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NextGen Bar: Trusts and Estates

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Trusts and Estates

Wills

A valid will requires testamentary capacity, intent, signature, and two attesting witnesses, or compliance with holographic-will rules where recognized. Revocation may occur by physical act, by subsequent instrument, or by operation of law (such as divorce). Revival requires re-execution or dependent relative revocation. Contests allege defective execution, lack of capacity, undue influence, fraud, or duress.

Intestacy

Statutes distribute first to the spouse and issue; shares vary by state. Per stirpes and per capita computations are a favorite trap. Advancements, disclaimers, and simultaneous-death rules affect distribution.

Trusts

A valid trust requires intent, identifiable beneficiaries, res, and a valid purpose. Spendthrift clauses shield beneficiaries from creditors. Revocable trusts avoid probate. Trustees owe duties of loyalty, prudence, impartiality, and accounting; self-dealing is barred absent authorization. Charitable trusts are enforced by the attorney general.

Doctrines

Lapse and anti-lapse statutes govern when a beneficiary predeceases the testator; ademption applies to specific devises; abatement orders which gifts fail when the estate is insufficient; pretermitted-heir statutes protect children born or adopted after execution.

Worked example

T devises the 2015 Honda to her nephew. T later sells the Honda. The specific devise adems, and the nephew generally takes nothing absent a statutory exception.

Rule of thumb: test execution first, then revocation, then distribution - in that order.