Wills and Trusts Exam Checklist

Start by sorting every asset in the fact pattern into a bucket, because different rules govern each. Probate assets pass by will or intestacy. Nonprobate assets — life insurance, POD/TOD accounts, joint tenancies, retirement plans, inter vivos trusts — pass outside the will regardless of what the will says. Students lose points by applying antilapse or the elective share to a life insurance policy without noticing the difference.

Then run the sequence: (1) Is there a valid will? (2) Was it revoked in whole or part? (3) What does it mean and who takes? (4) Do protective doctrines override the plan (elective share, omitted spouse or child, slayer rule, disclaimer)? (5) If a trust exists, is it validly created, and what are the beneficiaries' and creditors' rights? (6) Did the fiduciary breach a duty, and what is the remedy?

Say which law you are applying. Many exams are UPC-based; some are common law or a specific state. If your professor has not told you, state the rule both ways when they diverge — execution formalities, antilapse and words of survivorship, and revival of revoked wills are the classic split points.

Attested wills require a writing, signature by the testator (or by another in the testator's presence and at the testator's direction), and signing by two witnesses. UPC § 2-502 requires the witnesses to sign within a reasonable time after witnessing the signing or the testator's acknowledgment, and the 2008 UPC permits notarization as an alternative. Non-UPC states often demand stricter compliance: witnesses in the testator's presence (line-of-sight versus conscious presence), publication, or signature at the foot of the will.

If formalities fail, argue the curative doctrines. Substantial compliance (In re Will of Ranney) and the harmless error rule of UPC § 2-503 excuse defects if there is clear and convincing evidence the decedent intended the document as a will. Harmless error is applied most readily to defects in witnessing and least readily to a missing signature. Holographic wills under UPC § 2-502(b) need only the signature and the material portions in the testator's handwriting; older statutes require the will to be entirely handwritten, which raises the printed-form problem.

Then test capacity and the will contests. Testamentary capacity requires that the testator understand the nature and extent of the property, the natural objects of bounty, the disposition being made, and how those relate to form an orderly plan. Insane delusion invalidates only the parts caused by the delusion. Undue influence is the heavy hitter: look for a confidential relationship plus suspicious circumstances (procurement of the will, secrecy, unnatural disposition, weakened condition), which shifts the burden to the influencer. Also check fraud in the execution versus in the inducement, duress, and tortious interference with an expectancy where recognized. Under UPC §§ 2-517 and 3-905, a no-contest clause is unenforceable if the contestant had probable cause.

Revocation happens by subsequent writing (express or by inconsistency) or by physical act done with intent to revoke. Thompson v. Royall is the standard trap: words of cancellation that do not touch the language of the will fail at common law, though UPC § 2-507 requires only that the act affect some part of the document. If the will was last in the testator's possession and cannot be found, or is found mutilated, a presumption of revocation arises (Harrison v. Bird).

If revocation was premised on a mistaken belief — usually that a new disposition would be effective — argue dependent relative revocation to disregard the revocation and probate the old will, but only if that outcome is closer to intent than intestacy. Revival splits: UPC § 2-509 revives Will 1 if the evidence shows the testator intended it to take effect, while some states hold revocation of Will 2 automatically revives Will 1 and others never revive absent re-execution or republication by codicil.

Change-of-circumstances revocations matter too. UPC § 2-804 revokes provisions in favor of a former spouse in both wills and revocable will substitutes; Sveen v. Melin upheld retroactive application of such a statute against a Contracts Clause challenge, but Egelhoff v. Egelhoff holds ERISA preempts these statutes as to plan benefits.

Classify each devise as specific, general, demonstrative, or residuary; the classification drives ademption and abatement. A specific devise adeems by extinction if the property is not owned at death, subject to UPC § 2-606's replacement-property, unpaid-balance, and intent-based exceptions. Abatement takes from residuary first, then general, then specific. UPC § 2-607 abolishes exoneration of liens absent a specific directive, so 'pay my debts' language does not clear the mortgage.

For a predeceasing beneficiary, run lapse then antilapse. UPC § 2-603 substitutes the devisee's descendants when the devisee was a grandparent or a descendant of a grandparent, and — a key UPC departure — mere words of survivorship such as 'to my surviving children' do not defeat the statute. If antilapse does not apply, a lapsed residuary share passes to the other residuary takers under UPC § 2-604, not to intestacy. Class gifts absorb the share of a class member who dies before execution.

Intestacy under UPC § 2-102 gives the surviving spouse everything when there are no descendants or parents, or when all descendants are the spouse's and the spouse has no others; otherwise the spouse takes a fixed dollar amount plus a fraction (the amounts are indexed and vary by state). Descendants take by representation using per capita at each generation (§ 2-106), which differs from classic per stirpes and from the older per capita with representation. Check the 120-hour survival requirement (§§ 2-104, 2-702), adoption and stepchild status, nonmarital children, and UPC § 2-114 barring a parent who abandoned the child.

A surviving spouse can elect against the will. The 2008 UPC gives 50% of the marital-property portion of the augmented estate, with the marital-property percentage accruing over fifteen years of marriage, plus a supplemental elective share for small estates. Older UPC versions and many states use a flat fraction of the probate or augmented estate. The augmented estate concept is the point: it reaches revocable trusts, POD accounts, and certain lifetime transfers, defeating the fraud-on-the-widow workaround. Community property states use a different regime entirely — no elective share, but a half interest in community assets.

Then check omitted-spouse and omitted-child protection (UPC §§ 2-301, 2-302), homestead, exempt property, and family allowance, the slayer rule (UPC § 2-803), and qualified disclaimers, which treat the disclaimant as predeceased and generally defeat creditors but not federal tax liens. Where a will fails for fraud or a promise, argue a constructive trust — Latham v. Father Divine — and use the same tool for secret trusts; semi-secret trusts traditionally produce a resulting trust to the estate.

Under UTC § 402, a trust needs a settlor with capacity, present intent to create a trust, a definite beneficiary (or a valid charitable, pet, or noncharitable purpose trust under §§ 405, 408, 409), a trustee with duties, and — for private trusts — trust property. Precatory language creates no trust (Unthank v. Rippstein), an indefinite class like 'my friends' fails the definite-beneficiary rule (Clark v. Campbell), and merger applies only when the sole trustee is the sole beneficiary. Oral trusts are provable by clear and convincing evidence under UTC § 407, but land requires a writing under the Statute of Frauds. Farkas v. Williams settles that a revocable trust with the settlor as trustee and life beneficiary is not an invalid testamentary transfer.

For creditor questions, separate the beneficiary's creditors from the settlor's. A spendthrift clause blocks voluntary and involuntary alienation, but UTC § 503 excepts child and spousal support, a judgment for services protecting the interest, and government claims. Discretionary interests are largely unreachable (§ 504) even by exception creditors, absent an abuse of discretion. Under § 505, a settlor's creditors reach the maximum the trustee could distribute to the settlor, which makes self-settled trusts vulnerable except in the minority of states with asset-protection statutes. A revocable trust remains fully reachable during the settlor's life and answers to creditors at death.

Modification and termination: the settlor may amend a revocable trust; for irrevocable trusts, run consent termination against the material purpose limit (Claflin; UTC § 411), unanticipated-circumstances modification (§ 412), cy pres for charitable trusts whose purpose becomes impracticable (§ 413), and termination of uneconomic trusts (§ 414). Decanting and nonjudicial settlement agreements are the modern alternatives where the statute allows.

Trustee duties are the easiest points to bank. Loyalty (UTC § 802) applies the no-further-inquiry rule: self-dealing makes the transaction voidable without proof of good faith or fair price. Add impartiality between income and remainder beneficiaries (§ 803), prudent administration (§ 804), the Uniform Prudent Investor Act's portfolio-wide diversification standard, the duty not to delegate imprudently, duties to collect and protect, earmark, and keep records, and the duty to inform and report under § 813. Marsman v. Nasca is the standard case for a trustee's duty to inquire into a beneficiary's needs under a support trust; In re Estate of Rothko is the loyalty and damages case. Remedies include surcharge, disgorgement of profit, constructive trust, and removal; exculpatory clauses are limited by UTC § 1008 and are invalid to the extent they excuse bad faith or reckless indifference.

Finally, classify future interests and screen for the Rule Against Perpetuities: no interest is good unless it must vest, if at all, within twenty-one years after a life in being at the creation of the interest. Vulnerable interests are contingent remainders, executory interests, and class gifts (all-or-nothing rule); reversionary interests in the grantor are exempt. Many states have adopted a ninety-year wait-and-see period or abolished the Rule for trusts, so say which regime you are using. For powers of appointment, distinguish general from nongeneral and presently exercisable from testamentary, check whether a residuary clause exercised the power (UPC § 2-608 generally requires a blanket-exercise clause or evidence of intent), and remember that property subject to a presently exercisable general power is available to the powerholder's creditors under modern law.