Wills, Trusts & Estates — Bar One-Sheet (Elements & Mnemonics)

WILLS, TRUSTS & ESTATES — BAR ONE-SHEET (ELEMENTS & MNEMONICS)

Lean issue-spotting checklist — elements and mnemonics only. Pair with the full Wills, Trusts & Estates Master Outline for depth, then practice timed essays with AI feedback at BarExamNextGen.

KEY PRINCIPLE #1 — INTESTACY

No valid will → estate passes by statute. Order:

• Surviving spouse — share depends on whether decedent left descendants/parents (UPC: spouse takes all if all descendants are shared; reduced if decedent has other descendants).
• Descendants take by representation — per capita at each generation (UPC) vs. per stirpes vs. per capita with representation. Count from first living generation.
• Then parents → siblings → grandparents (collaterals by degree/parentelic).

Special rules — "ASH": Advancement (lifetime gift counted only if writing shows intent), Simultaneous death/120-hour rule (must survive 120 hrs — USDA), Half-bloods (UPC: treated as whole). Posthumous heirs (conceived before, born after) inherit. Slayer rule: killer treated as predeceased.

KEY PRINCIPLE #2 — WILL EXECUTION & HOLOGRAPHIC WILLS

Attested will — "WSW": Writing + Signed + Witnessed":

• Testator 18+ and of sound mind (knows nature of act, property, natural objects, plan).
• Signed by T (or by another in T's presence at direction).
• 2 witnesses sign within reasonable time; many states require they witness signing/acknowledgment.

Interested witness — common law voids gift; modern/UPC: will valid, but purging statute may strip excess gift unless supernumerary witnesses.

Holographic will — material portions + signature in T's handwriting; no witnesses needed (recognized in ~half of states).

Harmless error / substantial compliance (UPC §2-503) — court may probate defective will if clear and convincing evidence of intent.

KEY PRINCIPLE #3 — REVOCATION

Revoke by — "PSO": Physical act, Subsequent instrument, Operation of law":

• Physical act — burn, tear, cancel, destroy with intent. Partial revocation by act allowed in some states.
• Subsequent writing — later will/codicil, express or by inconsistency.
• Operation of law — divorce revokes provisions for ex-spouse; pretermitted spouse/child shares.

DRR (Dependent Relative Revocation) — revocation based on mistaken belief another disposition effective; ignore the revocation to honor intent. Revival — revoking the revoking will does NOT automatically revive will #1 (UPC: only if intent shown). Lost will presumption: if last in T's possession and not found → presumed revoked.

KEY PRINCIPLE #4 — LAPSE & ANTI-LAPSE; ADEMPTION; ABATEMENT

• Lapse — beneficiary predeceases T → gift fails, falls to residue (or intestacy if residuary lapses; "no residue of a residue" at common law, UPC passes to other residuary takers).
• Anti-lapse statute — saves gift if predeceasing beneficiary was within protected relationship (usually descendant of T's grandparent) AND left issue who survive; gift passes to issue.
• Ademption by extinction — specific gift not in estate at death → beneficiary takes nothing (identity theory).
• Abatement order — "IRGS reversed": intestate property → residuary → general → specific bequests reduced last to pay debts.

KEY PRINCIPLE #5 — TRUST CREATION & TYPES

Trust elements — "IDEA-B": Intent + Definite beneficiary + Ascertainable property (res) + (lawful) purpose + Trustee" (Settlor + delivery for inter vivos):

• Settlor with capacity + present intent to create trust;
• Identifiable trust res (property);
• Ascertainable beneficiaries (exception: charitable, honorary);
• Valid purpose; trustee (court won't let trust fail for lack of trustee).

Types: Express (private/charitable). Charitable — charitable purpose, indefinite beneficiaries, cy pres if purpose impossible. Resulting — purpose fails/incomplete disposition → back to settlor. Constructive — equitable remedy for wrongful conduct/unjust enrichment (not a real trust). Spendthrift — bars voluntary/involuntary transfer of beneficiary's interest. Discretionary — trustee discretion; creditor stands in beneficiary's shoes only when distribution made.

KEY PRINCIPLE #6 — TRUSTEE DUTIES

Trustee duties — "LIPS-CARE": Loyalty, Impartiality, Prudence, Segregate (no commingling), Care, Account, Report, Enforce/Defend":

• Duty of Loyalty — no self-dealing; no further inquiry rule (self-dealing = automatic breach regardless of fairness).
• Prudent Investor Rule — reasonable care, skill, caution; diversify; judge portfolio as a whole.
• Impartiality between income and remainder beneficiaries.
• Duty to account / inform; segregate & earmark; not delegate core functions (modern: may delegate prudently).

Remedies: surcharge, removal, constructive trust, tracing.

KEY PRINCIPLE #7 — POWERS OF APPOINTMENT

• General power — exercisable in favor of holder, estate, creditors → property in donee's estate.
• Special/limited power — only to a defined class.
• Presently exercisable vs. testamentary.
• Exercise: a residuary clause does NOT exercise a power unless specific reference (or blanket-exercise clause / blending). Capture doctrine and gift-in-default rules apply on ineffective exercise.

KEY PRINCIPLE #8 — SPOUSAL PROTECTION: ELECTIVE SHARE

• Elective (forced) share — surviving spouse may elect statutory share (commonly 1/3) against the will, even if disinherited.
• UPC: augmented estate + sliding scale by length of marriage; reaches certain non-probate transfers (will substitutes) to prevent fraud on the share.
• Omitted/pretermitted spouse — married after will executed → intestate share unless intentional/provided for outside will.
• Pretermitted child — born/adopted after will → intestate-type share (unless intentional omission/provided for).
• Community property states: no elective share (spouse already owns 1/2). Homestead, exempt property, family allowance also protect spouse/children.

★ ONE-LINE ATTACK ORDER

Is there a valid will (capacity → WSW execution or holographic → harmless error)? → check revocation (physical/subsequent/law + DRR/revival) → construe gifts (lapse/anti-lapse, ademption, abatement) → for trusts, test creation (intent/res/beneficiary), classify type, then run trustee duties (loyalty/prudence) and remedies → exercise any power of appointment by specific reference → apply spousal/child protection (elective share, pretermitted) → if no will or gift fails, distribute by intestacy with survival and slayer rules.