Trusts and Estates - Wills, Intestacy, and Trusts
Trusts and Estates tests wills, intestacy, trust creation, fiduciary administration, and termination. Start with the governing instrument; if none, apply intestacy.
Wills and intestacy
- A will requires testamentary capacity, intent, and formalities: writing, signature, and witnesses.
- Revocation by physical act or later instrument; revival requires republication.
- Intestacy passes to spouse, descendants, parents, and siblings in statutory order. A surviving spouse's share depends on descendants and on separate versus community property.
Trusts
- A trust requires settlor, res, trustee, beneficiary, and intent.
- Trustee duties include loyalty, impartiality, and prudent investment.
- Spendthrift clauses protect beneficiary interests from creditors; termination may require all beneficiaries and no material purpose.
Worked example
T signs a will leaving all to A, witnessed by A and two others. A is an interested witness. Under the common-law interested-witness rule, the gift to A may be void unless there are enough disinterested witnesses. If the will has two other valid witnesses, the gift may survive. The result depends on the jurisdiction's statute.
Traps
Do not confuse holographic wills with attested wills. Do not assume a trust is invalid because the trustee is also a beneficiary. Do not overlook ademption and lapse.