Trusts & Estates MEE Prep
Trusts and Estates on the MEE is one of the most frequently tested subjects. The exam covers wills, intestate succession, trust creation and administration, fiduciary duties of trustees, will substitutes, and powers of appointment. Questions often combine multiple issues across wills and trusts in a single fact pattern.
Will execution and revocation requirements are heavily tested. You must know the formalities for a valid will (writing, signature, attestation by witnesses), the requirements for a valid holographic will, and the methods of revocation (physical act, subsequent instrument, operation of law). Trust questions focus on creation requirements, the distinction between revocable and irrevocable trusts, trustee duties, and the rights of beneficiaries.
Intestacy is tested when a will is partially or wholly invalid, or when the decedent died without a will. Know the UPC order of distribution: surviving spouse, descendants (per stirpes vs. per capita at each generation), parents, and collateral relatives.
High-Yield Topics
| Topic | Frequency | Tips |
|---|---|---|
| Will Execution Requirements | Very High | Under the UPC and most states, a will must be: (1) in writing, (2) signed by the testator (or by another at the testator's direction and in the testator's conscious presence), and (3) signed by at least two witnesses who witnessed the testator's signing or acknowledgment. Some states require publication (testator declaring it is their will). The UPC has a harmless error rule that can save wills with minor defects. |
| Trust Creation Requirements | Very High | A valid trust requires: (1) a settlor with capacity, (2) intent to create a trust, (3) trust property (res), (4) ascertainable beneficiaries (except for charitable trusts), and (5) a valid trust purpose. A trust for the benefit of specific, ascertainable beneficiaries is a private trust. The trustee must have duties to perform — a passive trust may fail under the Statute of Uses. |
| Revocation of Wills | High | A will may be revoked by: (1) a subsequent will or codicil that expressly or impliedly revokes the prior will, (2) a physical act (burning, tearing, canceling, obliterating) done with intent to revoke, or (3) operation of law (e.g., divorce revokes provisions for the former spouse in most states). Dependent relative revocation may save a revoked will if the revocation was based on a mistaken assumption. |
| Intestate Succession | High | Under the UPC, the surviving spouse receives a share that varies depending on whether there are surviving descendants or parents. If no spouse, property passes to descendants, then parents, then siblings, then more remote relatives. Know the difference between per stirpes, per capita at each generation, and per capita with representation. |
| Trustee Fiduciary Duties | High | The trustee owes duties of loyalty (no self-dealing), prudence (prudent investor rule), impartiality (balance interests of income beneficiaries and remaindermen), to inform and account, and to administer the trust according to its terms. The duty to diversify investments is part of the prudent investor rule. Trustees are personally liable for breach of fiduciary duty. |
| Lapse and Anti-Lapse Statutes | Moderate-High | If a beneficiary predeceases the testator, the gift lapses and falls into the residue (or passes by intestacy if it is a residuary gift). Anti-lapse statutes save the gift by substituting the deceased beneficiary's descendants, but only if the beneficiary was a specified relative of the testator (typically a grandparent or descendant of a grandparent under the UPC). |
| Pour-Over Wills and Revocable Trusts | Moderate-High | A pour-over will devises estate assets to a pre-existing revocable trust. Under UTATA, the trust must be in existence or created at the time of the will's execution, and the trust is identified in the will. Amendments to the revocable trust after the will's execution are valid and control the disposition of the poured-over assets. |
| Elective Share / Spousal Protection | Moderate | The surviving spouse has a right to an elective share (typically one-third to one-half of the estate) regardless of what the will provides. Under the UPC, the elective share is based on the augmented estate (including certain nonprobate transfers). The elective share prevents complete disinheritance of a surviving spouse. |
| Powers of Appointment | Moderate | A general power of appointment allows the holder to appoint property to anyone including themselves. A special (limited) power restricts the permissible appointees. Know the tax and creditor implications: property subject to a general power is reachable by the holder's creditors. Failure to exercise a power of appointment results in the property passing to the takers in default or reverting to the donor's estate. |
Essay Approach
Trusts and Estates MEE essays often present a decedent's estate plan and ask you to analyze what happens to the property. Begin by determining whether the decedent had a valid will. If a will exists, verify that it meets execution requirements. If the will has been revoked or is partially invalid, determine which assets pass under the will and which pass by intestacy.
For trust questions, start with validity: does the trust meet the creation requirements? Then analyze the trustee's duties and whether they have been breached. If the question involves trust administration, address the specific duties at issue (loyalty, prudence, impartiality, duty to inform). If the question involves distribution, analyze the trust terms and any rules of construction.
Always consider the interplay between wills and trusts. Pour-over wills, revocable trusts, and will substitutes (joint tenancy, payable-on-death accounts, beneficiary designations) often appear together. Address each asset separately and trace it through the correct dispositive mechanism.
Commonly Tested Issues
Key Rules to Memorize
Will Execution Formalities (UPC)
A will must be in writing, signed by the testator (or by another in the testator's conscious presence and at the testator's direction), and signed by at least two individuals who witnessed the testator signing or the testator's acknowledgment of the signature or the will within a reasonable time.
Holographic Will Requirements
A holographic will is valid in jurisdictions that recognize it if the material portions (and in some states, all material provisions) are in the testator's handwriting, and the will is signed by the testator. No witnesses are required. Under the UPC, only the material portions need to be handwritten.
Trust Creation Elements
A valid private trust requires: a settlor with capacity, present intent to create a trust (not a precatory wish), identifiable trust property (res), ascertainable beneficiaries, a lawful purpose, and a trustee with duties to perform.
Prudent Investor Rule
A trustee must invest and manage trust assets as a prudent investor would, considering the purposes, terms, distribution requirements, and other circumstances of the trust. The trustee must diversify investments unless special circumstances make it imprudent to do so. Performance is measured by the portfolio as a whole, not individual investments.
Duty of Loyalty (Trustee)
A trustee must administer the trust solely in the interest of the beneficiaries. Self-dealing transactions are presumptively voidable regardless of good faith or fairness, unless authorized by the trust instrument, approved by the court, or consented to by the beneficiaries.
Anti-Lapse Statute (UPC)
If a devisee who is a grandparent or descendant of a grandparent of the testator predeceases the testator, the gift does not lapse but instead passes to the devisee's surviving descendants by representation, unless the will expresses a contrary intent.
Dependent Relative Revocation
If a testator revokes a will based on a mistaken belief (such as the belief that a new will is valid), the court may disregard the revocation and probate the earlier will if doing so better approximates the testator's intent than intestacy.
Intestate Succession Order (UPC)
Property passes to: (1) the surviving spouse (share depends on whether there are surviving descendants or parents), (2) descendants by representation, (3) parents equally, (4) descendants of parents (siblings), (5) grandparents and their descendants, and (6) more remote relatives.
Elective Share (UPC)
The surviving spouse may elect to take a percentage of the augmented estate (which includes the probate estate, certain nonprobate transfers by the decedent, and the surviving spouse's own assets) rather than the amount provided under the will. The percentage varies based on the length of the marriage.
Pour-Over Will Doctrine (UTATA)
A will may devise property to a trust established during the testator's lifetime if the trust is identified in the will and its terms are set forth in a written instrument. The trust may be amended after the will is executed, and the amendments control the disposition of the poured-over assets.
Revocable Trust Characteristics
A revocable trust can be amended or revoked by the settlor during their lifetime. The settlor typically retains control of the trust assets and may serve as trustee. Upon the settlor's death, the trust becomes irrevocable and its terms govern the distribution of trust assets outside of probate.
Spendthrift Trust Protection
A spendthrift provision prevents beneficiaries from voluntarily or involuntarily transferring their interest in the trust. Creditors of the beneficiary generally cannot reach the trust assets until distributed. Exceptions exist for child support, alimony, and in some states, government claims and creditors who provided necessaries.
General vs. Special Power of Appointment
A general power of appointment allows the holder to appoint the property to anyone, including themselves, their estate, or their creditors. A special power restricts the class of permissible appointees. Property subject to a general power is reachable by the holder's creditors in most jurisdictions.
Common Mistakes
- Confusing attestation requirements — two witnesses must witness the testator's signing or acknowledgment, not each other's signing
- Forgetting that anti-lapse statutes only apply to beneficiaries within a specified degree of relationship to the testator, not to all beneficiaries
- Failing to apply the correct method of representation (per stirpes vs. per capita at each generation) when distributing intestate shares
- Assuming a revocable trust avoids all creditor claims — in most states, the assets of a revocable trust are reachable by the settlor's creditors during the settlor's lifetime and after death
- Neglecting to analyze whether trust property (res) exists — a trust must have identifiable property transferred to it at creation
- Confusing precatory language (hopes, wishes, desires) with mandatory trust language — precatory language does not create a trust
- Missing the interplay between the elective share and nonprobate transfers — the UPC augmented estate includes certain will substitutes
- Applying dependent relative revocation without considering whether the earlier will better approximates the testator's intent than intestacy
Study Tips
- Create a flowchart for estate distribution: check will validity first, then identify what passes under the will, then apply intestacy to any remaining assets
- Memorize the trust creation elements as a checklist — missing any one element means the trust fails
- Practice intestacy distribution problems using family tree diagrams — the MEE loves problems with predeceased children and multiple lines of descendants
- Know the UPC approach to will execution, but also know the traditional (strict compliance) approach — the MEE may specify or you may need to discuss both
- Study the trustee's fiduciary duties as a group — loyalty, prudence, impartiality, duty to inform — because MEE questions often test multiple duties in one fact pattern
- Review how pour-over wills interact with revocable trusts — this is a commonly tested combination that requires understanding both doctrines