Trusts and Estates: Wills, Intestacy, and Trusts
What the exam tests
Trusts and estates questions test will formalities, capacity, revocation, intestate succession, trusts, trustee duties, and the Rule Against Perpetuities. The UPC and Minnesota statutes often supply default rules.
Core rules
- Will formalities: testator must have testamentary capacity and intent, sign the will, and have two witnesses attest in the testator's presence. Holographic wills may be valid if material terms are in the testator's handwriting and signed.
- Revocation: by subsequent writing, physical act with intent, or operation of law. Revocation by physical act requires intent and an act such as burning, tearing, or cancelling.
- Intestacy: spouse and descendants share under statute; per stirpes distribution. Adopted children generally inherit; stepchildren usually do not absent adoption.
- Anti-lapse: if a beneficiary is a descendant of the testator and predeceases, the beneficiary's issue may take.
- Trusts: express, resulting, and constructive. Trustee duties include loyalty, prudence, impartiality, and accounting. Spendthrift clauses limit creditors.
- Rule Against Perpetuities: interests must vest or fail within 21 years after a life in being. Wait-and-see and cy pres may apply.
Worked example
T's will leaves $50,000 to my daughter Dana. Dana predeceases T, leaving a child. Under the anti-lapse statute, Dana's child takes the gift because Dana is T's descendant and the gift would otherwise lapse. If the gift were to a friend, anti-lapse would not apply unless the statute covers the relationship.
Traps
Do not ignore witness requirements. A will can be invalid even if signed if formalities fail. Anti-lapse applies only to covered relatives. Trust assets generally avoid probate but not creditors.