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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.