Chapter 46Wills and Trusts

Chapter 46Wills and Trusts

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What are the basic requirements for executing a will?

How may a will be revoked? What is the difference between a per stirpes

and per capita distribution? What are the four essential elements of a

trust? What is the difference between an express

trust and an implied trust?

What are the basic requirements for executing a will?

How may a will be revoked? What is the difference between a per stirpes

and per capita distribution? What are the four essential elements of a

trust? What is the difference between an express

trust and an implied trust?

Learning ObjectivesLearning ObjectivesLearning ObjectivesLearning Objectives

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WillsWills Will provides for a Testamentary disposition of

property by the Testator (one making the will). A will is the final declaration of how a person desires to

have his or her property disposed of after death. Die testate (One who dies after having made a

valid will) or intestate (without a will). Executor is a personal representative named in

the will. Administrator appointed by court.

Will provides for a Testamentary disposition of property by the Testator (one making the will). A will is the final declaration of how a person desires to

have his or her property disposed of after death. Die testate (One who dies after having made a

valid will) or intestate (without a will). Executor is a personal representative named in

the will. Administrator appointed by court.

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Types of GiftsTypes of Gifts

Devise: gift of real estate.Bequest or Legacy: gift of personal

property.Types of Gifts: specific, general, or

residuary .Abatement.Lapsed Legacies.

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Probate ProceduresProbate Procedures

Informal Probate Proceedings.Family Settlement Agreements.Small Estates.

Formal Probate Proceedings.Larger Estates.Guardianship appointment to a minor or

incompetent person and trust has been created to protect that minor or incompetent person.

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Requirements for a Valid Will

Requirements for a Valid Will

Testamentary Capacity and Intent.Writing Requirements.Signature Requirements.Witness Requirements.Publication Requirements.

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Revocation of WillsRevocation of Wills

Revocation by a Physical Act of the Market.

Revocation by a Subsequent Writing.Revocation By Operation of Law.

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Intestacy Laws Intestacy Laws

Statues of descent and distribution which attempt to carry out the likely intent and wished of the decedent.Surviving Spouse and Children, Not in-laws.Stepchildren, Adopted children, Illegitimate

children.Grandchildren.

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Surviving Spouse and Children

Surviving Spouse and Children

Surviving spouse usually receives only a share of the estate.1/3 if two or more children.1/2 if one surviving child.Entire estate if no children or grandchildren.

If no surviving spouse or child the order of inheritance is:Lineal descendants.Collateral heirs (if no lineal descendants).

Not spouses of the children, in-laws.

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Stepchildren, Adopted Children, Illegitimate

Children

Stepchildren, Adopted Children, Illegitimate

ChildrenStepchildren -- not considered children of

deceased.Adopted children -- considered children

of deceased.Illegitimate -- must prove paternity.

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Per Stirpes DistributionPer Stirpes Distribution

(Intestate). Method of dividing an intestate share by which a class or group of distributees take the share that their deceased parent would have been entitled to inherit had that parent lived.

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Per Capita DistributionPer Capita Distribution

(Intestate). A class or group of distributees equally share in the inheritance.

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TrustsTrusts

Trust -- A right of property (real or personal) held by one party for the benefit of another.

Trustee: holds property on behalf of the Beneficiary. Act with honesty, good faith, and prudence in

administering the trust and must exercise a high degree of loyalty toward the trust beneficiaries.

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Essential Elements of a Trust

Essential Elements of a Trust

Essential Elements:Designated beneficiary.Designated trustee.Fund sufficiently identified to enable title to

pass to the trustee.Actual delivery to the trustee with the intention

of passing title.

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Express TrustsExpress Trusts

Living Trusts.Testamentary Trusts.Charitable Trusts.Spendthrift Trusts.Totten Trusts.

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Implied TrustsImplied Trusts

Constructive Trusts.Arises by operation of the law in th interest of

equity and fairness.

Resulting Trusts.Arises from the conduct of the parties.

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Special Types of TrustsSpecial Types of Trusts

Spendthrift Trust: Beneficiary is only permitted to withdraw a certain portion of the total amount of the trust at any one time.

Totten Trust: one person deposits funds in her name for benefit of another.

Spendthrift Trust: Beneficiary is only permitted to withdraw a certain portion of the total amount of the trust at any one time.

Totten Trust: one person deposits funds in her name for benefit of another.