Highlights 1

1. In writing & signed by surviving spouse.

2. Satisfies CPC 143: enforceable unless
no fair & reasonable disclosure or no
independent legal counsel
3. If flunks 143, try 144: waiver made fair
& reasonable disposition at time of
signing, or surviving spouse knew of
spouses prop & financial obligations BUT
 Highlights 2
Court can still refuse to enforce if waivers
terms are unconscionable now

Alter/amend/revoke: Same steps as

creating the waiver.
 Highlights 3
CP v. QCP
CP: Each spouse owns from moment
property is acquired
QCP is acquiring spouses SP. Must die in
correct order for other spouse to have
interest.
What if acquiring spouse gives away QCP
IV?
 Highlights 4
Omitted spouse/child: Need correct
sequence
Valid will or IV revocable trust
T marries or T has a new child
T dies without updating will or IV trust

2 more for omitted child: Unaware of

childs birth or thinks child is dead
 Omitted spouse vs. omitted
child: Exceptions
Omitted spouse: Omitted child:
1. intentional 1. intentional
omission omission
2. provided for 3. provided for
outside of will/trust outside of will/trust
3. valid agreement 2. Deceased had 1 or
more kids & devised
most to omitted
childs parent
 Last Highlight
If omitted spouse/child receives a share,
where does that share come from?
First: intestate assets
Then: All beneficiaries pro rata, unless
that defeats Ts obvious intention in
relation to some specific gift or devise.
 Today: Trusts!
General rules of law = majority/minority
NOT California law

Why is a trust non-probate? Who holds

title to the property?
 Supplements (optional)
Understanding Trusts & Estates by Roger
Andersen (LexisNexis)
Q & A: Wills, Trusts & Estates by Thomas
Featherston, Jr. (Lexis/Nexis)
CALI exercises on Trusts on TWEN
 Types of trusts
Who chooses?
Inter vivos or testamentary
If IV: revocable or irrevocable
declaration or
deed of trust

If testamentary: choices for types of trusts?

 Scenario #1
Ms. Halavi land in California, Nevada and
Arizona. She establishes a revocable IV
trust of all her real property for the benefit
of herself for her life, and then to her
children.

Why would Ms. Halavi this trust?

 Scenario #2
Mary has two children, Ann and Bob. Ann is
developmentally challenged, and will never
be able to live independently.

Mary seeks advice from her attorney, Ms.

Hyjek. Should she write a will giving all to
Ann and Bob? Should she give it all to Bob
and hope he will take care of Ann? Should
she create a trust?
 Scenario # 3
Grandpa Greg (age 95) has 6 great
grandchildren. 2 are still in high school;
the others are attending college or graduate
school. He would like to provide something
for the GGC, but realizes the amounts they
need each year will vary.

Grandpa asks his attorney, Ms. Kail: Should

he create a trust?
 Scenario #3A
Another wrinkle: One of the GGC, Harvey,
is often in debt, and creditors are
threatening to seize his house.

Grandpa Greg asks Ms. Kail: Can he

keep Harveys creditors from seizing the
assets in the trust?
 Scenario #4
Ms. Kelledy represents Mr. Colburn, who
has just married wife #10. Mr. Colburn
wants to provide for wife #10, but also wants
to leave something for his children from
marriages 1-9.

Should Ms. Kelledy draft a will giving all to

wife #10 with the hope she will provide for
the kids, or a trust?
 Scenario #5
Dan is a single parent with 8 children ages
1-8. He consults with Mr. OReilly-Jones
regarding an estate plan for his kids if he
dies.

Should Mr. OReilly-Jones recommend a

will giving all the property to Dans 8 kids,
or a trust?
 The Settlor, Trustee,
and Beneficiaries
Trust Property

Settlor Trustee
Promise to manage property
in best interests of Beneficiaries

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Beneficiaries
 3 roles in trusts
Creator of trust = settlor = grantor = trustor

Trustee = holds legal title for benefit of

another

Beneficaries = hold equitable title & get

benefits of trust
 Trustee
Fiduciary trust does not end when
trustee dies or quits.

Creditors of trustee as an individual cant

go after trust property.
 Third-Party Rights

Claims
re: Creditors
p r o perty
as trustee tru s t of the
e n t s from
Paym
t p r o p erty Trust
trus
Trustee
Claim
perso s re:
nal p
individual roper
ty
Creditors
Paym
perso ents from
nal p
of the
roper
ty Individual
 Duties of trustee P. 395
2 big duties:
Duty of loyalty to beneficiaries
Duty of prudence in managing trust prop
Subsidiary rules:
Duty of impartiality
Duty not to commingle
Duty to account to beneficiaries
 Who should be trustee?
A trust = someone (trustee) holding
property for the benefit of another
(beneficiary).
My will: $1,000 to A to take care of my
dog.
Bill Gates: $100M to support poor people
 Beneficiaries
Can hold trustee to account
Trustee is personally liable to beneficiaries
for breach of trust
Trust pursuit rule:
Ex: Trustee gives trust prop to her sister.
Ex: Trust says trustee has no right to sell
Blackacre. Trustee sells Blackacre for
market price, buys Whiteacre.
 Trust v. Legal Life Estate
1st Year Property: Baker v. Weedon
Hs will gave his real property to his W for life,
remainder to her kids, otherwise to his
grandchildren. W had no kids.
Income on property = $1300/ year.
W wanted to sell; GC wanted to keep the
property.
Compare: RP to W as trustee for W for life, then
to her kids, otherwise to his GC.
 Legal Life Estate
Can Wife sell the real property?
Can W get a mortgage on the property?
Can W lease the property to a 3 rd party?

How can Wife get income on the property

to pay the taxes, insurance, upkeep etc?
 Trust with W as Trustee
Can Wife sell the real property?
Can W get a mortgage on the property?
Can W lease the property to a 3 rd party?

How can Wife get income on the property

to pay the taxes, insurance, upkeep etc?
 5 Elements of a trust
1. Intent to create a trust
2. Trust property = Res
3. Proper parties
4. Is a writing required?
5. Is delivery required? Depends on trust:
IV or testamentary? If IV: declaration or
deed?
 Along the way
If this isnt a trust, what is it?

Keep track of the possibilities:

E.g., Hebrew U v. Nye
Unthank v. Rippstein
Searights Estate
 Element # 1
Intent to create a trust

To create a trust, must the word trust be

used???

Similar issue in Wills: Can a letter be a

will? A fender? Even if it isnt labeled
Last Will???
 Lux v. Lux,
288 A.2d 701 (R.I. 1972)
Lux v. Lux

2. All the restof my estateI give to my

grandchildren, share and share alike.
3. Any real estateshall be maintained for the
benefit of said grandchildren and shall not
be sold until the youngest of said
grandchildren has reached twenty-one years
of age.
4. Should it become necessary to sell any of
said real estate to pay my debtsit is my
express desire that said real estate be sold
to a member of my family.

Did Philomena intend[] that her real estate be held

in trust for the benefit of her grandchildren? (p. 401)
 Element 1
Intent to create a trust:
Did Philomena intend that property be
held by A for the benefit of B?
Any real estate shall be maintained for
the benefit of my grandchildren and shall
not be sold until the youngest is 25.
 Lux v. Lux
If this is a trust, who is the trustee?
A trust will not fail for want of a trustee.
 Jimenez v. Lee: P. 403
Elements of a trust:
1. Intent to create a trust
2. Trust property = Res
3. Proper parties
4. Is a writing required?
5. Is delivery required? Depends on trust:
IV or testamentary? If IV: declaration or deed?
Compare trust to custodianship
Why did Judge Lee want to be a
custodian, not a trustee?
Duties
Uses of property
Statute of limitations
 Jimenez
How many breaches of trust can you find?

What are the remedies?

Can Judge Lee offset any expenditures?

 Jimenez
Once Judge Lee has accepted as trustee,
can he simply resign?

Common law:

Modern law (UTC):

 Ann Landers
P. 407: College account for daughter with
parents as trustees.
If the funds are gone, there is no way
you can get them back.
Correct advice?
 Hypo # 1
Fred left his estate to his cousin Mr.
Chakon in his valid will, stating It is my
wish & desire that Mr. Chakon mail parcels
containing food, clothing, jewelry etc to the
following named relatives in the Soviet
Union.
Is this a trust? If not, what is it?
 Hypo # 2
T left a valid will devising her property to
her children, and requesting that Ts
children pay her sister-in-law Ms. Cismas
$208.33/month each for as long as she
lives.
Is this a trust? If not, what is it?