii.. shares in the state as a child would,
but is not an officially an
adopted child
c.. adult adoption
i.. in CA can only have an adoption of a younger
person by an older person
G.. Non-marital Children (wedlock)
1..
generally
a.. up until 1977 could not
inherit from anyone
b.. in Trimble v. Gordon the USSC said there cannot
by differences in inheritance based on marital status
c.. the next year, 1978, the USSC narrowed this,
said it is okay to discriminate in some circumstances
2.. CA law
a.. no discrimination in regard to Mother; just need
proof that the mother gave birth to the child
b.. father is treated differently; there are
situation in which paternity is presumed
i.. born during marriage or an attempted marriage or 300 days
thereafter
ii.. the father marries the mother after child is born, and the
father is
named as father on birth
certificate, or the father pays child support
iii.. the father receives the child into his home
and holds the child out as his biological child
iv. child can try to show natural parantege also by
a)..
through court of paternity
b).. have
a court judgment after father’s death (need clear and convincing evidence that
the father openly held the child out as his own)
H.. Children from Alternate Reproduction
1..
artificial insemination
a..
mother is the birth mother
b..
some question as to the father: if the donor is also the husband, then donor
is the father, but if not,
the donor is not the father
c.. the woman who intended to procreate the child is
the one who becomes the mother
I.. Stepchildren and Foster Children
1..
stepchild - child of spouse that you have not adopted and is not yours
2..
foster child - parent is unrelated to parentlike figures, but child was put
there
by a government agency
a.. most states say foster children do not have right to
inherit
b.. CA view; three ways that a step child might be able to
inherit
i.. to be determined
to be a real child - then step or foster child will be
treated just like biological
child
ii.. continued during joint
lifetimes
iii.. equitably adopted
child
J.. Half-blooded Collateral Heirs
1..
Scottish rule - half bloods take half as much (majority view)
2..
half-bloods do not take at all, unless there are no whole bloods to take
(minority)
3..
modern view - half or whole blood does not matter
K.. Non-United States Citizens
1.. common law - could not inherit from
non-citizens; also real property could not be passed to aliens
2..
United States - usually no restrictions
a..
anyone can take regardless of citizenship
b..
no person is disqualified to take as an heir because that person or a person
through whom he or she
claims is or has been an alien
L.. Unworthy Heirs
1..
forfeiture - if convicted of certain crimes, the state can take your property
2.. civil
death
a..
treated as civilly dead in situations; smaller than forfeiture
b..
property would go to heirs
3..
murder of person that you would inherit from
a..
policy - do not want people to benefit from evil conduct
b..
CA has two part test to trigger statute
i.. felonious killing
ii.. intentional killing
4.. if
statute is triggered then killer is deemed dead for purposes of inheritance
a..
unclear as to where the property goes
b..
do not know if killer is treated as merely being dead, or treated dead
without any descendants
(unresolved in CA)
c..
there must be proof of the felonious killing; can be proved several ways
i.. gets charged and goes to jail
ii.. killer is convicted
iii.. preponderance of the evidence shows
that the murder was felonious
and intentional (can be
guilty even if not convicted in criminal court: OJ)
d..
types of crimes
i.. voluntary manslaughter - felony and
intentional; killer may not inherit
ii.. involuntary manslaughter - no intent
to kill; killer may inherit
iii.. insanity - no intent; killer may
inherit
iv.. self defense - intentional, but
non-felonious; killer may inherit
e..
suicide - does not effect who inherits (at common law property went to
state; common law user to
call this “persons who destroy their lives”)
f..
failure to support and acknowledge wedlock child
i.. biological parent cannot inherit
unless the parent acknowledges and
cares for the child
ii.. modern trend imposes this requirement
on all parents in order to inherit
from their children
g.. commit adultery or abandon spouse - CA does not mind; can still inherit
h..
abusing elder or dependant adult
i.. cannot inherit if convicted of a crime
related to abuse; OR
ii.. cannot inherit if person meets the
following four elements:
a).. heir abused intestate (by clear and
convincing evidence of abuse;
can also be financial abuse)
b).. can show heir acted in bad faith
c).. reckless, oppressive, fraudulent, or
malicious
d).. after abuse, person did not recover
M.. Ancestral Property
1.. history
a.. developed from common law policy of keeping real
property in the blood line of the original owner
b.. applies if an individual inherited real property
and then died intestate without surviving descendants or first line collateral
relatives
c.. has never been applied
to personal property
d.. almost all states have
rejected this doctrine
e.. under modern law the intestate decedent is
treated as the original purchaser of all property the intestate owns at time of
death
2.. CA law - where property goes that you acquired
from a predeceased spouse when you die (§ 6402.5)
a.. must die with no descendants and no new spouse;
other wise this statute does not apply
b..
applies to all property you acquired from the predeceased spouse
c..
real property - go back 15 years (if predeceased died within 15 years of
your death)
d.. personal property - go back 5 years (if
predeceased died within 5 years of your death)
e..
only applies if in total there is $10,000 or more remaining
3..
intestate distribution scheme (CHECK THIS ??? APPLIES HOW?)
a..
property goes to the descendants of the predeceased spouse (stepchildren)
b..
no stepchildren the property goes to parents of the predeceased spouse
c..
if no parents. Then descendants of predeceased spouse (brother in law, etc)
d..
descendant’s next of kin are next; in none, then look to more distant
relatives of the predeceased
spouse
N.. Advancements - prepayment of inheritance while
the intestate was still alive
1.. common law
a.. intended as early inheritance, then advancee
would have to make an accounting of the money received
b.. must account for money received before person died
c.. this accounting process is called “going into hotchpotch”
2.. modern law
a.. most states, including CA, have reverse
presumption: presumption is that the “advancement” is an absolute gift;
everything we receive is a gift and not intended to be an advancement
b.. an advancement is an irrevocable gift; does not
create a debt or a condition precedent to sharing in the estate
c.. gift is valued at date of the gift
3.. CA requirements for a
gift to be an advancement
a.. must be in writing
b..
contemporaneous writing by advancer (person giving the gift; because
don’t want person to change mind)
c.. writing is also signed by advancee; can be introduced at
any time
d..
advancement applies to all, not just descendants (like some states); also
people like brothers and
sisters
e.. applies to all types of intestacy (all or partial
intestacy)
O.. Survival
1.. CA
rules
a.. must have survived at least 120 hours after the
decedent died in order to take under his will
b.. must be able to show by clear and convincing
evidence that the person survived
c..
talked about Kennedy airplane crash as an example
P.. Disclaimers - reasons a person might not want to
inherit property
1.. if
taxes exceed value of property
2..
environmental risk
3.. moral
or religious reasons (don’t want to benefit from death of deceased)
4.. can avoid taxes by disclaiming the property
(parents can disclaim and have the property pass directly to children; usually
only worth it if $600,000 or more)
5.. CA
disclaimer rules
a..
disclaimer must be in writing and signed by disclaimant
b..
must identify in document what items are being disclaimed
c..
disclaimer must be filed
i.. must be filed with a reasonable time after you
discover you are going to inherit (under Federal law, must disclaim within 9
months of death
ii.. if disclaimed within 9 months it is presumed to
be timely. A reasonable time can never
be shorter than 9 months ***
iii.. must be filed with the Superior Court or with
the administrator of the estate, or anyone else having legal title or interest
d..
one property is disclaimed, can’t revoke
6.. if property is disclaimed it is as if you
predeceased the intestate; a disclaimer is not an assignment (disclaimant can
not determine where the property goes)
7.. can
disclaim property coming under a will just like you can under intestacy
Q.. Assignment or Release of Expectancy
1..
people do not have a right to inherit
2.. the
expectancy to inherit from someone who is alive does not create a property
right
3..
although you cannot assign the expectancy you can make a contract
a..
contract to give someone whatever you inherit
b..
can also make a binding contract to sell your expectancy, but cannot
actually transfer it
c..
risk is very high; extremely speculative
R.. Equitable Conversion
1.. occurs in situations when real is treated as
personal or personal treated as real property
2.. heirs of real and personal property in CA are
the same; equitable conversion is not an issue here (not like this in all
states)
S.. Liability for Predeceased Intermediary’s Debts
1..
situation: intestate that was creditor; child was debtor - child dies insolvent
2.. the
child of insolvent does not get a smaller share because the debt was unpaid;
shares of debtor’s issue are not made smaller to
compensate for debt; inheritance goes directly to heir of intestate - not
through estate of pre deceased intermediary
T.. Heir Designation
1.. in OH
and AK you can name anyone you want as an heir
2.. CA
does not have this
3.. this
solves problems for non-maritals who want to share property
U.. Choice of Law
1.. personal property - jurisdiction
is domicile of decedent at time of death; can be domiciled somewhere other than
where you are located at time of death
2.. real property - situs (state
where real property is located)
II..
Wills -
transfers nothing, creates only an expectancy; can give away separate property,
half community, half of quasi community; a will is a document that transfers
property that takes affect at death (unlike a deed with takes affect when
executed); can leave property to anyone legally entitled to hold title to
property
A.. Elements for a valid will
1.. Legal Capacity - the legal
status necessary to execute a will; in CA:
a.. have to be at least 18; OR
b.. a conservator may make a
will with the consent of the court
i.. people not of sound mind can have a conservator
ii.. minors can have a conservator
(a).. CA does not have a probate statute that allows
a married minor to have a will; however it is allowed under the Family Code
2..
Testamentary Capacity - have a sound mind
a.. understand nature of testamentary act
(understand that a will controls what happens to their property when they die;
do not need to know it is called a will)
b.. understand and recollect the nature of their
property
c.. understand and know who will get their property
d.. age does not matter
e.. testamentary capacity is easier to get than
contractual capacity because there is only one person involved (testator)
3.. Testamentary Intent - testator intended for the
actual document being signed to be a will
a.. typical cases that arise:
i.. letter cases - person writes a letter to
attorney or child saying what they want to do with their property; letters are
not wills - usually just letter of instruction
ii.. sham will cases - wrote a will for a hazing
event for a fraternity
iii.. specimen will - just a rough draft of a will
b.. must keep in mind intent when considering
whether the above examples would qualify as wills
4.. Formalities
a.. Generally
i.. four basic policies
(a).. ritual / cautionary function - demonstrate that the
testator was
serious about making a will; not just an idle
thought; testator was serious and deliberate
(b).. evidentiary function - create evidence of
testator’s intent; helps show what
actually happened and reduces chance of forgery; generates evidence
(c).. protective function - by requiring all the
technicalities it makes it harder for a will to exist that the testator did not
really want
(d).. channeling function - confidence that a
testator gets after going through the ceremony; gives the testator greater
assurance that his desires will be carried out
ii.. there has been a trend over tine for loosening the
formalities
iii.. CA is in the middle in regard as to the range or
formalities required
iv....Types of wills
(a).. attested will - will that has witnesses
(b).. holographic will - a will in the testator’s own
handwriting
(c).. cupative will - oral
will
(d).. statutory will - form of the will is contained in state
statute
(e).. soldiers’ and seamen’s wills - CHECK
b.. Formalities for attested
will (in writing, signed, witnessed)
i.. will must be in writing (therefore CA does recognize
cupative wills
(a).. language the will is in is irrelevant as long as it can
be accurately
translated
(b).. recommended to use standard paper, permanent ink, English
ii.. will must be signed
(a).. ways to satisfy this requirement:
(i).. testator - signature need not be a fill name;
just something made with the present intent to indicate a writing (although
recommended to use person’s full name)
1). Requirements for use of
a mark in CA -
a)..
testator must not be able to write his name
b)..
testator’s name must be written near the mark by a
witness (witness writes the name of the person that
cannot write and their own name)
c)..
most states do not have this requirement; harder to use
a mark in CA
(ii).. proxy - someone else signs signature for you
(want people that could not write to be able to make a will
1).. requirements for a proxy in CA -
a).. must be made in testator’s presence and with
their direction
b).. no requirement that the testator be unable to
write (unlike the mark requirement)
(iii).. conservatorship - can get court permission
to make a will for a person that lacks capacity
1).. requirements for conservatorship in CA -
a).. no
requirement where signature has to be
b)..
many states require that the signature be at the end of
the page (this is recommended for CA and that the
testator and witnesses should initial every page)
iii.. will must be witnessed; requirements:
(a).. at least two witness are required
(b).. in CA minimum age of witnesses is not specified but
recommended that they be 18
years or older
(c).. witnesses must be able to testify before a court
(i).. must know significance of oath to tell the
truth and know the difference between the truth and a lie
(ii).. witnesses must know they are witnessing a will
1).. this is known as publication
2).. this formality is rare in the USA, but CA has
retained it
3).. witnesses do not need to know the
contents of a will
4).. testator or attorney should say “this is a
will”
(d).. order in which people sign is important; three
ways/views:
(i).. strict/English view - witness must sign after the
testator
(makes more sense is the logic; causes problems
because some attorneys are not careful about order in which the will is signed)
(ii) American view/continuous transaction view - as long
as
signatures are affixed to the will at the same time,
as part of a continuous transaction, the will is valid
(iii).. modified continuous transaction view -
testator acknowledges the will
1).. witness witnessed testator signing will
2).. witness acknowledged testator’s signature
3).. testator said “this is my will” means that
testator can sign
first
(e). CA
practice -
(i)..
testator does not have to sign in the presence of witnesses
(ii)..
testator can say either “this is my will” or “this is my
signature”
(iii).. witnesses do not have to sign in
testator’s presence (unlike
most other states)
(iv).. witnesses do not have to sign in
each other’s presence
(CHECK)
(v).. in CA have to have both witnesses
together when the sign will
(f).. if
witness is also a beneficiary - jurisdictions vary widely
(i)..
will is void say some
(ii)..
modern approach is that it is totally irrelevant
(iii).. CA approach is somewhat in the
middle
1).. have not adopted view that will is
invalid
2).. presumption in the statute is that if
you were a beneficiary
of a will and a witness, you are evil (fraud,
duress, menacing, undue evil)
3).. if you can rebut the presumption then you can
take the full gift under the will
4).. if you cannot rebut the presumption the general
rules is that your get nothing; if your gift fails there are several ways in
which you can get around this
a).. if under intestacy or a prior will you would
have received property anyway you will receive the smaller share or the amount
you would have received (policy is that there is no motive to lie this way)
b).. show that there are other witnesses (testimony
of other witnesses can be used to support the will)
(g).. qualifications for being a witness
(i).. anyone can do it; best qualification is that person
was there
(ii).. in normal case it is fine that the witness does
not know the
testator
(iii).. general characteristics of good witnesses:
1).. over 18 years old
2).. disinterested and not a beneficiary
3).. young and healthy
4).. will be able to locate the witness in the
future
5).. presentable as a witness in court
6).. witness sign self proving affidavit (if no
contest, then
witness will not need to be
produced for probate)
a).. in
CA do not need to have a notary to have an affidavit
b).. if
will is contested then the self proving affidavit is not
any good
c).. in
probate there must be witnesses; in order to avoid
bringing witnesses will must not be contested and
there are self proving affidavits
iv.. will execution ceremony
(a).. good idea to have formal ceremony (good effect on client;
good
PR; more likely to do all steps correctly; client’s
intent will be carried out)
c.. Formalities for
holographic will - prepared in testator’s handwriting
i.. exempt from witnessing requirement
ii.. variety of approaches to determine whether or not an
instrument is
holographic
(a).. intent approach - if testator intended for any of the non
holographic material to be part of the will, the
will is no longer holographic
(b).. surplus approach - if we can ignore the non-holographic
material
and if the will still disposes of the property in
the same way, then it can be treated as holographic
(c).. material provisions approach (UPC, modern view, CA
approach) -
the will will be deemed holographic if the material
provisions are in the testator’s handwriting (material provisions: names of the
beneficiaries, property; store bought forms pass this view)
iii.. effect of a holographic will on a prior will is uncertain
(a).. if the holographic will is undated, the statute presume
that the
holographic will is old and
that the other will is newer
(b).. if there are two holographic wills that are undated the
courts will
normally only give affect to
the consistent provisions
iv.. when to use a holographic will
(a).. emergencies
(b).. for extreme privacy
c).. as an interim will (operates as a temporary will until a
formal will
can be prepared)
d.. Formalities for a cupative
will
i.. CA does not recognize cupative wills (some jurisdictions
still do)
e.. Formalities for statutory
will
i.. only authorized in 4 states (Maine, Michigan, CA,
Wisconsin)
ii. see § 6240; enacted
around 1985
B.. Classification of Testamentary Gifts
(5 basic categories)
1.. specific gifts - property that can be identified
precisely at the date of execution; property is clearly measurable at the time
the will was made
2.. general gift - transfer from
general assets that does not leave specific property
a.. two basic types of
property that are subject of general gifts:
i.. money - I leave $20,000 to X. This is called a general pecuniary gift;
fixed dollar amount gift
ii.. securities - I leave 100 shares of E-Bay stock to X (is
general because
it was not identified precisely - if it had stock
certificate numbers it would be specific)
3.. specific gifts of a general nature - the property
is insufficiently described to be ascertainable as of date of will execution;
instead the property is measured at the time of death
a.. I leave my car to ___ (do
not know what type of car until testator dies)
4.. demonstrative gift - I leave
$10,000 from the sock under my bed to X
(indicates the source from
where the money is to come from)
5.. residual gift - I leave the
remainder of my estate to X
C.. Ademption - refers to the failure of a specific
gift because the property is no in the testator’s estate when the testator dies
1.. By Extinction - when the property is no longer
in the estate; relevant only for specific gifts
a.. common view is to look to the intent view - look
to the intent of the testator
b.. most jurisdictions abandon a very strict view - if the
property is not
in the estate when the testator dies, the gift
adeems and the beneficiary gets nothing
b.. CA view (minority) - has abandoned the ademption
view, but does not go as far as some states with the intent view; many states
allow tracing and may even permit the beneficiary to receive the value of the
missing property; can also get proceeds that are left over (such as insurance
from a burned down house that was left to you 21113)
2.. By Satisfaction - failure of a testamentary gift
because the testator has already transferred the property to the beneficiary
between the time of will execution and time of death (like an advancement)
a.. CA requires a satisfaction be proven in writing;
three ways this can be done
i.. will provides for
satisfaction
ii.. contemporaneous
writing by the testator
iii.. writing by the beneficiary that says
the gift was made in
satisfaction
3.. How to avoid exemption
a.. each specific gift should contain an express
statement of the testator’s intent should the gifted property not be in the
estate when the testator dies
b.. should either provide a substitute gift or state
that the beneficiary receives nothing if the exact item is not part of the
estate
G.. Changes in Value
1.. if the gift has changed in value, the
beneficiary of a specific gift bears the burden of depreciation and the benefit
of appreciation
a..
changes in monetary value - inflation or depreciation does not matter
b.. CA -
a pecuniary gift (fixed dollar amount gift) starts earning interest one year
after death if it is not distributed
2.. change in value of
corporate securities
a.. form - if the change is only in form the
beneficiary has a good chance of taking
i.. cash dividend
b.. substance - if the change is one of substance,
the beneficiary usually will not benefit from the newly acquired securities
i.. stock splits and stock dividends
H.. Exoneration - refers to paying off debts on
specifically given property before beneficiary receives the property; only
relevant for specific gifts
1.. benefits the beneficiary; a beneficiary of a
residual clause won’t like this because there will be less left over after the
debt is paid off
2.. presumptions - states either
presume exoneration or don’t
a.. if not there is no presumption of exoneration,
then the beneficiary gets the gift with the debt (such as a house with an
outstanding mortgage)
b.. CA view - beneficiary
takes WITHOUT exoneration
i.. can provide in the will for exoneration though;
needs to be something other than a general directive (be very specific);
applies to specific gifts only
I.. Abatement - the reduction or elimination of a
testamentary gift to pay an obligation of the estate or a testamentary gift of
a higher priority
1..
abatement order
a..
first follow direction of the will
b..
if no directions, examine the will to come up with a plan or purpose
c..
last result is statutory order of abatement:
i.. property passing via intestate succession
(property not provided for in will)
ii.. residuary gifts
iii.. general gifts to persons other than
testator’s relatives
iv.. specific gifts to non-relatives
J.. Tax Apportionment - prevents the residual gift
from bearing the entire estate tax burden in addition to all of the other
claims against the estate
1.. only
applies to estate taxes (federal or state)
2..
jurisdictions are divided between those that presume apportionment and those
that do not
a.. modern view - apportionment presumed (all
beneficiaries pay their fair share of the taxes)
b..
CA view - apportionment presumed
K.. Marriage of Testator - this affects
wills prior to marriage
1.. spouse is likely to be entitled
to some benefits regardless of what the will says
2.. first spouse to die can only
give away all separate property, half of the
community property, half of
the quasi community property
3.. effect of marriage on
will written before marriage:
a.. surviving spouse gets all the community property
(the half owned by the first spouse to die)
b.. surviving spouse also gets all the quasi community property
c.. surviving spouse can either get one half or one third of
the separate
property
d.. exceptions: if the person wrote that a surviving
spouse would not get anything; non-probate transfers (life insurance);
pre-nuptial agreement
L.. Divorce of Testator - effects on a
will
1..
once divorced the ex-spouse will not take anything
2.. property then passes as if the
ex-spouse had predeceased
3.. should put in will that if there
is a filing for divorce the ex-spouse will not take
M.. Pretermitted Heirs - a child that is left out of
a will; to protect a child from and accidental or inadvertent disinheritance,
state legislators have enacted statutes which may provide for a forced share of
the parent’s estate
1.. under most states there is no obligation to
provide for your children in your will
a.. a
disinherited child is not an omitted child
b..
omitted grandchildren do not fall within the statute
2.. ways a pretermitted heir can
occur:
a.. child born or adopted after
will execution
b.. child is actually alive,
but testator though the child was dead
c.. child is alive but
testator did not know child was born
3.. where to get the pretermitted
heir’s share:
a.. first look to intestate
property
b.. next take proportionally
from all beneficiaries (do NOT use the abatement
order)
c.. court has the power to satisfy the share in a
different way if it is necessary to satisfy the testator’s intent; pretermitted
child usually will take as if the estate had passed by intestacy
4.. exceptions - situations where the omitted child
will not get a share (only apply to the omitted child who was born or adopted
after will execution)
a.. intentionally left out and
the intention is demonstrated in the will
b.. testator’s will actually
provides for the pretermitted child (such as by the
inclusion of a class gift to
children)
c.. testator provided for the pretermitted child by
way of a non-probate transfer
d.. testator’s will demonstrates an intent for
pretermitted children not to share in the testator’s estate
e.. testator’s entire estate
is left to the pretermitted child’s other parent
N.. Death of Beneficiary (Lapse) -
beneficiary fails to survive the testator
1.. normally the beneficiary cannot
take anything; they lack the ability to hold title
2.. CA statute says that beneficiary
who does not survive testator does not take
3.. should always provide a backup
beneficiary in case first beneficiary is not
alive
4.. assuming will is silent on
backup beneficiaries, this is what would happen:
a.. look to see if the jurisdiction has an
anti-lapse statute - this type of statute substitutes descendants of the
pre-deceased for the pre-deceased
beneficiary
b.. CA anti-lapse statute
i.. look first for contrary indication in the will
ii.. demonstrate a sufficient relationship between survivor and
beneficiary
iii.. statute does not apply if only friends
iv.. if no descendants of pre-deceased it would go to
beneficiaries of the
residual
v.. if cannot be saved by the anti-lapse statute,
the residual will pass by intestacy
vi.. if the residual is left to two people then the survivor
would still get it;
courts presume survivorship language if the residual
is passed to two people
O.. Failure of Charitable Gift
1.. reasons for failure
a.. the indicated charity no
longer exists
b.. the specified charitable
purpose is illegal, impossible to fil, or has already
been fulfilled
2.. cy pres - doctrine of equitable approximation;
the court attempts to find a charitable beneficiary or charitable purpose that
is sufficiently similar to what the testator provided in the will
a.. used to substitute a
different charity for the one specified in the will
b.. many charities will show
up at probate and argue why they are similar to
the charity the property was
originally to go to
3.. if the will indicates what to do in the case of
failure of a charitable gift the court will do that first
P.. Survival - need clear and convincing
evidence for survivorship in a will
1.. most states follow the intestacy
rule of a minimum of 120 hours for survival
2.. CA is different - need clear and
convincing evidence of survivorship
Q.. Revocation
1.. By operation of law - situations
where a will is automatically revoked
a.. marriage of testator
b.. divorce of testator
c.. pretermitted heirs
d.. death of a beneficiary
(lapse)
e.. beneficiary killed
testator
f.. alienation - if the
testator makes an inter vivos transfer of an item subject to
a specific devise or bequest
in the testator’s will
g.. elapse of time - is
irrelevant under modern law
2.. By physical act - four
requirements
a.. mental capacity to revoke
b.. revocation intent
c.. physical act
i.. burn the will up
ii.. tear the will up
iii.. cancel, obliterate, destroy the will
d.. concurrence of capacity,
intent, and physical act
i.. mistake does not count as revocation
3.. partial revocation - traditional approach is
that partial revocation by obliteration, strike out, additions, are ineffective
a.. modern view - partial
revocations permitted
i.. want to carry out testator’s intent
ii.. CA recognizes partial revocations
4.. By Subsequent writing -
preferred method; avoids ambiguity
a.. ways to have a revocation
by subsequent writing
i.. express revocation - create a new will in which
you expressly revoke the old will
ii.. an amendment to the existing will (a codicil) (not
recommended)
iii.. revocation by inconsistency - a document that revokes the
prior will
but does not contain
replacement dispositive provisions
R.. Presumptions - about whether a will
was revoked or not
1.. presumption of continuity - if you have the
original will it is presumed to be the real will
a.. the will must be found in the possession of the
individual to whom the testator delivered the will; OR
b.. among the testator’s valuable papers in a place
the testator kept such documents
2.. presumption of revocation - if
you cannot find the original will
a.. proponent of a will has a
heavy burden to rebut this presumption
b.. typically the proponent
must prove why the original cannot be produced by
any reasonable means, and
prove the contents of the will
S.. Revival - refers to the process of revoking a
prior will in a future will and then the will revoking the first will is
revoked; reinstatement of a will the testator has already revoked
1.. most common revival scenario:
a.. testator executed will 1
b.. then writes will 2 and
revokes will 1
c.. will 2 is destroyed or
lost: is will 1 valid?
2.. three approaches to this
question
a.. revival approach - theory
that will number 2 was not effective until testator
dies; since testator revokes
will 2, it never could have been revoked by will 1
b.. no revival approach - view
will 2 as a revocation document and will
number 1 never takes effect;
therefore testator dies intestate
c.. intent view (UCP, CA view)
- try to figure out the intent
i.. first creates a presumption of no revival
ii.. then can introduce evidence to the
contrary; divides into 2 situtations
depending on how will 2 was
revoked
a). physical revocation of
will two - examine testimony or subsequent
revocations; any type of
extrinsic evidence can be used
b). if will 2 was revoked by
will 3 - the only place we can look for
evidence of revival is to
look in will 3
T.. Conditional Revocation
1.. express condition - may execute a revoking
instrument and expressly condition the revocation on the occurrence or
nonoccurrence of a stated event or condition
2.. implied condition (dependant
relative condition; conditional revocation) - used
to impose a condition on the
testator’s act of revoking a will
a.. the condition on which
the person based the will on was not true so
therefore the revocation
does not take place
b.. most common scenarios:
i.. replacement will ineffective
ii.. revocation by physical act
U.. Multiple Originals
1.. a testator may legally execute
several copies of the same will
2.. each copy that contains the
testator’s signature is considered an original
3.. a VERY BAD idea to do multiple
wills - do NOT do it
V.. Interpretation and Construction
1.. Ambiguity - ambiguities are
resolved by fact finder
a.. patent - a will provision that is unclear
on its face and does not convey a sensible meaning
i..
examples: non-intelligible words, undecipherable code
b.. latent - if it conveys a sensible meaning
on its face, but cannot be carried out without further clarification; executor
tries to do what will says but then finds out it is impossible to comply
i.. examples: leaving money to someone who does not
exist, relatives of the same name, misdescription of property, specific gifts
of a general nature (I leave my CAR to X - what did he mean by car? There are
lots of vehicles that are not cars.)
c.. not readily apparent - no ambiguity on its face,
but someone wants to produce evidence to say that the will does not say what it
appears to say
i.. CA follows the plain meaning rule, and therefore
PROHIBITS the use of extrinsic evidence when there is clear meaning (exception:
technical words can use extrinsic evidence)
2.. Integration
a.. external integration - establish testator’s will
by piecing together all of the testator’s wills, codicils, and other
testamentary instruments
i.. to avoid problems date everything, and
physically revoke old documents
b.. internal integration - making certain the
testator’s will contains no fewer and no more pages than it did when the
testator executed it
3.. Incorporation by Reference - having an
extrinsic document being part of the will even though it is not physically part
of the will
a..
requirements:
i.. intent to incorporate writing
ii.. in existence - the writing the
testator wishes to incorporate must have
been in existence when the
testator executed the will
iii.. identification - the writing to be
incorporated must be specifically identified
b.. amending a codicil to a will constitutes
republication of the old will (effective as of date of codicil; can have affect
on Pretermitted children and more)
4.. Facts of Independent Significance -
permits the use of facts and circumstances outside the will to impact the
property disposition the testator made in the will (allowed in CA)
a.. four
common scenarios where this can occur:
i.. determination of an item when it is a specific
gift of a general nature (I leave my car to X)
ii.. evidence to show who spouse is (if will says “I
leave my property to my spouse”)
iii.. identification of members of a class gift (have
to look outside the will to determine who are members of the class)
iv.. gift of contents of an item (EX: I leave my
cedar chest to X.)
1). Generally recognized presumption is that a gift
of an item does not include its contents.
5.. Precatory language - language
that is not binding
6.. Class gifts - one in which the
testator designates a group of beneficiaries by a
generic reference rather
than by their individual names
a.. if specific names and class gift language is
used, the class gift will usually fail
b.. class is the class that exists when testator
dies
c.. to determine the included person in class; just
follow intestacy rules to tell if they are in or not; §21115
V.. Will contests
1.. insane delusions
a.. testator must believe that
something is true when in reality it is false
b.. the misbelief must be
irrational
2.. undue influence - T has testamentary capacity
but was subjected to and controlled by an evil individual
a.. the person must actually
exert an influence over the testator that is undue
b.. the influence must be so
strong that it subverts and overpowers the
testator’s mind
c.. the influence must cause the testator to execute
a will that the testator would not have signed but for the undue influence
3.. duress - connotes the direct use of violence,
threats of brutality to the testator of the testator’s family, etc.
4.fraud - false representation, knowledge of
falsity, reasonably believed, causation
5.. mistake - no evil conduct; testator is
unilaterally mistaken; or innocently misled by someone else who was mistaken
a.. mistake in execution - person signs something without knowing it is a will
b..
mistake in inducement - person tells testator a false fact and testator bases
his will on that fact
W.. Other will issues
1.. conditional gifts
a.. condition precedent - condition must occur
before you get the gift (reward condition)
b.. condition subsequent - you
get the property, and only if you violate the
condition do you loose the
property (punishment condition)
2.. Combination wills -
a.. joint wills
b.. reciprocal wills
c.. contractual wills
3.. election will - a will that attempts to give
away property the testator does not own, but instead is owned by a beneficiary
of a will
III..
Estate Administration
-/-
only 3 multiple choice questions on this
-/-
see October 20, 1999 notes
IV..
Non-Probate Transfers
A.. Ten reasons to use non-probative
methods of property transfer
1.. Non-estate planning benefits
a.. nongratuitous transfers -
daily expenses
b.. gratuitous transfers -
gifts
2.. accelerate asset distribution
a.. delay is potentially
damaging:
i.. the heirs and beneficiaries are unable to use the property
ii.. the decedent’s property may not be able to withstand a gap
in
management
iii.. the decedent’s survivors may have to endure
the emotional impact of a prolonged administration
3.. reduce estate planning and
administration expenses
4.. enhance confidentiality
5.. minimize taxes
a.. taxable estate may include assets that are not
part of the decedent’s probate estate
6.. retain flexibility
7.. change with less difficulty - a
person may revise many of the nonprobate
techniques with a minimum of effort thus avoiding
extending procedures and technicalities
8.. protect from creditors - very controversial;
creditors do not think the death of a debtor should protect assets that were
not protected during the debtor’s life
9.. isolate from contest
10.. increase understandability
B.. Types of
Non Probate Transfers - five types
1.. Inter vivos transfers - transfer
of property while person is alive
a.. elements
i.. present donative intent - donor must have
present intent to make a gratuitous transfer
a).. donor should receive nothing for the
transfer
b).. transfer must be effective
immediately
c).. transfer must be permanent,
unconditional, irrevocable
i).. courts might imply conditions on a gift (such
as an engagement gift)
ii.. delivery - the property must be delivered to the donee
a).. constructive delivery - when the donor
transfers to the donee the means of obtaining possession or control of the
property rather than the actual property
b).. symbolic delivery - when the donor gives the
donee something that represents the property instead of the property itself
c).. delivery of corporate
stock - two approaches
i).. gift is the certificate itself
ii).. stock certificate is only a symbol of
ownership and the stock must be reregistered in the new owner’s name before the
gift is effective
iii.. acceptance - donee must accept the property
a).. normally presumed because an inter vivos gift
usually bestows a benefit on the donee
b.. potential benefits
i.. donee’s immediate enjoyment
ii.. donor satisfaction
iii.. donor relieved of responsibility
iv.. tax reduction (can give $10,000 per year per donee)
v.. creditor protection
vi.. reduce elective share of surviving spouse
c.. potential disadvantages
i.. irrevocable
ii.. lack of control
iii.. leverage reduction
iv.. jealousy
v.. minors and incompetents lack legal capacity
2.. Gifts Causa Mortis - a gift made
in contemplation of death
a.. the donor must fear that
death is impending or imminent
b.. both conditional and
revocable
i.. majority view - gift is automatically
revoked if donor survives
ii.. minority view - the gift is revoked at the
donor’s discretion if the donor survives; CA view
3.. Inter Vivos Gifts in Trust - a method of
dividing title to property so that the legal interest is held by a trustee and
the equitable interest by the beneficiary
4.. Transfers of Future
Interests
a..
remainder
i.. vested remainder - gives the right to obtain
possession of the property as soon as the preceding estate terminates
ii.. contingent remainder - permits the donee to
obtain possession of the property only if a condition precedent is satisfied
b.. executory interest - a type of future interest
in a donee that cannot qualify as a remainder
5.. Powers of Appointment - the
right to designate the new owner of property
a.. this power may be severed
from the property itself
b.. the owner is the donor
c.. the person with the power
to appoint the property is the donee
i.. if this person fails to exercise his power, the
property passes to the default takers; if non, the property reverts to the
donor or the donor’s estate
d.. the prospective new owners
are the appointees
e.. categorization
i.. general - no restrictions or conditions on the
donee’s exercise of the power
ii.. specific, special, or limited - the donor may
specify certain individuals or groups as the objects of the power
iii.. may also make the power conditional
iv.. may also dictate the method the donee must use to exercise
the power
of appointment (inter vivos
power, testamentary power, etc)
f.. Transfers to minors - minors lack legal
capacity; several methods to still make transfers to minors
i.. transfer directly to the minor - best for gifts
where the property is of relatively low value
ii.. place the property in trust for the benefit of the minor
iii.. the donor may transfer the property to a custodian for
the minor
C.. Co-Ownership of Property
1.. Tenancy in common - not a probate avoidance
technique because the deceased tenant’s share passes through the tenant’s estate
to the appropriate heirs or beneficiaries (no survivorship)
2.. Joint tenancy - concurrent property ownership;
must meet the four unities; CA Civ. Code 683 - joint nature must be stated for
there to be joint tenants
a. must meet the four unities
i.. unity of time - all owners must become owners at the same
time
ii.. unity of title - all joint tenants received
their title from the same instrument
iii.. unity of interest - each joint
tenant owns the same proportion of the
property
iv.. unity of possession - each joint tenant must
have the right to occupy the entire property
b.. survivorship rights - a joint tenant’s rights
end in favor of the surviving joint tenants
i.. when a joint tenant dies, the deceased tenant’s
share is divided equally among the surviving joint tenants
a). many states now provide that the survivorship
feature does not attach to a joint tenancy unless expressly stated in the
instrument (to avoid accidental transfers); in CA, merely saying “joint
tenants” is enough to give survivorship rights
c.. partition - joint tenants may dissolve the
tenancy by either a voluntary or court-ordered partition
i.. the property must be divided equally; because it
is often hard to divide property it is common for one tenant to buy the other
out
D.. Multiple Party Accounts - contractual
arrangements for the deposit of money with financial institutions (checking
accounts, savings accounts, certificates of deposit)
1.. joint account - an account
payable on the request of one of two or more parties
a.. ownership rights - joint account belongs to the
parties in proportion to the net contributions by each party
b.. withdrawal rights - each party has the virtually
unlimited right to withdraw any or all of the money in the account
c.. rights after death of a
depositor
i.. ownership rights - when one of the parties to a
joint account dies the deceased party’s net contributions pass either to:
a). through the deceased party’s estate to the
party’s heirs or beneficiaries
b). to the surviving joint parties; CA view
ii.. survivorship rights - to determine whether a
surviving party has survivorship rights:
a). examine state law to ascertain the state’s presumption
i). Some states presume the account has no
survivorship rights; survivorship rights only exist when expressly created by
the parties in contract
ii). Other states provide that survivorship rights are
automatic
b). examine the actual contract to see if it rebuts
the state law presumption
c). determine whether the state law permits extrinsic
evidence to vary the contract
iii.. withdrawal rights -
any party has the right to withdraw any and all of the funds on deposit
2.. the agency or convenience account - a joint
account without survivorship rights
a.. the depositing party does not intend the other
party to obtain the remaining funds when the party dies
b.. often used as an expense account for other party
to pay primary party’s bills
3.. the payable on death account - becomes payable
to designated persons only after the death of all original depositors
a.. the POD payees are not entitled to notice of
withdrawal and their consent or approval is not required
i.. no
ownership rights are transferred until death
4.. the trust account - similar to a POD account;
based on trust law rather than
contract law; takes form
such as “depositor in trust for beneficiary”
a..
modern law has stripped trust accounts of their trust law components
5.. Other multiple party account issues
a.. ability to alter contract by will - unlikely
that a will provision would be sufficient to alter the terms of an account
contract
b.. creditors - multi party accounts are not usually
an effective method of avoiding creditors
c.. divorce - some jurisdictions allow the ex-spouse
to take while others revoke the provisions automatically as a matter of law and
then dispose of the property as if the ex-spouse had predeceased the depositor
d..
survival - usually the claimant must survive the depositor by 120 hours
e..
effect of depositor’s incapacity - no clear resolution at this time
f.. make
sure to review all of your client’s multi-party accounts to make sure
they comply with the applicable law (since the bank
officer might not give out good information when the client set up the account)
E.. Contracts - used to direct the payment of money
or delivery of other property upon an individual’s death (not covered in class
very much)
1.. life insurance - contract between the owner and
an insurer; the insurer promises to pay a stated amount, the proceeds or face
value, to the beneficiary when a designated person, the insured dies
a.. to
obtain life insurance you need an insurable interest in the person’s life (a
strong reason to keep the
person alive)
i.. you have an insurable interest in your
own life
ii.. insurable interest in close family
members (spouse, children, parents)
iii.. company may have an insurable
interest in a key employee
b.. use
of life insurance - an important and powerful estate planning tool
i. can create an instant estate for the
insured and his family
ii.. the beneficiary is not required to
pay income tax on the receipt of the
life insurance proceeds
c.. types of life insurance
i.. term life insurance - lasts for a specific term;
only payable if the insured dies during the specified term; premiums increase
as the insured ages; most economical for the young
ii.. whole life insurance - designed to provide
protection for the insured’s entire life, not just a specified term
a). the amount of the premiums remains constant from
the time the insurer issues the policy until the insured dies or reaches and
advanced age (such as 90 or 100)
i).. excessive premiums build up in a reserve
(called cash value or cash surrender value) and can be used as collateral for a
loan or to borrow the case value
b). generally considered an unwise choice because
insured overpays in the early years and does not receive a competitive rate of
return on the cash value
iii.. universal life insurance - like whole life
insurance except the cash value receives a competitive rate of return
iv.. endowment life insurance - similar to whole
life and universal except that the premiums stop at a younger age (such as 62
or 65) and the cash value will equal the face value at that time
v.. split dollar life insurance - the insured ant
the insured’s employer contribute to the premiums; when the insured dies the
employer usually is paid the amount of the premium contributions; this has
potential for considerable tax savings
d.. payment of proceeds -
insurance owners get many options
i.. lump sum - most common
ii.. installment options - insurer makes periodic payments to
the
beneficiary
iii.. interest or deposit option - insurer makes payment of
interest to the
beneficiaries and transfers
the proceeds at a later time
iv.. pay to trusts - good where beneficiary is a minor child,
incompetent,
etc.
v.. effect of divorce on the life insurance policy -
under common law, had little effect; some states have enacted statutes which
automatically revoke beneficiary designations in favor of ex-spouse
F.. annuities - a contract between the purchaser of
the contract and the annuity provider
1.. in exchange for a lump sum payment, the annuity
provider will make periodic payments for the life of the annuitant
2..
classifications of annuities
a..
based on type
i.. commercial annuity - purchased form a
company that sells annuities
ii.. private annuity - purchased from
someone not in the annuity business
(such as a family member)
b..
based on duration of the periodic payments
i.. straight life annuity - payments made
only while annuitant is alive
ii.. refund annuity - provider makes
payments for the annuitant’s life, but
if the annuitant dies before receiving at least the
amount paid for the annuity, the provider pays the difference between the
purchase price and the amount already distributed
iii.. life annuity with a certain term - payments
for the annuitant’s life, but if annuitant dies before term expires, the
provider continues to make payments to a designated beneficiary
iv.. joint life annuity - provider makes payments
until the first of the annuitants dies at which times payments stop
v.. joint and survivorship annuity - same as above,
except the provider continues payments until both annuitants die
c.. characterized by how
periodic payments are determined
i.. straight annuity - each payment is of the same amount
ii.. variable annuity - amount of payment changes based on the
investment
success of the annuity
provider
G.. Employee benefit and retirement plans
1.. types of plans
a.. defined benefit plan - basic plan; employee gets
a determinable amount of benefits payable for a certain number of years until
the employee dies
b.. defined contribution plan - employer contributes
to the plan on the employee’s behalf; the amount the employee receives upon
retirement is based upon the amount contributed plus the success of the plan’s
management in investing the contributions
c.. cash or deferred arrangement (CODA) - employer
puts a percentage of the employee’s salary into the benefit plan; amount
invested determines payments
d.. employee stock ownership plan (ESOP) - special
kind of trust held by employer then makes contributions to the trust for
benefit of employees; trustee purchases the corporate employer’s stock with
contributions and holds the stock as the trust corpus
e.. Keogh plan - for self employed people, sole
proprietors, partners; same rules as employee plans
f.. individual retirement accounts (IRA) - amount
individuals may contribute is limited; do not pay taxes on contributions but
must pay taxes on withdrawals
g.. Roth IRA - must pay income tax on qualifying
contributions but all distributions and earnings are free of tax
h.. simplified employee pension plan (SEP) -
employers make contributions directly to their employee’s IRAs
2.. protecting the surviving spouse
a.. federal law gives the employee the right to
demand that the retirement plan be paid as a joint and survivor annuity
b.. changing this - regain
ability to control payment
i.. request must be in writing
ii.. indicate that spousal consent is required to change the
beneficiary or
form of benefits
V..
Trusts
A.. Introduction
1.. basic trust operation
a.. the owner must divide
title to the property into legal and equitable interests
b.. the owner must impose
fiduciary duties on the holder of the legal title to
the deal with the property
for the benefit of the holder of the equitable title
c.. the holder of legal title manages the property
(trustee) and makes payments for the benefit of the individual or charity
2.. parties involved
a.. settler - person who
creates a trust by splitting title (also known as trustor,
grantor, donor)
b.. trustee - person that holds legal title; gets no
benefits and all the wok; might get a fee for being the trustee; personally
responsible
c.. beneficiary - person or
entity that holds equitable title to the trust
3.. purposes and uses of trusts -
many reasons to convey property in a trust
a.. provide for and protect
beneficiaries
i.. when giving property to minors
ii.. when giving property to individuals who lack management
skills
iii.. spendthrifts - protect trust property from beneficiary’s
own excess as
well as creditors
iv.. protect property from persons susceptible to influence
b.. provide for flexible
distribution of assets - also have discretion
c.. protection against
settlor’s incompetence - can avoid need for a guardian
d.. professional management of
property - banks, trust companies have more
expertise and experience;
greater investment opportunities
e.. probate avoidance - property in trust is not
part of the probate estate upon the settlor’s death; the property is
administered and distributed according to the terms of the trust; advantages - get
property into hands of beneficiaries quickly; avoid gaps in management; evade
probate publicity; tax avoidance
B.. Trust Creation
1.. Trust intent - threshold factor in determining
whether a trust is created
a.. ascertain the settlor’s
intent; the transferor must:
i.. divides title to the property into
legal and equitable components
ii.. imposes enforceable fiduciary duties
on the holder of legal title
b.. Statute of uses - beneficiaries equitable
interest in real property was turned into a legal interest as well
i.. active trust - where the trustee actually needs
legal title to the property to perform a power or duty for the beneficiary’s
benefit
ii.. passive trust - an attempted split of title
where the trustee is merely holding legal title without any power or duties
with respect to the property
c.. split of title and merger - imposition of
fiduciary duties on the holder of
legal title is sufficient to
satisfy the split title requirement
i.. initial trust creation - must split title so
that the same person does not own all legal and equitable interests
ii.. subsequent events - if all legal and equitable
title becomes reunited in one person, merger occurs and the trust ceases to
exist
d.. distinguishing trusts from
other legal relationships
i.. agency - giving power of attorney but no legal title
ii.. bailment - change of possession; legal duties with basis
in contract law
iii.. condition subsequent - does not split title
iv.. custodianship - does not give rise to a trust; no title to
custodian
v.. debt - does not split title
vi.. equitable charge - just an equitable right to obtain
money, not a
fiduciary right; occurs when a donor makes a
transfer to a donee subject to the donee paying a certain amount of money to a
third person or performing a particular duty
vii.. guardianship - fiduciary duty but no legal title
viii.. personal representative of decedent’s estate - merely
have the right to
possess
ix.. power of appointment - title does not vest in appointee
x.. security arrangements - contractual, does not involve a
split of title
2.. methods of trust creation; may be created while
settler is alive or at time of settlor’s death
a.. inter vivos trust (living trust) - methods
distinguished by identity of person who holds legal title to the property:
i.. declaration of trust - settlor declares himself to be the
trustee
ii.. transfer in trust - transfers legal title to another as
the trustee
b.. testamentary trust - split
of title does not occur until settlor dies
c.. consideration - not
necessary; is a gratuitous property
transfer
3.. the settlor - creates a trust by
splitting the title
a.. capacity- same as the
capacity needed to execute a will
b.. retention of powers - if
the settlor makes a declaration of trust so that the
settlor is also the trustee, the reality of split of
title and duty imposition is not too clear
4.. statute of frauds - sometimes a
trust must be evidenced by a writing
a.. when writing required - general rule is that
trusts of real property must be evidenced by a written instrument
i.. CA view
b.. common exceptions to the
writing requirement
i.. personal property - usually do not need a writing
ii.. oral trusts of real property that trustees partially
perform - typically are
enforced
iii.. conveyance induced by
evil conduct - no express trust will arise
a). courts will impose a constructive trust to
prevent unjust enrichment of trustee
c.. standing to raise statute of frauds defense -
meant to protect the trustee, so the trustee is the one with standing
d.. effect of violation of SOF - makes the trust
unenforceable (voidable) rather than void
i.. trustee can carry out the terms of the oral
trust although no one could have forced him to do so
e.. acknowledgement - notarized statement that the
settlor willingly executed the trust as an act of his own free will
5.. trust purposes - may not be for illegal purpose;
terms can impose more restrictions on trustee
a.. determining validity of
purpose
i.. intent approach - a trust is illegal if it could
induce another to commit a crime
ii.. use approach - focuses on how the property is actually to
be used
b.. remedies for illegal trusts - appropriate remedy
depends on the reason for illegality
i.. defrauded creditor - allow the creditor to set
aside the conveyance to the trust
ii..
other situations
a).. undue the transfer - settlor would
regain legal and equitable title
b).. refuse to enforce the rights of the
purported holder of equitable
title
6.. trust property - trust is a method of holding
title to the property; existence of property is essential for creation
a.. types of trust property - any type as long as
the settlor can transfer title to that property
i.. the property must be in existence and clearly
ascertainable (identifiable)
b.. transfer of property to
trust - legal title must reach the hands of the trustee
7.. the trustee - holds legal title
and is bound by many fiduciary duties
a.. capacity - legal age and competent, a business
entity must have authority (usually found in corporation’s charter which is
derived from CA corporation law), and entity may need to meet additional
requirements
i.. settlor can be a trustee (declaration of trust);
also beneficiary can be the trustee as long as he is not the sole beneficiary
b.. acceptance - a person must accept to be a
trustee; no liability just because you are named as a trustee
i.. trustee could sign a written acceptance; common
practice to have the trustee sign the trust instrument at the same time as the
settlor (usually with an inter vivos trust), or a separate written acceptance
ii..
acceptance may be implied
a).. some states have a presumption of acceptance if
the settlor has started to perform duties of the trustee
i).. CA exception (§15600b)- in an emergency
situation a named trustee may take action to preserve trust property, but that
will not be considered an acceptance
iii.. rejection (15601) - if person just does
nothing; better method is written rejection - put rejection in writing
iv.. failure to accept position
a).. first step is to look to trust to see if an alternate has
been named
b).. if not, the court can appoint a replacement
v.. reasons to be a trustee - money, emotional satisfaction
vi.. reasons not to be a trustee - a big burden, duty to behave
as a fiduciary,
will be personally liable if you make mistakes, for
some mistakes there is criminal liability
c.. qualification
i.. some states require an oath of office
ii.. bond - may need to post bond conditioned on the faithful
performance
of trustee’s duties; state’s
views vary:
a).. require bond unless trust expressly waives bond
b).. some
statutes do not require bond unless the settlor expressly
requires it under the terms
of the trust or the courts deem it necessary
c).. some states exempt corporate fiduciaries from
the bonding requirement
d).. in CA (§15602) - bond is not required (for a
personal representative it is the opposite)
i)..
settlor might require bond (the court could still waive it though)
ii)..
trust companies do not have to post bond - because to qualify
to be a trust company they
had to meet lots of requirements
iii).. a court appointed individual successor not
named by the settlor must post bond
d.. multiple trustees - all
trustees must agree in decision making (in CA )
i.. benefits - better decisions may result; greater
protection to the trust and the beneficiaries
ii.. drawbacks - both trustees must agree which may
cause deadlocks; slow down the administration process; additional
administrative fees may be charged
e.. successor trustees - if a trustee needs to be
replaced, the courts will look to the trust for specified successors; next look
to statute; if none, then courts will appoint a successor
f.. effect of holding legal title - the trustee has
only legal title and those claiming through the trustee have no claim to the
property
8.. the beneficiary - hold equitable title and have
standing to enforce the trust (for private trusts; different rules for
charitable trusts)
a.. capacity - any human that is alive can be a
beneficiary; a legal entity (corporation) can also be a trust beneficiary
i.. several beneficiaries may hold concurrent interests
ii.. the beneficiaries may hold successive interests
iii.. (15800) - CA view - if the trust is revocable, the
beneficiaries
cannot enforce the trust, the trustee owes the
fiduciary duties to the person with the power to revoke (usually the settlor);
the beneficiaries do not have standing
b.. adequacy of beneficiary designation - identity
of beneficiaries must be adequately stated or trust will fail
i.. can
be named by name or class
ii.. CA
(§ 15205b2) grants trustee power to select the beneficiary (in book
example 19-45 and 19-47
would probably work)
c.. honorary trusts - a gift in which the donor
intends to benefit a non human, non-charitable purpose (pets, maintain items of
property)
i.. most American jurisdictions do not recognize
honorary trusts; growing trend to permit these as long as the purpose is not unlawful
ii.. CA - can set up a trust for a designated pet or
domestic animal; limited for the duration of the life of the animal; cannot be
set up for pets descendants
-- limited in duration for 21 years to set up a
trust for things like a clock, car, etc..
d.. Incidental beneficiaries - someone who was not
named as a beneficiary, but benefits from the trust; usually do not have
standing to enforce the trust
e.. disclaimer - beneficiaries are entitled to
disclaim trust property
f.. transfers and assignments of beneficial
interests - a beneficiary could give away or sell the interest
i..
settlor’s usually restrict these powers
a).. usually require a beneficiary to be
alive to benefit from the trust
b)..
settlors usually include spendthrift provisions that prohibit
beneficiaries from transferring or assigning their
interests
ii.. priority of assignment of beneficial interest -
two basic approaches to deal with priority of conflicting assignments
a).. English view - priority is given to the first
assignee who notifies the trustee of the assignment
b).. American view - priority is given to the first
assignee unless the trust instrument provides otherwise
g.. availability of beneficiary’s interest to
creditors - creditors rarely have the ability to reach the beneficiary’s
interest in the trust
h.. spendthrift restrictions - included in almost
every trust because they protect beneficiary’s from their own improvidence and
their persona; creditors
i.. prohibits the beneficiary from selling, giving
away, or otherwise transferring the beneficiary’s interest
ii.. prevents the beneficiary’s creditors from
reaching the beneficiary’s interest in the trust
iii.. policies in support of: settlor has the right
to dispose of property as he wishes; prevents beneficiaries from becoming
public burdens should the trust be exhausted; creditors have the responsibility
to investigate the debtor
iv.. some states refuse to enforce: take away the
rights of legitimate creditor; encourage irresponsible spending
v.. exceptions to spendthrift restrictions -
when settlor is beneficiary states will often refuse to enforce; creditors with
claims for necessaries (food, clothing, shelter) will often reach trust income
(public policy of encouraging creditors to supply basic necessities of life);
child support; federal tax lien; settlement agreement; jurisdictions vary on
this
1).. CA has more protection for creditors than most
states (although still plenty of protection for beneficiary
2).. CA exceptions (not responsible for
details): many uncertainties with how the exceptions interrelate
a).. monies due but unpaid (§ 15301b) - prevent beneficiary from avoiding creditors by going bankrupt before receiving money from trust; know this one a bit more since we spent more time on it
b).. cannot put money into trust to protect yourself
from your own creditors; can’t be the beneficiary and the settlor of a
spendthrift trust (some states will allow this, also offshore banking)
c).. spouse and child support (§ 15305) - policy
d).. restitution judgment owed by criminals in
criminal cases (§ 15305)
e).. liability to reimburse state of CA for public
support
f).. a court order limited to 25% of the amount to
which the beneficiary is entitled (cannot be used if the money is needed for
beneficiary’s support or dependence)
g).. distributions in excess in support of education
(§ 15307)
h).. federal government claims - tax lien
vi.. creation - as long as intent is clear, it is
good enough; see sample on page 338; usually just a paragraph saying it is a
spendthrift trust
vii.. authorized in CA
i.. discretionary provisions - gives the trustee the
power to spend the trust money as he sees fit; substitutes trustee’s judgment
for the settlor’s
i.. often called a discretionary trust;
trustees must act in good faith; may not act against public interest; trustee
determines how much, if anything, the beneficiary gets
ii.. remedy for abuse of discretion - 1) the court
can remove trustee (if trustee is evil); 2) court can exercise discretion for
trustee; 3) court can scold trustee
iii.. jurisdictions are divided if granting a
discretionary trust removes reasonableness requirement
iv.. CA (§ 16080) - discretionary power conferred
upon a trustee is not left to trustee’s arbitrary discretion, but must act
reasonably; must also act in good faith and cannot disregard the purposes of
the trust. This means there is NO such
thing as absolute discretion.
j.. support provisions - settlor can restrict use of
trust money to basic needs, and educational expenses (called a support trust);
can be mandatory or discretionary
i.. if discretionary - the trustee MAY (not
required) to pay for the beneficiary’s support
ii.. support should be defined in trust - 1)..
maintain person as they are (status quo support); 2).. enhance the
beneficiary’s lifestyle; 3).. safety net, backup method of support
iii.. first dollars - you make the money first, and
then you get the money from the trust
iv.. last dollars - only pays the difference between
what person makes and their needs; a negative incentive to work
k.. pour over provisions - a clause in a will that
makes a gift to an inter vivos trust; used to obtain benefits of trusts, but do
not want to create them in their wills; money is poured over from the estate of
the decedent into a trust
i..
benefits
a).. easier to change the trust than to
change the will
b).. easier to put all eggs in one basket
(retirement plans, estate,
life insurance all payable
to the estate); unified source
c).. save expenses of multiple trusts
(have money go to spouse’s trust)
ii..
history
a).. could not be done at common law
b).. some states treated the trust as a
fact of independent significance
iii.. Uniform testamentary additions to trusts act
(commonly enacted; two versions - 1960, 1991)
a).. CA has the 1991 version of the Uniform
Testamentary additions to trusts
i).. clear authorization of leaving something by
will to a trust you create or a trust created by a third party
ii).. trust must be identified in the will (name,
and date of execution)
iii).. trust must be written (cannot be
oral)
iv).. trust instrument (physical sheet of
paper) must be executed
before or concurrently with will execution (Uniform
act says it could be created later; Prof thinks this is an error); the trust
does not have to be in existence (just the instrument); means there does not
have to be any property in the trust; meaning the initial funding of the trust
can be the pour over amount; if the trust no longer exists prior to death, the
money will not pour over
v).. money is governed by any amendments; if you
pour over into someone’s else’s trust, you have to be careful because they
might change provisions later
l.. life insurance trusts - life insurance owner may
name a trust as the beneficiary
i.. CA
expressly authorizes leaving life insurance to a trust
ii..
common technique when minor children are the beneficiaries
iii..
inter vivos or testamentary? Depends on facts
iv..
revocable or irrevocable? Depends on facts (tax benefits if irrevocable)
v..
consider the positives and negatives
9.. rule against perpetuities - prohibits trusts in
which the ability to ascertain the identity of the beneficiaries in who the
equitable title will vest is delayed beyond some specific time (usually 21
years)
a.. a
contingent event must start within the period specified by the RAP
b.. all
trusts in remainder interests in a trust must vest within the perpetuities
period
c.. status - in the USA there is a tremendous range
in how it works; about 10 states have abolished the RAP permitting the creation
of dynasty trusts
i.. CA - about in the middle of states; has enacted
the Uniform Statutopry Rule Against Perpetuities (21200-21231); has abolished
the common law rule and substitutes a rule in its place:
a).. you get 90 years from the date of
creation for the interest to vest
b).. is a wait and see approach - look to
see if it really does vest within
the 90 years; either get 21 years from lives in
being OR 90 years from date of creation, whichever is longer don’t look at
potentialities, but look at what actually happens
c).. if it violates the rule, the interest is not
made void, but the court simply fixes the interest so that it does not violate
the rule
d).. want to include a RAP savings clause (indicate
what happens to the property if RAP is violated - see sample p.360)
10.. charitable trusts (also known as public trust)
- a trust established for the benefit of the community as a whole or for a
relatively large segment of the community; beneficiary is the community as a
whole
-- assume the rules are the same as other trusts
unless we mention them here
a.. five widely recognized
categories:
i.. relief of poverty
ii.. advancement of education
iii.. advancement of religion
iv.. promotion of health
v.. governmental or municipal purposes (parks, museums)
b.. size of charitable class - require a
sufficiently large or indefinite class of beneficiaries (different than private
trusts where you need ascertainable beneficiaries)
c.. description - may be specified in extremely
broad terms; courts will always try to carry out the intent of the testator
d.. determination of charitable purpose - the court
makes the determination of whether the purpose is charitable; each particular
case depends on the exact facts and the judge; some apply a “generally
accepted” standard
i.. when trust is for religion - it is okay as long
as the religion is not illegal or against public policy; courts will not
question whether religion is charitable or not
ii.. no bright line in determining whether a trust
is charitable or not; just whether it is more likely or less likely to be
charitable
e.. other charitable trust
issues
i.. mortmain statutes - limits or restricts
charitable gifts; constitutional validity is problematic (none in CA was set
aside in 1975)
ii.. rule against perpetuities - not typically restricted
iii.. enforcement - by state attorney general; family usually
contests the
trust; if trust is found to
be invalid look to other instruments
iv.. tax benefits - must meet detailed and technical requirements
but can
qualify for income, gift,
and estate tax benefits
v.. cy pres - can be applied by courts to supply
missing charitable trust beneficiaries
vi.. split interest trusts - a trust that is both
private and charitable at the same time (charitable remainder trust, charitable
lead trust)
C.. Trust Administration
1..
overview
a.. accept trusteeship - no duties imposed until
person accepts; sign acceptance document under § 5600
b..
post bond - may be required of trustee to protect the beneficiaries from evil
trustee conduct; in CA not needed for a trustee (but
for a personal representative it is required)
c.. register trust - some states require the trust
to be registered with the court; no mandatory registration in CA; very rare;
you MAY if it involves real property § 15210
d..
possess and safeguard trust property - locate property, record deeds, buy
insurance, keep property
safe; take reasonable steps to protect it § 16606
i.. earmark trust property - label the
property as belonging to the trust and
keep it separate from
trustee’s own property (avoid commingling)
e..
identify and locate beneficiaries - need to know who receives trust property
f..
follow settlor’s instructions
g..
act as fiduciary - broad range of duties (exercise a high standard of care
when investing trust property, duty of loyalty, and
avoid self dealing); duty to keep beneficiaries reasonably informed of trust
and administration
h.. support and defend trust - defend attacks on the
validity of the trust (§ 16011 - trustee must take reasonable steps to defend
actions on a trust)
2.. trust
investments and standard of care - need to protect property but also make
it productive
a..
selection of investments - states used to have a statutory legal list of
investments (such as government obligations, first
mortgage on real property), but has been abandoned by almost all states;
trustee held to a prudent person standard
i.. many states have modified this to
include how a reasonable person
would deal with property of another: 1) examine
safety of investment, 2) determine the potential to appreciate in value, 3)
evaluate the income expected to be produced
ii.. prudent investor or portfolio standard (modern
trend) - the appropriateness of the investment is base on the entire trust
portfolio
a). CA 16047(a) - prudent investor must exercise
reasonable, skill, care and caution; trustee must consider purposes of the
trust, the trust terms, the distribution requirements, other circumstances
-/- look at tax consequences, income and
appreciation, role that each investment fits into the portfolio
-/- look at beneficiary’s expenses, look at amount
of money in trust when determining how much risk that can be taken (more money,
more risk allowed)
-/- look assets special relation to the trust (real
property)
b). prudent investor standard is most likely the
wave of the future; however it makes the job harder since the trustee has to do
more research, know more
c).. evaluate the investment at time investment was
made (16051)
d).. settlor can increase the standard if he does
not like the prudent person standard; can also limit types of investments
b.. duty to diversity -
trustee must not put all eggs in one basket
c.. exculpatory clauses -
settlor may expand or restrict types of investments;
also can reduce the standard of care (often done for
family members who are not serving for a fee) (in CA default is the reasonable
person standard, but settlor may expand or restrict it 16604(b))
i.. if you have better skills you have to use them,
if you say you have better skills you are bound to what you represented, and if
you don’t have better skills you are still held to prudent investor standard
d.. directory provision - requires the trustee to
exercise certain trust powers as directed by another person or group (ex:
follow advice of a stock broker)
d.. duty to review investments - must periodically
review investments to make sure they are still appropriate for trust; frequency
of review varies with type of investment
i.. if you take over as trustee (prior trustee dies,
resigns) - must review investment, get out of bad investments, look to see if
there was any breach of fiduciary duties of prior trustee, if they breached,
you have a duty to go after them and if you don’t you can be liable for them
ii.. settlor’s can remove some of the liability of
trustees - usually when trustee is a friend, family member; often common to
include exculpatory provisions to lower standard of care
a).. in CA - can only exculpate regular negligence
(not anything bad faith, reckless, or illegal - 16461)
3.. trustee powers - trustee needs a wide array of
powers such as buy, sell, rent, lease, lend, borrow, mortgage, settle claims,
manage corporate securities
a..
sources of powers
i.. trust instrument - settlors typically included
(in the past) comprehensive list of trustee powers; now states have codified
much of this (16200)
a).. trustee does not have to go to court to take
advantage of these powers
ii.. State statutes - lists that may be incorporated
by reference;
a) only have statutory powers if the settlor
expressly mentions the powers in the trust instrument
b). some states enact statutory lists of powers
trustees automatically possess unless the settlor expressly restricts them (CA
VIEW)
-/- CA 16220-249 - lists all the statutory powers;
allows trust instruments to be a lot shorter
-/- only time you have to worry about putting powers
in trust is if settlor wants to vary the powers (usually limited situations,
just a few lines)
c). some states do not list the trustee powers but
instead provide that trustees have whatever powers are necessary to deal
with trust property
iii.. Implied by circumstances - powers are limited by equity; the trustee is deemed to possess that power if the settlor must have intended the trustee to have it to accomplish trust objectives; used more in states without big statutory lists
a). 16200(c) - CA codifies implied powers; implied powers are available
iv.. court order - court may grant additional powers
beyond those the settlor or state statute provides; may also limit powers in
any manner
b.. delegation of powers - conflict between how much
powers the trustee may delegate; traditional view is that is that the trustee
may not delegate mere ministerial duties but may not delegate discretionary
acts (such as how much money to distribute); hard to apply this rule because
everything involves some discretion; some states now apply a prudent person
standard
i.. CA (16012) - trustee cannot delegate acts the
trustee can be reasonably expected to perform (EXCEPTION: 16052 - can delegate
investment and management functions; part of the prudent investor rule; this is
a big change from common law; but still have to exercise a lot of caution when
delegating; if you delegate properly not liable if they mess up (16401))
ii.. if multiple trustees - cannot delegate all to
one trustee; can still be liable to other trustees (16013); each co trustee
must participate and take reasonable steps to prevent breach of co-trustees
4.. trust distributions - the trustee’s
responsibilities related to distribution from the trust either because the
instrument requires the distribution or because the trustee decided to make a
distribution by exercising the discretion granted by the settlor
a.. standard of care - generally trustees are under
an absolute and unqualified duty to make trust distributions to the correct
persons
b.. competent adult beneficiary - distributions
should be made directly to the beneficiary if an adult
c.. minor incapacitated beneficiary - distributions
for a minor should be made to the beneficiary’s guardian or conservator (under
16245 a trustee can pay to a minor directly, such as an allowance); can also
pay on behalf of minor (pay education directly, food, rent, car, health care);
under common law you could not pay on behalf of without court permission
5.. duty of loyalty - beneficiaries are owed duties
of undivided loyalty and utmost good faith with regard to all trust matters;
trustee must avoid self-dealing and all other conflict of interest
situations; trustee cannot profit from being a trustee
a.. buying and selling trust property - trustee may not purchase trust assets for the trustee’s personal use; cannot sell trustee’s personal assets to the trust
b.. borrowing trust property - may not self deal by
borrowing from trust unless the settlor expressly authorizes these loans in the
trust instrument
c.. purchase of common investments - the trustee and
the trust should not each contribute to the purchase of a parcel of real property; do not want trustee
in the position of making decisions for both the trustee and the trust
d.. transfers between trusts - trustee may not sell
property to another trust for which the trustee is also serving as the trustee
e.. dealing with beneficiaries - duty of fairness is
owed
f.. self employment - a trustee with special skills
should not be tempted to employ himself because he will create a conflict of
interest situation
g.. ramifications of breach of loyalty duties -
depends whether the act was self dealing or only a conflict of interest
i.. self dealing - trustee is personally liable for
self dealing (such as purchasing a trust asset); most courts do not consider
good faith, honesty, reasonably, etc..
a).. no-further-inquiry rule - 1) the strict rule
guards against self dealing because trustee has everything to loose; 2) deters
trustees of other trusts from self dealing; 3) hard to tell if trustee was
acting in good faith or was really acting in a fraudulent manner (often called constructive
fraud)
ii.. conflict of interest - courts take a more
relaxed approach; will consider good faith
h.. permitted self dealing - if a settlor wants to
permit self dealing, the settlor should include a trust provision giving the
trustee permission to self deal
i.. if self dealing not authorized, there are two
additional ways trustee may obtain authority to do so: 1). Obtain consent of
all beneficiaries; 2) seek court permission
6.. liability of trustee to third parties - may be
liable to persons other than the beneficiaries
a.. contract liability - personally liable for any
breach of contract unless it is made clear that the trustee’s liability is
limited to the trust and that trustee is not individually liable
b.. tort
liability - may commit a tort during the administration of the estate
i.. some states now protect trustee so that
plaintiffs can only recover directly against trust property
c.. liability as property owner - liability for
property taxes that exceed trust value
i.. modern laws limit trustee’s liability to the
amount that the trust can afford to reimburse trustee
7.. Allocation of receipts and expenses - problems
arise when one beneficiary has the right to trust income and the other has a
right to the principal when the trust terminates; conflicting interests develop
and it is up to the trustee to balance the interests; three ways to determine
allocation: 1) check the trust instrument for instructions; 2) if silent,
follow relevant state statutes; 3) if no statute, allocate in a reasonable and
equitable manner
a.. general allocation rules - if property is lost
and compensation is paid, that money goes towards the principal; if money is
gained through use of the principal that money is income
i.. principal - all proceeds from sale of
stock are principal, eminent domain awards compensate for the loss of principal
and are therefore principal; insurance proceeds for lost property; dividends of
shares of stock (Massachusetts rule - stock dividends of shares of the
declaring corporation’s own stock are principal); stock splits are principal;
shares that result form a merger (represent a change of form, not substance)
ii.. income - rent is income,
interest is income, cash dividends are income,
b.. wasting assets - an asset that goes down in
value as it is used to produce income beyond what would be considered mere
depreciation from normal use and age (natural resources)
i.. open mine doctrine - if settlor had begun
exploiting the mine before transferring the property to trust, the income
beneficiary is entitled to all proceeds; if exploitation began after
transfer to trust, all proceeds go to principal
ii.. timber - grows back, so trustee must make
allocation that is reasonable and equitable
iii.. intangibles (patents, copyright, royalties) -
a portion of the receipts must be allocated to principal to compensate for loss
in value
c.. business and farming operations - computed in
accordance with generally accepted accounting principles (GAAP)
i.. most states provide that a loss cannot be
carried into future years to reduce the amount of net income to which the
income beneficiaries are entitled
d.. Bond Premiums and
discounts - states vary
e.. under productive property
- unless permitted in trust instrument, property
that does not earn income
should not be retained
f.. rights of income
beneficiaries
i.. right to income - arises
on the date specified in the trust
ii.. asset become subject to an inter vivos trust on
the date asset is transferred
iii.. asset is subject to
testamentary trust on date of the testator’s death
g..
apportionment of income among beneficiaries -
h..
allocation of expenses
i.. income - property taxes, insurance premiums,
interest on loans, repairs, allowance for depreciation, legal expenses
concerning income beneficiaries, taxes on receipts considered income
ii.. principal - cost of investing principal,
capital improvements, legal expenses concerning principal beneficiaries, income
tax on capital gains
i.. unitrust approach - beneficiaries receive fixed
percentage of the value annually
8.. Accountings - trustee has duty
to keep accurate records of all transactions
a.. most states allow beneficiary to make a
reasonable request once a year for an accounting
b.. if the instrument waives it, you do not have to
do an accounting
9.. Compensation - most states allow compensation
unless the trust specifically states that the trustee is not to be paid
a.. trustee may determine own salary using a
statutory fee schedule based on value of trust, amount of trust transactions,
or whatever compensation is reasonable under the circumstances
b.. determination of reasonableness - use the
following factors: time, gross income, appreciation, unusual or special skills,
loyalty to trust, risk assumed, fees charged by other trustees, character of
work, trustee’s own estimate of the value of services
10.. trust modifications - under proper
circumstances the terms of a trust may be modified
a.. by court - judicial
modifications fall into two categories:
i.. deviation - the trustee may deviate from the
settlor’s instructions if court is convinced settlor would have agreed;
deviation usually occurs if:
a).. purposes have been fulfilled
b).. purposes have become illegal
c).. purposes are now impossible to fulfill
d).. compliance with terms of trust would defeat or impair
ability to
accomplish purposes of the
trust
ii.. cy pres - use to provide a substitute beneficiary for a
charitable trust
b.. by parties
i.. settlor - under most states the settlor has
these powers only if the trust instrument specifically reserves them to
the settlor; or if there is an inter vivos document signed by settlor
and delivered to the trustee during the trustees lifetime
a). most states say gifts are irrevocable, but CA
holds that trusts are PRESUMED revocable;
b). may be made irrevocable if there is a provision
in the trust that makes it irrevocable (tax benefits, enhanced creditor
protection)
c).. should always provide in the trust expressly if
the trust is revocable or not
ii.. trustee - normally lacks power to make
unilateral changes to trust unless trust instrument or state law gives power
a). if there is an uneconomically low corpus - can
go to court and ask for a termination; if under $20,000 trustee can terminate
trust without having to go to court first
iii.. beneficiaries - may consent to modification
a).. if irrevocable trust - beneficiaries can agree
to modify or terminate (15403); need unanimous, and court approval
b).. court will not automatically grant this if
there are any material purposes remaining; CA does not adopt material purpose
test strictly because the material purposes can be overcome if the problems
outweigh the material purposes
c).. court cannot terminate if there is a
spendthrift provisions - and most trusts have spendthrift provisions, and
the beneficiary therefore cannot terminate the trust (may still be able to
modify)
d).. can modify irrevocable trust if all
beneficiaries AND settlor agree (15404)
iv.. family settlement doctrine - parties may agree to a
settlement that
includes changes to the trust; the settlement must
concern a genuine controversy
11.. Trust termination - upon termination, remaining
trust property becomes reunited in the hands of the remainder beneficiaries
a..
express terms of trust (15407) - most typical
b..
revocation by settlor - only if a revocable trust
c..
termination by beneficiaries - most courts will not allow termination if any
material purpose remains
d.. merger - trustees and beneficiaries can unite
all legal and equitable title in one person
e.. lack or property - terminate if trust runs out
of property
f.. court order - if purposes have been fulfilled;
general court order OR deviation
g.. trust purpose becomes
illegal, fulfilled, or impossible
h.. economically low principle - either determined
by trustee (if under $20,000) or by court
i.. unanimous beneficiary consent - no material
purpose remains, or if one does remain, the court agrees that termination is
appropriate unless spendthrift clause
j.. all beneficiaries and settlor consent
k.. duties of trustee upon termination -
trustee can exercise trust powers for the reasonable period of time necessary
to wind up the affairs of the trust
-/- follow instructions of trust instrument
-/- follow agreements if beneficiary and settlor
agreed; 15410 - distribution of the remaining property
D.. Trust Enforcement
1.. procedural matters
a.. person must have standing - usually beneficiaries an
trustees
b.. jurisdiction and venue must be correct - go to
superior court (17000); the county depends whether it was testamentary (can
choose either the place where state is being administered or the principle
place of administration 17005) or inter vivos (county of principle place of
administration)
i.. if dealing with internal affairs of the trust
you are not entitled to a jury trial (17006)
2..
remedies against the trustee
a.. money damages (16440) - four basic methods to
compute money damages when holding a trustee personally liable for a breach;
MOST COMMON
i.. lost value - award of loss or
depreciation of value
ii.. profit made by trustee - profit
trustee gained
iii.. lost profits - profits the trust would
have earned had the duty not been
breach
iv.. punitive damages - an intentional breach is
considered a tort in many states and may justify punitive damages
b.. removal of trustee (15642) - courts may remove
trustee if there is a showing of cause; examples of conduct constituting cause;
SECOND MOST COMMON:
i.. breach of trust - violates investment standard of
care, self deals, etc.
ii.. trustee becomes insolvent - no one to hold liable
if trustee insolvent
iii.. trustee becomes incompetent
iv.. other causes - any cause which court believes is
sufficient
v.. lack of cooperation among co-trustees
vi.. excessive compensation of trustee
vii.. generally a trustee is not liable for the bad acts of a
prior trustee,
unless new trustee does not
pursue the old trustee, etc.
c.. pre-breach remedies - before a breach of trust
actually occurs several remedies are available:
i.. decree to carry out the trust - court
order to carry out duties; this is an easy, non-stressful option
ii.. injunction
(16420a2) - prevent trustee from performing improper act
iii..
appointment of receiver - person who can quickly take possession of
trust property if court fears
trustee will not obey an injunction
iv.. increase bond -
increase or require bond
v.. declaratory judgment - ask the court
whether something would be a breach; courts are leery of doing this unless
there is an immediate and genuine legal problem
d.. criminal sanctions - misapplication by
fiduciary; severity of crime depends on amount of money put at risk
3.. remedies involving trust
property
a.. tracing - to recover
actual trust property or proceeds; may not trace if BFP
i.. tracing distinct items - just grab the items
ii.. tracing commingled items - harder, make a chart separating
the money
based on its source and
evaluate each transaction based on applicable rules
b.. subrogation - subrogate the rights of the
creditor who was paid; one creditor steps into the shoes of another thus
getting the same position as the creditor who was paid
c..
marshalling - may be able to force trustee to marshal claims;
d..
bona fide purchasers - when person pays value for the property AND
without notice of the trust,
the person is a BFP; cannot recover against a BFP
i.. CA - act in good faith; pay valuable consideration; be without actual knowledge that the trustee is exceeding his powers, or improperly exercising them
ii.. common law - third element was you had to be
without knowledge that you were dealing with a trustee
e.. CA - if the decedent’s estate is inadequate to
pay settlor’s claim, the property in a trust is subject to creditor’s claims
(in a revocable trust which becomes irrevocable when the creditor dies - makes
sense because while settlor was alive, creditors could reach property in a
inter vivos revocable trust); if the creditor could have got it while
the settlor was alive, they should be able to get it when they are dead
4..
remedies against the beneficiary - beneficiary is liable if
a..
misappropriation or wrongful dealing with trust property
b..
consenting to or participating in a breach with the trustee
c..
failure to repay a loan of trust funds
d..
failure to repay an excess distribution
e..
16249b - unique to CA - a person who wrongfully takes or conceals trust
property is subject to double damages (does
not apply to negligence); liable for twice the value of the property
5..
causes of action against third parties - torts, contracts
6.. barring
of remedies - a beneficiary might be barred from recovering in
certain circumstances
a.. settlor’s approval in trust instrument - settlor may authorize breaching conduct; an exculpatory clause - CA permits these (16461)
i.. exception - cannot exculpate willful or evil
conduct; can only exculpate negligent breaches
ii.. exception - cannot exculpate a breach that
causes trustee to make a profit
b.. prior approval or ratification by beneficiary
c.. court decree - court may relieve trustee from
any duty, limitation, or restriction
d.. statute of limitations - time varies; usually
begins to run when the beneficiary actually knows or should have known by
reasonable diligence that the trustee breached the trust
i.. CA - if the matter is revealed in the
accounting, the beneficiary must bring suit within three years, or the SOL runs
ii.. CA - if
the beneficiary discovers the breach or should have discovered the breach, the
SOL is three years from that time
e.. laches - if there is a to much delay between
assertion of beneficiary rights, trustee may not be able to defend himself
adequately and therefore claim is barred
f.. revocable trust - if the settlor is not
complaining the beneficiaries cannot sue trustee
g.. beneficiaries can consent to a breach - 16463,
64, 65 - there must be a full revelation of everything in regard to the breach
so that the beneficiary is consenting with full knowledge
h.. can beg the court to relieve trustee of
liability -
E.. Resulting Trusts - arises by operation of law
when facts and circumstances show that a person had the intent to hold
equitable title to the property although legal title is in the hands of another
(often called implied trusts); do not have trust terms, do not involve
ongoing fiduciary relationship; beneficiary is person who had implied intent to
hold equitable title; can only be for the settlor (or if deceased successor’s
in interest, heirs or survivors); imply trust-like relationship with goal of
carrying out person’s intent
1.. failure to create express trust - resulting
trust may arise if settlor did not indicate trust purpose, describe
beneficiaries specifically, or comply with RAP; and settlor never said what to
do if trust was not valid
a.. semi-secret trust - where there is an express
statement there is to be a trust, but its terms are not set forth; example in
book might work in CA under §15205;
would fail for indefiniteness and property would revert back
2.. failure of express trust to dispose of all trust
property - a resulting trust will be created
a.. express trust with a corpus that is too big -
usually caused by sloppy drafting; trust to care for X for X’s life, at end of
X life property is left over but no residual clause. Goes back to settlor or settlor’s successor’s in interest; called
an implied reversion
3.. purchase money resulting trust (PMRT) -
if the person who pays the purchase price for property does not receive title
to that property but instead directs the seller to transfer the property to
another person
a.. buyer gives money to seller, but instead of
title going to buyer it goes to someone else upon purchase
i.. this could be interpreted as a gift
(donor/donee); usually parent child and husband and wife; law presumes gift if
it is one of these two relationships
ii.. could be interpreted as a loan
(creditor/debtor); expectation is repayment of loan
iii.. could also be interpreted as a PMRT (settlor
or beneficiary/trustee); settlor beneficiary intended to have an interest in
the property and the trustee was only supposed to be holding legal title
a). example: go to car dealer, man buys car for
friend, friend gets car, in this situation the law presumes a PMRT (unless
there was extrinsic evidence to show the property was a gift)
F.. Constructive Trusts - an equitable remedy
a court imposes to prevent unjust enrichment; court adapts the split of title
attribute when a person acquired title to property in an unconscionable manner;
court decides that person holds ONLY legal title; a remedy, so you have
to plead and ask for it; must show a connection between the property
you want constructive trust over and the evil conduct
1..
plaintiff must be able to identify particular property that was taken
2..
plaintiff must not be unjustly enriched
3.. types
of conduct that give rise to constructive trusts:
a.. fraudulent conduct - knowingly made a
false representation to Plaintiff that P reasonably relied on (very common)
b.. abuse of confidential relationships -
relationship is confidential if person’s guard was let down and they were not treating
the other person as if they were in an arm’s length transaction
c.. unperformed promises made in
contemplation of death - if one person induces the transfer of property and
promises to do something with the property at a later time, but then reneges on
the promise (sometimes called secret trust)
G.. Trust bank accounts - contracts; just like Pay
on Death accounts
1.. not a
trust; no split of title
2.. just
like a POD account
3..
example: A in trust for B (just like a POD account)
a..
NOT A TRUST
b..
advise a client to use a POD account instead
c..
POD - no tax or creditor protection, but benefit is, not part of probate estate
VI..
Conclusion
A.. exam information
1.. Saturday September 4, 3-6pm
2.. totally closed book, closed code
a.. the bar is closed book,
closed code
3.. kinds of questions - will get
point and time suggestions
a.. objective - 75 questions, mostly multiple
choice, a few true false, fill in scan-tron sheet, 75 points; spend about 1.5
hours on this portion; questions are evenly spread throughout the course; about
2-3 questions from each day’s class period
b.. essay - 3 questions, each worth 25 points; space
is limited (5-15 lines per section) predominantly: (how much does a certain
person get, discuss here; who gets this asset, discuss here) can use computer,
but have to stick to number of lines; total essays fit on 11 sheets of pages
(some short sheets)
i.. intestacy
ii.. wills
iii.. trusts
4.. bring writing materials and may bring a
calculator (but nothing really needs a calculator)
5.. see Internet for e-mail and office hours
6.. no citations to probate code sections, no extra
credit for code sections
7.. use CA law unless indicate otherwise
8.. Hints for exam/common mistakes
a.. read questions VERY carefully (25% of errors on
essay are caused by misreading facts); will need to keep track of facts, dates,
who has which children
b.. don’t make problems on essay tougher than they
are; if he says the will is valid, it is.
Don’t need to go through validity elements. Might say “discuss the two elements of the trust that are most at
issue”
c.. objective questions -
i.. multiple choice - some
have only one right answer
ii.. multiple choices - some ask you to select all
correct choices (could be 1 - 4 correct answers); all correct choices, and NO
incorrect choices in order to get credit; there is always at least one correct
answer
d.. essay - since they are divided into subparts,
you have lots of time to think; only have to write three to four pages per
question, and have 30 minutes per questions; don’t make up your own question
i.. look
for missing facts; questions might lack facts that you need
ii..
don’t have to fill up all the space - can still get a good grade by filling
up half the space
iii.. key thing is to find issues; failure to find
issues is the number one problem students have on exams
a). need a correct and relevant statement of the
applicable law after you find the issue; most people will get the statement of
the law correct
b). analyze the law - apply the laws to the facts
and reach a conclusion; many questions have a right answer so your conclusion
should be right; points will be given for the conclusion itself if there is a
clear way it should come out
e.. time constraints - budget time carefully; lots
of reading and thinking; don’t waste you time trying to get the really hard
questions and not have enough time to get the easy ones
B.. common mistakes (most common to least
common)
1.. issue spotting
2.. weak analysis
3.. misreading facts
4.. not knowing law
C.. curve will be balanced between both
classes
D.. final thoughts
1.. enjoyed having the class
2.. thanks for helping me feel
welcome at SCU
3.. being in class is a lifetime
license to contact Beyer for any information
you
might ever need; we will always be one of his
students and therefore always can call him
4.. ready to enter a very noble profession; ability
to help people but also to do tremendous harm
a.. try
not to use the profession for evil
b.. be
dedicated, ethical, help the profession
5.. good luck on exam, future, professionally!