Trusts and Estates (Wills, Intestacy, Trusts)
Trusts and Estates tests wills, intestacy, trust creation and administration, fiduciary duties, and future interests. Start with the instrument, then apply default statutes.
Core rules
- Intestacy: spouse, descendants, parents, and collateral heirs; per stirpes versus per capita distribution.
- Wills: testamentary capacity, formalities, holographic and nuncupative wills, revocation, and revival.
- Lapse and anti-lapse statutes; ademption; abatement; advancements.
- Trusts: express, resulting, and constructive; spendthrift protection; trustee duties of loyalty and care; powers of appointment.
- Future interests and the Rule Against Perpetuities; elective share and omitted heirs.
- Probate versus nonprobate transfers.
Worked example
Testator's will leaves the residue to my children, but if any child predeceases me, to that child's issue. Child C predeceases Testator leaving issue. Under an anti-lapse statute, C's issue take C's share if C is within the protected class. Without the statute, the gift lapses and falls into residue. A holographic will requires material terms in Testator's handwriting and signature.
Traps
A holographic will still needs the required handwriting and signature. Undue influence requires substitution of intent. Ademption applies to specific gifts that no longer exist. A spendthrift clause limits creditors but not certain exceptions.