Wills, Trusts and Estates (MEE) Long Outline

WILLS, TRUSTS & ESTATES MASTER TREATISE OUTLINE (MEE)

Wills, Trusts & Estates is one of the most heavily tested subjects on the Multistate Essay Examination (MEE), and it rewards students who master a relatively fixed body of black-letter rules. The modern MEE tests the Uniform Probate Code (UPC) and the Uniform Trust Code (UTC) as the default rules, but it constantly contrasts those modern statutes against the common law. The single most valuable habit you can build is to flag the common-law/UPC split every single time it appears, state both rules, and then resolve the question under the modern majority approach unless the facts signal otherwise. This treatise walks through intestacy, will execution and revocation, will construction, limits on testamentary freedom, will contests, the entire law of trusts (creation, types, administration, modification, and termination), powers of appointment, future interests, and fiduciary estate administration. Read it actively: for each rule, ask yourself how you would phrase the rule statement in an essay, and how the examiners would bury an issue in a fact pattern.

I. INTESTACY — DISTRIBUTION WITHOUT A VALID WILL

Rule: Intestate succession governs the distribution of a decedent's probate property when the decedent dies (1) without a valid will, (2) with a will that fails to dispose of all property (partial intestacy), or (3) when a will is denied probate. The law of the decedent's domicile at death controls the distribution of personal property; the law of the situs controls real property.

A. The Surviving Spouse's Share

Rule: At common law, the spouse took a fixed fractional share (often one-third or one-half). Under the UPC, the surviving spouse's intestate share depends on who else survives. The spouse takes the entire estate if (1) no descendant or parent of the decedent survives, or (2) all of the decedent's surviving descendants are also descendants of the surviving spouse and the spouse has no other surviving descendants. If the decedent's parent survives but no descendant, the spouse takes the first $300,000 plus three-fourths of the balance. Where there are descendants of the decedent who are not descendants of the spouse (a blended family), the spouse takes the first $225,000 plus one-half of the balance; where all descendants are shared but the spouse has other descendants, the spouse takes the first $225,000 plus one-half.

EXAMPLE: H dies intestate survived by W and two children, both of whom are also W's children. Under the UPC, W takes the entire estate because all of H's descendants are also W's descendants and W has no other children. The children take nothing by intestacy (the law assumes W will provide for the shared children).

EXAMPLE: H dies intestate survived by W and one child from a prior marriage. Because H has a descendant who is not W's descendant, W takes only the first $225,000 plus one-half of the remaining estate; the child takes the rest.

B. Shares of Descendants — Per Stirpes, Per Capita, and Representation

Rule: Whatever portion of the estate does not pass to the surviving spouse passes to the decedent's descendants. The method of division among descendants depends on the jurisdiction. There are three competing systems.

Strict (English) per stirpes: Divide the estate into shares at the first generation (the children level) regardless of whether anyone at that level is living, allocating one share to each living child and one share to each deceased child who left descendants. Deceased children's shares pass down by representation.

Per capita with representation (modern per stirpes / American per stirpes): Make the first division at the first generation where there is a living taker. Each living person at that level takes a share; the shares of deceased persons at that level drop down to their descendants by representation.

Per capita at each generation (the UPC default): Make the first division at the first generation with a living taker, but then pool the shares of all deceased persons at that level and divide that pool equally among the takers at the next generation. The guiding principle is "equally near, equally dear" — persons in the same generation take equal shares.

EXAMPLE: D has three children A, B, and C. A is alive. B predeceased D leaving two children (B1, B2). C predeceased D leaving one child (C1). Strict per stirpes: divide into thirds at the child level — A takes 1/3; B1 and B2 split B's 1/3 (1/6 each); C1 takes C's 1/3. Per capita with representation: first division still occurs at the child level because A is living — same result as strict per stirpes here. Per capita at each generation (UPC): A takes 1/3; the remaining 2/3 is pooled and split equally among B1, B2, and C1, so each grandchild takes 2/9. Notice C1 fares worse and B1/B2 fare better under the UPC because the grandchildren are treated as equals.

C. Ancestors, Collaterals, and the Half-Blood

Rule: If the decedent leaves no spouse and no descendants, the estate passes to the decedent's parents (or surviving parent). If no parent survives, it passes to the descendants of the parents (the decedent's siblings and their descendants) by representation. Failing that, the estate is typically split between the maternal and paternal grandparents' lines. The UPC generally cuts off intestate inheritance beyond grandparents and their descendants — there is no inheritance by "laughing heirs" (remote relatives who feel no grief), and the property escheats to the state only if no taker exists within the defined classes.

Rule (half-bloods): At common law in some states, half-blood relatives took only half as much as whole-blood relatives, and a few states excluded them entirely. Under the UPC, a relative of the half blood inherits the same share as a relative of the whole blood. A half-blood sibling shares one parent with the decedent.

D. Adopted, Stepchildren, Nonmarital, and Posthumous Children

Rule (adoption): An adopted child inherits from and through the adoptive parents as a natural child, and the adoptive parents inherit from the adopted child. Adoption generally severs the inheritance relationship with the biological parents. The major exception is the stepparent adoption: under the UPC, when a stepparent adopts, the child still inherits from and through the genetic parent who is the spouse of the adopting stepparent and, in some formulations, from the other genetic parent, but that genetic parent's family cannot inherit from the child.

Rule (stepchildren and foster children): Generally do not inherit absent adoption. However, the doctrine of equitable adoption (adoption by estoppel) may allow a foster or stepchild to inherit from a person who agreed to adopt but never completed the formalities. Equitable adoption runs only in one direction — the child inherits from the would-be adoptive parent, but not vice versa, and not through the parent.

Rule (nonmarital children): A nonmarital child always inherits from the mother. The child inherits from the father if paternity is established — by the father's marriage to the mother, by acknowledgment, by adjudication during the father's life, or by clear and convincing evidence after death.

Rule (posthumous children): A child in gestation at the decedent's death who is later born alive is treated as living at the decedent's death and inherits. The UPC requires the child to live at least 120 hours after birth. Posthumously conceived children (conceived after death via assisted reproduction) inherit under the UPC only if the decedent consented in a signed writing and the child is in utero within 36 months or born within 45 months of death.

E. Advancements, Disclaimer, the Slayer Rule, and Simultaneous Death

Rule (advancements): At common law, any lifetime gift to a child was presumed an advancement — a prepayment of the child's intestate share — and was added back into the "hotchpot" for computing shares. The UPC reverses the presumption: a lifetime gift is an advancement only if (1) the decedent declared so in a contemporaneous writing, or (2) the heir acknowledged it in writing. If the advancee predeceases the decedent, the advancement is not counted against the advancee's descendants unless the writing so provides.

EXAMPLE: D gives daughter A $20,000 during life and writes a note stating it is an advance on her inheritance. D dies intestate with a $100,000 estate and two children, A and B. Hotchpot: add the $20,000 back, making $120,000; each child's share is $60,000; A has already received $20,000, so A takes $40,000 from the estate and B takes $60,000.

Rule (disclaimer): An heir or beneficiary may disclaim (renounce) an inheritance. A valid disclaimer must be in a signed writing and (for tax purposes) made within nine months. The disclaimant is treated as having predeceased the decedent, so the property passes as if the disclaimant were dead. Disclaimer is a common tool to avoid creditors or for tax planning, but a disclaimer cannot be used to defeat a federal tax lien already attached, and a disclaimer made to defeat Medicaid eligibility may be disregarded.

Rule (slayer rule): A person who feloniously and intentionally kills the decedent forfeits any interest in the decedent's estate — by will, intestacy, elective share, life insurance, joint tenancy survivorship, or beneficiary designation. The slayer is treated as having predeceased the victim. A criminal conviction conclusively establishes the killing; absent conviction, the probate court may find the killing by a preponderance of the evidence. The rule does not apply to negligent or merely reckless killings.

Rule (simultaneous death): Under the original Uniform Simultaneous Death Act (USDA), when two persons die and there is insufficient evidence of who survived, each is deemed to have predeceased the other (so neither inherits from the other). The UPC and the revised USDA impose a 120-hour (5-day) survival requirement: a person must survive the decedent by 120 hours, established by clear and convincing evidence, to take. A will or trust may override this default with its own survivorship clause.

EXAMPLE: H and W die in a car crash; medical evidence cannot establish who died first. Each owned property. Under the 120-hour rule, neither is deemed to have survived the other, so each estate passes as if the other had predeceased — H's property goes to H's heirs and W's to W's heirs, avoiding double administration and a windfall to one family's heirs.

ESSAY WRITING TIP: Intestacy questions are math problems dressed as law. Always (1) identify the controlling distribution system — state that the UPC uses per capita at each generation while many states use per capita with representation; (2) draw a quick family tree in your scratch work; (3) compute the spouse's share first, then divide the remainder among descendants; and (4) show your arithmetic. Graders award points for the correct method even if you fumble the final fraction, so always articulate the rule before crunching numbers.

MEE TIP: The examiners love to combine the slayer rule, simultaneous death, and disclaimer in a single fact pattern, because each one operates by the same fiction — treating someone as having predeceased the decedent. Watch for a beneficiary who kills, dies within 120 hours, or disclaims, and then trace the property to the next taker. Also remember that adopted and half-blood issues are frequent traps: stepparent adoption preserves the link to the natural-parent spouse, and the UPC gives half-bloods a full share.

II. EXECUTION OF WILLS — FORMALITIES

Rule: A valid attested will requires (1) a writing, (2) signed by the testator (or by another at the testator's direction and in the testator's presence), and (3) signed by at least two competent witnesses, each of whom witnessed either the testator's signing or the testator's acknowledgment of the signature or the will. The testator must have testamentary capacity and testamentary intent (present intent that the document operate as the testator's will).

A. The Core Formalities

Writing and signature: Any writing suffices; the signature may be any mark intended as a signature, including initials or an "X." A signature by mark or by proxy (another person signing at the testator's direction in the testator's presence) is valid. Most states require the testator to sign at the end, though the UPC does not strictly require this.

Witnesses and presence: The witnesses must sign within a reasonable time. The classic split concerns presence: the line-of-sight test (common law/strict) requires that the testator could have seen the witnesses sign had the testator looked, while the conscious-presence test (UPC/modern) requires only that the witness sign within the testator's general awareness through sight, hearing, or general consciousness of the event. The UPC permits the witnesses to sign after observing the testator's acknowledgment rather than the actual signing, and even permits a notary to substitute for the two witnesses.

Attestation clause and self-proving affidavit: An attestation clause (reciting that the formalities were observed) creates a rebuttable presumption of due execution. A self-proving affidavit, sworn before a notary, allows the will to be admitted to probate without live witness testimony.

B. Interested Witnesses and Purging Statutes

Rule: At common law, a witness who was also a beneficiary was "interested," and the will was void or the witness was incompetent. Modern law is far more lenient. Most states have a purging statute: the will remains valid, but the interested witness forfeits the portion of the gift exceeding what the witness would have taken in intestacy (the "excess"). The UPC abolishes the interested-witness rule entirely — an interested witness takes the full gift and the will is valid, though interest may be relevant to undue-influence inquiries.

EXAMPLE: T's will leaves $50,000 to W, who also serves as one of only two witnesses. W would have inherited $10,000 in intestacy. Under a typical purging statute, the will is valid but W's gift is reduced to $10,000 (the intestate share); the $40,000 excess is purged. Under the UPC, W takes the full $50,000.

C. Holographic Wills

Rule: A holographic will is a will written by hand and not witnessed. About half the states recognize them. The traditional requirement is that the entire will be in the testator's handwriting; the UPC requires only that the material portions (the dispositive provisions) and the signature be in the testator's hand, allowing preprinted or typed surplusage. The testator's signature need not be at the end. Testamentary intent must still appear.

D. Conditional, Joint, and Mutual Wills; Contracts to Make Wills

Rule: A conditional will takes effect only upon a stated condition; courts often construe language describing the inducement for making the will as not truly conditional. A joint will is a single document serving as the will of two persons. Mutual (reciprocal) wills are separate wills with reciprocal provisions. The execution of a joint or mutual will does not by itself create a contract not to revoke. Under the UPC, a contract to make or not revoke a will must be established by (1) provisions in the will stating the contract's material terms, (2) an express reference in the will plus extrinsic evidence, or (3) a separate signed writing. Breach is remedied through a constructive trust imposed on the estate, not by enjoining probate of the later will.

E. Harmless Error and Substantial Compliance

Rule: Traditionally, strict compliance with formalities was mandatory; a defectively executed will was void. The UPC's harmless-error (dispensing power) rule (§ 2-503) allows a court to probate a document that fails to meet the formalities if the proponent proves by clear and convincing evidence that the decedent intended the document to be the will. The related substantial-compliance doctrine asks whether the defective execution nonetheless served the formalities' purposes. These doctrines most often save a will missing a second witness, but courts are cautious about excusing a missing signature.

ESSAY WRITING TIP: When analyzing execution, march through the formalities as a checklist — writing, signature, two witnesses, presence, intent — and expressly state which test for "presence" the jurisdiction applies. If a formality is missing, do not stop: pivot immediately to the rescue doctrines (harmless error, substantial compliance) and to whether the document might qualify as a holograph. Graders reward the candidate who, after spotting a defect, argues both that the will fails under strict compliance and that it may still be saved under the UPC.

MEE TIP: A recurring MEE pattern presents a will signed by the testator and only one witness, or witnesses who signed in another room. State the strict rule (will is void), then invoke UPC harmless error to argue the will may still be probated on clear and convincing evidence of intent. Another favorite is the interested witness — always identify the purging statute and contrast it with the UPC's abolition of the rule.

III. COMPONENTS OF A WILL — INTEGRATION, INCORPORATION, AND RELATED DOCTRINES

Rule: Several doctrines determine what papers and facts are part of a will or may affect its operation without themselves being executed with testamentary formalities.

A. Integration

Rule: Integration determines which physical pages constitute the will. All papers present at execution that the testator intended to be part of the will are integrated. A logical connection of language flowing from page to page, internal page numbering, or physical attachment (staple) at execution supports integration.

B. Incorporation by Reference

Rule: A writing not executed with testamentary formalities may be incorporated by reference if (1) the writing was in existence when the will was executed, (2) the will manifests an intent to incorporate it, and (3) the will describes the writing sufficiently to identify it. The UPC adds a special rule (§ 2-513) permitting a will to refer to a separate list disposing of tangible personal property (not money); that list may be prepared or altered after the will's execution and need only be signed or in the testator's handwriting.

EXAMPLE: T's will states, "I leave my tangible personal property as set forth in a memorandum I will prepare." T later handwrites and signs a list giving her watch to a friend. Even though the list postdates the will, it is valid under UPC § 2-513 because it disposes only of tangible personal property.

C. Acts of Independent Significance

Rule: A will may dispose of property by reference to acts or events that have significance apart from their effect on the will (a "lifetime motive"). The identity of beneficiaries or property may thus be determined by reference to facts existing or occurring during the testator's life or after death. "I leave the car I own at my death to X" is valid even though T may change cars; "the contents of my safe-deposit box to Y" is valid because the box's contents have independent significance.

D. Pour-Over Wills and the UTATA

Rule: A pour-over will devises probate property to a trust established during the testator's life. Such a devise is validated under the Uniform Testamentary Additions to Trusts Act (UTATA), which permits the pour-over even if the trust is amendable, revocable, and unfunded during life, and even if the trust was created or amended after the will's execution. This is broader than incorporation by reference (which requires existence at execution) and acts of independent significance, and it is the standard mechanism in modern estate planning.

ESSAY WRITING TIP: Distinguish carefully among integration (which physical pages), incorporation by reference (an outside writing in existence at execution), acts of independent significance (a lifetime act determines beneficiary or property), and UTATA pour-over (devise to a trust). If a fact pattern references an outside document, run through each doctrine in order — the examiners often present a document that fails incorporation by reference (because created after the will) but succeeds under UTATA or the tangible-property-list rule.

MEE TIP: A document created or amended after the will is the classic trigger. Incorporation by reference fails (existence requirement), but the UPC tangible-personal-property list (§ 2-513) and UTATA both expressly permit later documents. Name the doctrine that saves the gift and explain why the existence requirement is excused.

IV. REVOCATION OF WILLS

Rule: A will may be revoked (1) by a subsequent writing executed with testamentary formalities, (2) by physical act done with intent to revoke, or (3) by operation of law.

A. Revocation by Physical Act and by Subsequent Instrument

Rule (physical act): Burning, tearing, canceling, obliterating, or destroying the will (or a part) with the concurrent intent to revoke revokes it. Both the act and the intent must coincide. The act may be performed by another person at the testator's direction and in the testator's presence. At common law, words of cancellation had to touch the words of the will; the UPC requires only that the act affect the document, even a marginal cancellation line.

Rule (subsequent instrument): A later will revokes an earlier will to the extent of inconsistency (implied revocation) or by an express revocation clause. A later will that does not entirely replace the earlier one is treated as a codicil, and the two are read together.

B. Revocation by Operation of Law — Divorce, Marriage, Birth

Rule (divorce): Divorce or annulment revokes all provisions in favor of the former spouse (and, under the UPC, the former spouse's relatives), and revokes any nomination of the former spouse as fiduciary. The will is read as if the former spouse predeceased. The UPC extends this revocation-on-divorce rule to nonprobate transfers (revocable trusts, beneficiary designations) — though as to ERISA-governed plans, federal law (per Egelhoff and Kennedy) may preempt and require payment to the named ex-spouse. Mere separation does not revoke.

Rule (marriage and birth): These are handled through the pretermitted-spouse and pretermitted-child doctrines (Section VI), which give an omitted spouse or child a share rather than revoking the will.

C. Dependent Relative Revocation (DRR)

Rule: Dependent relative revocation is an equitable doctrine that disregards a revocation when the testator revoked under a mistaken belief — usually that a new disposition was valid — and the testator would not have revoked the old will had the testator known the truth. The court ignores the revocation and probates the revoked will because doing so comes closer to the testator's intent than intestacy. DRR applies only where the failed alternative is nearly identical or more favorable to the same beneficiaries.

EXAMPLE: T revokes Will 1 (leaving $5,000 to her nephew) by executing Will 2 (leaving the nephew $7,000), but Will 2 is invalidly executed. Without DRR, T dies intestate and the nephew may take nothing. Under DRR, the court disregards the revocation of Will 1 because T plainly intended the nephew to take, and probates Will 1 so the nephew receives $5,000.

D. Revival and the Lost-Will Presumption

Rule (revival): If Will 2 revoked Will 1, and Will 2 is later revoked, is Will 1 revived? At common law, Will 1 was automatically revived (a will "spoke" at death). Under the UPC, revival depends on intent: if Will 2 is revoked by physical act, Will 1 is revived only if the testator so intended (shown by circumstances or contemporaneous declarations); if Will 2 is revoked by a later (third) instrument, Will 1 is revived only if the terms of that instrument show such intent.

Rule (lost wills): If a will last seen in the testator's possession cannot be found at death, a presumption arises that the testator destroyed it with intent to revoke. The presumption may be rebutted, and a lost will may be probated on proof of its due execution and contents (often by a copy and witness testimony). If the will was last in someone else's possession, no presumption of revocation arises.

ESSAY WRITING TIP: Revocation problems require you to nail down both the act and the intent, and to track the chronology of multiple instruments. When a revocation is premised on a mistake, raise DRR and explain the "second-best" rationale — the court enforces the revoked will because it is closer to intent than intestacy. When wills disappear, recite the lost-will presumption and identify who last held the document.

MEE TIP: DRR and revival are perennial MEE issues and are easily confused. DRR undoes a revocation based on a mistaken assumption; revival restores an earlier will after a later revoking will is itself revoked. State the UPC's intent-based revival rule and contrast it with the common-law automatic-revival rule. Always mention the lost-will presumption when a will cannot be located.

V. WILL CONTENTS AND CHANGES IN PROPERTY

Rule: Several construction doctrines govern what happens when a beneficiary predeceases, when gifted property changes, and when the estate is insufficient to satisfy all gifts.

A. Classification of Gifts

A specific devise is a gift of a particular identifiable asset ("my diamond ring"). A general devise is payable from the general assets ("$10,000"). A demonstrative devise is a general gift from a specified source ("$10,000 from my Acme stock"). A residuary devise disposes of the balance. These classifications drive abatement and ademption.

B. Lapse and Anti-Lapse Statutes

Rule: A gift lapses (fails) if the beneficiary predeceases the testator. At common law, a lapsed specific or general gift fell into the residue, and a lapsed residuary gift passed by intestacy (the "no-residue-of-a-residue" rule). Under modern law, if one of several residuary takers predeceases, that share passes to the surviving residuary beneficiaries.

Rule (anti-lapse): An anti-lapse statute saves the gift by substituting the predeceasing beneficiary's descendants, but only if the predeceased beneficiary was within a specified degree of relationship to the testator. The UPC covers a grandparent, a descendant of a grandparent, or a stepchild of the testator. Anti-lapse applies unless the will provides otherwise; under the UPC, mere words of survivorship ("to A if A survives me") are presumptively insufficient to override anti-lapse, though many states disagree.

EXAMPLE: T leaves $20,000 "to my sister S." S predeceases T, leaving a daughter. Because S is a descendant of T's grandparent (within the protected class), the anti-lapse statute substitutes S's daughter, who takes the $20,000. Had T left the gift "to my friend F," who predeceased, no anti-lapse statute would apply (F is not a relative), and the gift would lapse into the residue.

C. Class Gifts

Rule: In a gift "to my children" or "to my nieces and nephews," the class members are determined at distribution, and if one class member predeceases, the survivors generally divide the whole (the "class-closing" rules apply). Anti-lapse statutes, where applicable, take priority and substitute a predeceasing class member's descendants. The rule of convenience closes the class when any member is entitled to demand possession.

D. Ademption by Extinction and by Satisfaction

Rule (ademption by extinction): If specifically devised property is not in the estate at death (sold, destroyed, given away), the gift is adeemed — it fails, and the beneficiary takes nothing. The traditional identity theory applies this mechanically. The UPC adopts an intent theory, giving the beneficiary the property's replacement, any unpaid balance, condemnation award, or insurance proceeds, and even a general pecuniary devise equal to the value if the testator did not intend ademption.

Rule (ademption by satisfaction): A lifetime gift to a beneficiary may satisfy a testamentary gift if the testator so intends. The UPC requires a writing (by testator at the time of the gift, or acknowledged by the beneficiary) — analogous to advancements in intestacy.

E. Abatement, Exoneration, and Simultaneous Death

Rule (abatement): When estate assets are insufficient to pay debts and all gifts, gifts abate (are reduced) in this order: (1) intestate (property not disposed of by will), (2) residuary devises, (3) general devises, and (4) specific and demonstrative devises last. Within a class, gifts abate ratably.

Rule (exoneration of liens): At common law, a specific devisee of encumbered real property was entitled to have the mortgage paid off (exonerated) from the residue. The UPC abolishes the doctrine of exoneration — the devisee takes the property subject to the mortgage, and a general directive to "pay my debts" does not require exoneration.

Rule (simultaneous death applied to wills): A devisee who fails to survive the testator by 120 hours (UPC) is treated as having predeceased, triggering lapse/anti-lapse analysis.

ESSAY WRITING TIP: Construction problems demand precision in classifying the gift (specific, general, demonstrative, residuary) because that classification controls both ademption and abatement. After classifying, run the chronology: did the beneficiary survive (lapse/anti-lapse)? Is the asset still in the estate (ademption)? Are assets sufficient (abatement)? Always flag the UPC's intent theory of ademption against the common-law identity theory.

MEE TIP: Anti-lapse is among the most tested construction rules. State the protected class (grandparent, descendant of a grandparent, or stepchild under the UPC), confirm the predeceased beneficiary left descendants, and note that words of survivorship may not be enough to opt out under the UPC. Pair ademption with anti-lapse and abatement to handle a multi-part construction question.

VI. LIMITS ON TESTAMENTARY POWER — PROTECTING THE FAMILY

Rule: The law restricts a testator's freedom to disinherit a spouse and (to a lesser degree) children, and provides certain family protections that prime even creditors.

A. The Elective (Forced) Share and the Augmented Estate

Rule: In separate-property (common-law) states, a surviving spouse may elect against the will to take a statutory share (traditionally one-third or one-half) instead of what the will provides — preventing disinheritance. To stop a spouse from defeating the elective share through lifetime transfers and will substitutes, the UPC computes the share against the "augmented estate," which adds back the decedent's nonprobate transfers (revocable trusts, joint accounts, POD/TOD assets, life insurance) and certain lifetime gifts, and also includes the surviving spouse's own assets. The UPC uses a sliding scale tied to the length of the marriage, approaching 50% of the augmented estate after 15 years, reflecting a partnership theory. Community-property states have no elective share because the spouse already owns one-half of the community property.

EXAMPLE: H's will leaves everything to his sister and nothing to W, but H also funded a large revocable trust during life. Under the augmented-estate concept, the trust assets are pulled back into the calculation, so W's elective share is computed against the combined probate and nonprobate estate — defeating H's attempt to disinherit W through a will substitute.

B. Pretermitted (Omitted) Spouse and Children

Rule (omitted spouse): A spouse who married the testator after the will was executed and is not provided for takes an intestate share (under the UPC, limited to property not devised to the testator's children from a prior relationship), unless (1) the omission appears intentional, (2) the testator provided for the spouse outside the will with intent to substitute, or (3) the will was made in contemplation of the marriage.

Rule (omitted child): A child born or adopted after the will was executed and not provided for takes a share. Under the UPC, if the testator had no children when the will was made, the afterborn child takes an intestate share; if the testator had children and provided for them, the afterborn shares ratably in those gifts. The child takes nothing if the omission was intentional or the testator provided for the child outside the will. Note that a child living when the will was executed and simply omitted is generally not protected — the law presumes intentional disinheritance.

C. Homestead, Exempt Property, Family Allowance, and the Negative Will

Rule: Most states grant the surviving spouse and minor children a homestead allowance, exempt personal property, and a family allowance for support during administration. These protections are typically in addition to other devises and the elective share, and they have priority over creditors (other than secured claims).

Rule (negative will): At common law, a testator could not disinherit an heir merely by saying "I leave nothing to my son"; if property passed by intestacy, the disinherited heir still took. The UPC recognizes the negative will: a will may expressly exclude or limit an heir's intestate share, and the excluded share passes as if that heir disclaimed.

ESSAY WRITING TIP: For spousal protection, distinguish the elective share (a deliberate disinheritance the spouse overrides) from the pretermitted-spouse doctrine (an accidental omission because the marriage postdated the will). For children, hammer the distinction between an afterborn/after-adopted child (protected) and a living-but-omitted child (presumed intentionally disinherited). Always mention that homestead, exempt property, and family allowance stack on top and prime creditors.

MEE TIP: The augmented estate is the examiners' favorite trap: a testator tries to disinherit a spouse using a revocable trust or POD account. Explain that the UPC pulls nonprobate transfers back into the augmented estate so the elective share cannot be evaded. Also remember community-property states have no elective share, and that the UPC (unlike the common law) allows a true negative will.

VII. WILL CONTESTS — GROUNDS AND STANDING

Rule: A will may be challenged on grounds attacking the testator's capacity or the voluntariness and genuineness of the will. Only an interested person — one who would benefit if the will (or the contested provision) were set aside, such as an heir or a beneficiary under a prior will — has standing to contest.

A. Testamentary Capacity and Insane Delusion

Rule (capacity): At execution the testator must be at least 18 and have mental capacity — the ability to understand (1) the nature and extent of the property, (2) the natural objects of bounty (family members), (3) the nature of the testamentary act, and (4) how these relate in an orderly plan. This is a lower threshold than the capacity to contract. Capacity is measured at the moment of execution; a "lucid interval" suffices.

Rule (insane delusion): A testator with general capacity may still lack capacity as to a particular gift if the testator labored under an insane delusion — a false belief to which the testator adheres against all reason and evidence — that materially affected the disposition. Only the portion of the will caused by the delusion is invalidated.

B. Undue Influence, the Presumption, and Confidential Relationships

Rule: Undue influence exists when a wrongdoer exerts such control over the testator's mind that the will reflects the wrongdoer's desires, not the testator's. The contestant must show (1) susceptibility, (2) opportunity, (3) disposition/motive to influence, and (4) a result appearing to be the effect of the influence. Mere advice, persuasion, or affection is not undue influence.

Rule (presumption): A presumption of undue influence arises when (1) a confidential relationship existed between the testator and the beneficiary (e.g., attorney, fiduciary, caregiver), and (2) suspicious circumstances are present — such as the beneficiary procuring or participating in the will's preparation, or the testator's weakened condition. The presumption shifts the burden to the beneficiary to rebut. A gift to the drafting attorney raises an especially strong presumption.

C. Fraud, Duress, Mistake, and No-Contest Clauses

Rule (fraud): Fraud in the execution occurs when the testator is deceived about the nature or contents of the document signed; the whole will fails. Fraud in the inducement occurs when a misrepresentation about facts influences the testator's testamentary plan; only the affected portion fails. A constructive trust may be imposed to prevent unjust enrichment.

Rule (duress and mistake): Duress (coercion by threat) invalidates the coerced provisions. Mistake in the inducement (a mistaken reason for a gift) is generally not a ground for relief unless both the mistake and what the testator would have done appear on the face of the will. Courts traditionally would not reform wills for mistake, but the UPC and modern Restatement permit reformation of a will to correct a mistake (even an unambiguous one) on clear and convincing evidence of the testator's intent and the nature of the mistake.

Rule (no-contest / in terrorem clause): A clause forfeiting a beneficiary's gift if the beneficiary contests the will is enforced in many states, but the UPC and a majority will not enforce it if the contestant had probable cause to bring the challenge.

EXAMPLE: A caregiver who isolated an elderly testator, drove him to a new attorney, and received the bulk of the estate triggers a presumption of undue influence: a confidential relationship plus suspicious circumstances shift the burden to the caregiver to prove the will was the testator's free act.

ESSAY WRITING TIP: Will-contest essays are issue buffets — capacity, insane delusion, undue influence, fraud, duress, and mistake can all coexist. Address each ground separately with its distinct elements. For undue influence, always check whether the presumption applies (confidential relationship + suspicious circumstances) because that shifts the burden and is the highest-value point. Conclude on standing: confirm the contestant is an interested person.

MEE TIP: Distinguish insane delusion (a false belief against all evidence affecting a specific gift) from a simple mistake (which is generally not actionable), and distinguish fraud in the execution (entire will void) from fraud in the inducement (only the tainted gift void, often remedied by constructive trust). Note the modern UPC trend toward reforming wills for mistake on clear and convincing evidence — a change from the common-law no-reformation rule.

VIII. CREATION OF TRUSTS

Rule: A valid private express trust requires (1) a settlor with capacity and intent to create a trust, (2) trust property (the res), (3) one or more ascertainable beneficiaries, (4) a valid trust purpose, and (5) a trustee (though a trust will not fail solely for lack of a trustee — the court will appoint one). A trust splits title: the trustee holds legal title and the beneficiaries hold equitable title.

A. Settlor Capacity and Intent

Rule: The settlor must have capacity (the same capacity as for a will for a testamentary trust; contractual capacity for an inter vivos trust) and must manifest a present intent to create a trust imposing enforceable duties. Precatory language (mere wish, hope, or recommendation) generally does not create a trust. No particular words are required, and the word "trust" need not be used.

B. Trust Property (Res)

Rule: There must be identifiable trust property. Any presently existing interest that can be transferred may be trust res, including future interests, but not a mere expectancy (e.g., a hoped-for inheritance) or a future profit not yet in existence. The res must be segregated from the trustee's own property.

C. Ascertainable Beneficiaries

Rule: A private trust must have definite, ascertainable beneficiaries capable of enforcing the trust — someone to whom the trustee owes duties. A trust "for my friends" fails for indefiniteness. The UTC permits a trust for an indefinite class if the trustee has power to select, and recognizes trusts for the care of an animal and other noncharitable purposes (honorary trusts). Charitable trusts are exempt from the ascertainable-beneficiary requirement.

D. Methods of Creation; Secret and Semi-Secret Trusts

Rule: A trust may be created by (1) inter vivos transfer to a trustee, (2) declaration of trust (the settlor declares herself trustee — no delivery needed), or (3) testamentary trust (created in a will). An oral inter vivos trust of personal property is valid; a trust of land must satisfy the Statute of Frauds.

Rule (secret and semi-secret trusts): A secret trust arises when a will makes an absolute gift on the face of the will, but the beneficiary secretly promised to hold it for another; courts admit extrinsic evidence and impose a constructive trust for the intended beneficiary to prevent unjust enrichment. A semi-secret trust arises when the will states that property is given in trust but fails to name the beneficiary; the traditional rule is that the trust fails and a resulting trust arises for the testator's estate (because the testamentary intent appears on the will's face but cannot be completed). The modern trend treats both alike via constructive trust.

ESSAY WRITING TIP: Build trust-creation analysis as a five-element checklist (intent, res, beneficiaries, purpose, trustee), and address the "trust will not fail for lack of a trustee" point whenever the named trustee is missing, dead, or declines. Watch for precatory language — quote the words and argue whether they impose an enforceable duty or merely express a wish.

MEE TIP: Secret vs. semi-secret trusts are a classic distinction. Remember the counterintuitive traditional result: the secret trust (absolute gift on the face) yields a constructive trust for the intended beneficiary, while the semi-secret trust (gift "in trust" but no named beneficiary) yields a resulting trust back to the estate. Mention the modern trend to enforce both by constructive trust.

IX. TYPES OF TRUSTS — CHARITABLE, HONORARY, RESULTING, AND CONSTRUCTIVE

A. Charitable Trusts

Rule: A charitable trust must have a charitable purpose — relief of poverty, advancement of education or religion, promotion of health, governmental or municipal purposes, or other purposes beneficial to the community. It must benefit the public at large or an indefinite class, not named individuals. Charitable trusts are exempt from the Rule Against Perpetuities and may last forever, and are enforced by the state Attorney General (the public has no specific enforcer).

Rule (cy pres): If a specific charitable purpose becomes illegal, impossible, or impracticable, the court may apply cy pres ("as near as possible") to redirect the property to a similar charitable purpose, provided the settlor had a general charitable intent. The UTC presumes general charitable intent. If only a specific intent existed, the trust property results back to the settlor or the settlor's estate.

EXAMPLE: A trust funds research to cure a disease that is later eradicated. Because the purpose is now impossible but the settlor had a general charitable intent (advancing public health), a court applies cy pres to redirect the funds to research on a related disease rather than letting the trust fail.

B. Honorary Trusts

Rule: An honorary trust has a noncharitable purpose with no ascertainable human beneficiary (e.g., care of a pet, maintenance of a grave). Traditionally these failed for lack of a beneficiary to enforce them, but the trustee was permitted to carry out the purpose "on his honor." The UTC validates trusts for the care of an animal (lasting for the animal's life) and other noncharitable purposes (limited to 21 years), enforceable by a person named in the trust or appointed by the court.

C. Resulting Trusts

Rule: A resulting trust is an implied-in-law reversionary trust that returns property to the settlor or the settlor's estate when (1) an express trust fails or is incompletely disposed of, (2) a charitable trust ends and cy pres does not apply, or (3) a purchase-money resulting trust arises (one person pays the purchase price but title is taken in another's name, who is not a natural object of bounty). It is based on the presumed intent of the parties.

D. Constructive Trusts

Rule: A constructive trust is not a trust at all but an equitable remedy to prevent unjust enrichment arising from fraud, duress, breach of a confidential relationship, breach of a promise (as with secret trusts), or wrongful conduct (such as the slayer rule). The wrongful holder is treated as a trustee whose only duty is to convey the property to the rightful party.

ESSAY WRITING TIP: Distinguish the four types crisply. Charitable and honorary trusts are express trusts with special validity rules; resulting and constructive trusts are implied and arise by operation of law. When an express trust fails, reach for a resulting trust (property goes back); when wrongdoing must be remedied, reach for a constructive trust (property goes to the victim).

MEE TIP: Cy pres is a high-frequency MEE topic. State the three elements: a charitable trust, a purpose that became impossible/impracticable/illegal, and the settlor's general (not merely specific) charitable intent — which the UTC presumes. If general intent is absent, the property results to the settlor's estate. Pair cy pres with the AG's enforcement role and the RAP exemption.

X. REVOCABLE TRUSTS, WILL SUBSTITUTES, AND CREDITOR PROTECTION

A. Revocable Trusts and Other Will Substitutes

Rule: A revocable inter vivos trust is the central modern will substitute, allowing property to avoid probate while remaining under the settlor's control. Under the UTC, a trust is presumed revocable unless the terms expressly state it is irrevocable (reversing the common-law presumption of irrevocability). Other will substitutes include POD (payable-on-death) and TOD (transfer-on-death) accounts, joint tenancy and joint bank accounts with survivorship, and life insurance and retirement-plan beneficiary designations. These pass outside probate by their own terms and are valid nontestamentary transfers despite not meeting will formalities.

B. Spendthrift, Support, and Discretionary Trusts; Creditor Rights

Rule (spendthrift): A spendthrift clause bars the beneficiary from voluntarily transferring (assigning) the interest and bars creditors from reaching it until distributions are actually made. Spendthrift protection is valid against most creditors.

Rule (exception creditors): Certain creditors pierce spendthrift protection even before distribution: (1) a beneficiary's child or spouse with a support or alimony judgment, (2) a judgment creditor who provided necessaries, and (3) governmental claims (e.g., taxes). The UTC also lets these exception creditors reach mandatory distributions.

Rule (support and discretionary): In a support trust, the trustee must pay only what is necessary for the beneficiary's support; creditors generally cannot reach it (except suppliers of necessaries). In a discretionary trust, the trustee has discretion over distributions; a creditor stands in the beneficiary's shoes and cannot compel a distribution, though under the UTC a creditor may reach distributions the trustee actually decides to make.

Rule (self-settled trusts): A settlor cannot use a spendthrift clause to shield trust assets from her own creditors where the settlor is also a beneficiary — creditors of the settlor of a self-settled trust may reach the maximum amount the trustee could distribute to the settlor. A minority of states permit domestic asset protection trusts (DAPTs) by statute, but the general rule strongly disfavors self-settled spendthrift protection.

EXAMPLE: A trust pays income to B with a spendthrift clause. B's ordinary creditor (a credit-card company) cannot attach B's interest. But B's ex-spouse with a child-support order is an exception creditor and may reach the trust distributions despite the spendthrift clause.

ESSAY WRITING TIP: When creditors pursue a trust beneficiary, first classify the trust (spendthrift, support, discretionary, or self-settled) because each has a distinct creditor-rights rule. Then ask whether the creditor is an ordinary creditor (usually blocked by a spendthrift clause) or an exception creditor (child/spouse support, necessaries provider, or government). Flag the self-settled rule whenever the settlor is also a beneficiary — that is fatal to spendthrift protection in most states.

MEE TIP: The UTC's revocability presumption (trusts are presumptively revocable) reverses the common law and is frequently tested — state both rules. Spendthrift exception creditors and the self-settled-trust limitation are also recurring. Note that will substitutes (POD/TOD, joint accounts, life insurance) pass outside probate and are not subject to will formalities, but may be pulled into the augmented estate for elective-share purposes.

XI. TRUST ADMINISTRATION — POWERS AND FIDUCIARY DUTIES

Rule: The trustee holds legal title and must administer the trust solely in the interest of the beneficiaries, exercising the powers granted by the trust instrument and by statute, and discharging the fiduciary duties imposed by law.

A. The Duty of Loyalty and the No-Self-Dealing Rule

Rule: The duty of loyalty requires the trustee to administer the trust solely in the beneficiaries' interest. Self-dealing (buying from or selling to the trust, borrowing trust funds, profiting personally) violates the "no further inquiry" rule — the transaction is voidable regardless of good faith or fairness, unless authorized by the trust, the beneficiaries' informed consent, or a court. Conflicts with third parties (not self-dealing) are judged by a fairness/reasonableness standard.

B. The Duty of Prudence and the Uniform Prudent Investor Act

Rule: Under the Uniform Prudent Investor Act (UPIA), the trustee must invest as a prudent investor, evaluating investments as part of the overall portfolio (modern portfolio theory) rather than in isolation, with an appropriate risk-return strategy. The trustee has a duty to diversify unless special circumstances dictate otherwise. The old "legal list" of permitted investments and the rule against speculation are superseded. The trustee may, and often must, delegate investment functions to a qualified agent, exercising care in selecting and monitoring the agent.

C. Impartiality, Accounting, and Other Duties

Rule (impartiality): The trustee must act impartially among beneficiaries, balancing the interests of income beneficiaries (who want current yield) and remainder beneficiaries (who want growth and principal preservation).

Rule (account and inform): The trustee has a duty to keep beneficiaries reasonably informed and to account — providing reports of trust property, receipts, and disbursements. The UTC requires notice to qualified beneficiaries of the trust's existence and the trustee's identity.

Other duties: The trustee must not commingle trust assets with personal assets, must earmark trust property as belonging to the trust, must collect and protect trust property, and must administer the trust according to its terms. The duty to delegate ministerial functions is permitted; the historic rule against delegating discretionary functions is relaxed under the UPIA.

D. Breach of Trust and Remedies

Rule: On a breach of trust, beneficiaries may (1) compel performance, (2) enjoin a breach, (3) compel the trustee to restore the trust (surcharge) for losses or the trustee's profit, (4) trace and recover trust property or its product, (5) impose a constructive trust or equitable lien, or (6) remove the trustee. A trustee is liable for the greater of the loss caused or the profit made. A trustee who commits multiple breaches generally may not offset a gain from one breach against a loss from another.

EXAMPLE: A trustee buys a trust-owned parcel for himself at fair market value. Even though the price was fair, the purchase violates the no-self-dealing rule and is voidable by the beneficiaries under the "no further inquiry" rule — the trustee's good faith and the fairness of the price are irrelevant.

ESSAY WRITING TIP: For breach-of-trust essays, identify the specific duty breached (loyalty, prudence, impartiality, account, earmark, no-commingling), then list the available remedies, emphasizing surcharge and the no-further-inquiry rule for self-dealing. State that self-dealing is voidable regardless of fairness, which is the single highest-value point in a loyalty question.

MEE TIP: The UPIA's portfolio approach and duty to diversify are heavily tested — note that investments are judged in the context of the entire portfolio, not in isolation, and that delegation is now permitted (a reversal of the common law). For loyalty, distinguish self-dealing (no-further-inquiry, voidable regardless of good faith) from a mere conflict with a third party (judged for reasonableness).

XII. PRINCIPAL AND INCOME ALLOCATION

Rule: Because income beneficiaries and remainder beneficiaries have competing interests, the Uniform Principal and Income Act (UPIA, the principal-and-income version) allocates receipts and expenses. Generally, ordinary receipts (rents, interest, cash dividends) are income, while extraordinary receipts (proceeds from the sale of trust assets, stock dividends, principal repayments) are principal. Ordinary expenses are charged to income; extraordinary expenses and capital improvements to principal. The Act grants the trustee an adjustment power to reallocate between principal and income to achieve impartiality, and many states permit a unitrust conversion (paying a fixed percentage of value annually) to resolve the income/remainder tension.

ESSAY WRITING TIP: Tie principal-and-income allocation directly to the duty of impartiality. When the trust holds growth stock favoring the remainder beneficiary or high-yield bonds favoring the income beneficiary, discuss the trustee's adjustment power (or unitrust conversion) as the mechanism for balancing the two classes fairly.

MEE TIP: Remember the default allocations — cash dividends and interest are income; sale proceeds and stock dividends are principal — and that the modern Act gives the trustee an adjustment power to deviate in the name of impartiality. Pair this with a prudent-investor question, since a total-return portfolio strategy may require reallocation to keep the income beneficiary whole.

XIII. MODIFICATION AND TERMINATION OF TRUSTS

A. By the Settlor

Rule: A settlor may modify or revoke a revocable trust at will. An irrevocable trust may be modified or terminated by the settlor together with all beneficiaries, regardless of any material purpose.

B. The Claflin Doctrine and Beneficiary Consent

Rule (Claflin): The beneficiaries acting together may compel modification or termination of an irrevocable trust only if (1) all beneficiaries consent and (2) the modification or termination would not frustrate a material purpose of the settlor. A spendthrift clause, support provision, or discretionary structure is typically treated as a material purpose that blocks beneficiary-driven termination. The UTC permits a court to approve modification with less than unanimous consent if the interests of non-consenting beneficiaries are adequately protected.

C. Equitable Deviation, Uneconomic Trusts, and Decanting

Rule (changed circumstances / equitable deviation): A court may modify the administrative or even dispositive terms of a trust if unanticipated circumstances threaten the trust's purposes; the UTC allows modification to further the settlor's probable intent. Cy pres is the parallel doctrine for charitable trusts.

Rule (uneconomic trusts): Under the UTC, a trustee may terminate a trust whose value is too small to justify administration costs (commonly under $50,000) after notice to beneficiaries.

Rule (decanting): Many states permit a trustee with discretionary distribution authority to "decant" — distribute trust assets into a new trust with different (usually updated) terms — effectively modifying an irrevocable trust without court approval, subject to statutory limits.

EXAMPLE: A trust directs the trustee to retain a parcel of farmland indefinitely, but a change in zoning makes the land unproductive and a tax burden. A court may apply equitable deviation to authorize the sale because the unanticipated change threatens the trust's purpose of benefiting the beneficiaries.

ESSAY WRITING TIP: For trust-modification essays, separate the actors: settlor alone (revocable trust); settlor + all beneficiaries (any irrevocable trust); beneficiaries alone (Claflin — only if no material purpose frustrated). Identify spendthrift/support/discretionary provisions as material purposes that defeat beneficiary-driven termination, then mention equitable deviation, the uneconomic-trust rule, and decanting as alternative routes.

MEE TIP: Claflin is a near-certain test point. State both prongs (unanimous consent and no frustration of a material purpose) and explain that a spendthrift clause is a material purpose blocking termination. Note the UTC's relaxation allowing court-approved modification despite non-unanimous consent, plus equitable deviation for unanticipated circumstances.

XIV. POWERS OF APPOINTMENT

Rule: A power of appointment is authority given by a donor to a donee (holder) to designate who will receive property (the appointive property) among permissible objects. A general power allows the donee to appoint to anyone, including the donee, the donee's estate, or the donee's creditors. A special (limited / nongeneral) power restricts appointment to a defined class excluding the donee and the donee's estate and creditors. The distinction matters for taxation and creditor access — appointive property under a general power is reachable by the donee's creditors (and included in the donee's estate), while property under a special power generally is not.

A. Exercise, Takers in Default, and Lapse

Rule (exercise): The donee exercises the power as the instrument directs. A residuary clause in the donee's will does not automatically exercise a power unless the will manifests intent to exercise it or a "blanket-exercise" / blending clause applies; the UPC requires a manifestation of intent (a power referencing the specific power, or one for which the donor required specific reference, must be specifically referenced). If the donee fails to exercise the power, the property passes to the takers in default named by the donor; if none are named, it returns to the donor's estate (special power) or, for a general power, may pass to the donee's estate under the "capture" doctrine.

Rule (capture): Under the capture doctrine, where the donee of a general power makes an ineffective exercise (e.g., to an impermissible object or a failed appointment) but manifests intent to assume control of the property, the appointive property is "captured" into the donee's estate rather than reverting to the donor.

B. Fraud on the Power

Rule: An exercise of a special power for the benefit of a nonobject — for example, appointing to a permissible object under a secret agreement that the object will reconvey to the donee or pay the donee's debts — is a fraud on the power and is void to the extent of the improper purpose.

EXAMPLE: D gives the donee a special power to appoint among "my descendants." The donee appoints to a grandchild on the secret understanding that the grandchild will repay the donee's personal debt. The appointment is a fraud on the power and is void to that extent; the property passes to the takers in default.

ESSAY WRITING TIP: Always begin a powers-of-appointment analysis by classifying the power as general or special, because that classification controls creditor access, estate-tax inclusion, and the consequences of non-exercise. Then determine whether the donee validly exercised the power, watching for the rule that a generic residuary clause does not exercise a power absent manifested intent or a specific-reference requirement.

MEE TIP: The examiners test (1) whether a residuary clause exercised a power (usually no, absent manifested intent or required specific reference), (2) the takers-in-default default, and (3) creditor access (creditors reach property under a general power but not a special power). Mention capture for ineffective general-power exercises and fraud-on-the-power for special-power abuse.

XV. FUTURE INTERESTS AND THE RULE AGAINST PERPETUITIES (AS APPLIED TO TRUSTS)

Rule: Trusts routinely create future interests. A remainder is vested if held by an ascertained person with no condition precedent (other than the natural termination of the prior estate) and contingent if subject to a condition precedent or held by an unascertained person. A vested remainder subject to open is held by a class that may grow.

Rule (RAP): The common-law Rule Against Perpetuities provides that no interest is valid unless it must vest or fail, if at all, within 21 years after the death of a life in being at the creation of the interest. RAP applies to contingent remainders, executory interests, vested remainders subject to open, and powers of appointment, but not to charitable trusts (and not to a gift from one charity to another). Modern reforms include the "wait-and-see" approach (validity judged by what actually happens) and the Uniform Statutory Rule Against Perpetuities (USRAP), which provides an alternative 90-year vesting period. Many states have abolished RAP for trusts, permitting perpetual ("dynasty") trusts.

EXAMPLE: A trust gives income to A for life, then to A's first child to reach age 30. If A has no child age 30 at creation, the interest could vest more than 21 years after A's death (a child could reach 30 long after A dies), violating common-law RAP — but under wait-and-see or USRAP's 90-year period, the gift may be saved if it actually vests in time.

ESSAY WRITING TIP: On the MEE, RAP usually appears in a supporting role within a trust question rather than as a stand-alone puzzle. Identify the contingent interest, name a measuring life, and ask whether vesting is certain within the life plus 21 years; if it might violate the rule, pivot to wait-and-see/USRAP reform and note the charitable-trust exemption. Do not over-invest time relative to the trust's core issues.

MEE TIP: Remember the charitable-trust RAP exemption and the modern reforms (wait-and-see, USRAP's 90-year period, dynasty-trust statutes). A class gift conditioned on reaching an age greater than 21 is the classic RAP violator. Flag it, then save it with a reform statute if the jurisdiction has one.

XVI. FIDUCIARY ADMINISTRATION OF ESTATES

Rule: Administration channels a decedent's property through probate (property passing by will or intestacy) or nonprobate mechanisms (will substitutes — revocable trusts, POD/TOD accounts, joint tenancy, life insurance — which pass outside the probate estate). The court appoints a personal representative — an executor (named in the will) or administrator (appointed in intestacy) — to marshal assets, pay claims, and distribute the estate.

A. Personal Representative Duties

Rule: The personal representative is a fiduciary owing duties of loyalty, care, and impartiality analogous to a trustee's. The PR must (1) collect and inventory assets, (2) give notice to creditors and pay valid claims in statutory priority, (3) manage and protect estate property prudently, (4) pay taxes and expenses, and (5) distribute the remainder to the beneficiaries or heirs, then account and close the estate.

B. Creditor Claims and Nonclaim Statutes

Rule: Creditors must present claims within the period set by the nonclaim statute or be barred. The UPC sets a short period (e.g., four months after published notice) for known and reasonably ascertainable creditors who must receive actual notice (per Tulsa Professional Collection Services v. Pope), plus an outer limit (e.g., one year from death) regardless of notice. Claims are paid in order of priority — administration expenses and family allowances first, then funeral expenses, taxes, and general creditors. Nonprobate assets generally pass free of probate creditors' claims, though the UPC permits limited recovery against certain nonprobate transferees if the probate estate is insufficient.

EXAMPLE: A PR publishes notice to creditors but knows of a specific hospital bill. Under Pope, the reasonably ascertainable hospital creditor is entitled to actual notice; publication alone does not start the nonclaim period running against that known creditor, and a claim filed after the published period but within the statutory window may still be allowed.

ESSAY WRITING TIP: When an estate-administration issue appears, first separate probate from nonprobate property because creditors and the PR reach only the probate estate (subject to the augmented-estate and limited-recovery exceptions). Then walk the PR's duties as a checklist and apply the nonclaim statute, distinguishing known/ascertainable creditors (actual notice required) from unknown creditors (publication suffices).

MEE TIP: The PR's fiduciary duties mirror a trustee's — loyalty, prudence, impartiality — so import your trust-administration analysis. The frequently tested wrinkle is the nonclaim statute and the Pope actual-notice requirement for reasonably ascertainable creditors. Remember that nonprobate assets ordinarily escape probate creditors but may be reached for the elective share and, under the UPC, for an insufficient estate.

XVII. THE WILLS & TRUSTS ATTACK PLAN

Use this numbered checklist to organize any Wills, Trusts & Estates essay under time pressure. Move through it in order, and for every issue state the common-law rule and the UPC/UTC rule, then resolve under the modern majority approach.

1. Characterize the property. Is it probate (will/intestacy) or nonprobate (will substitute)? This frames everything that follows, including creditor and elective-share analysis.

2. Is there a valid will? Run the execution checklist — writing, signature, two witnesses, presence (line-of-sight vs. conscious-presence), testamentary intent and capacity. If defective, apply harmless error/substantial compliance and consider a holograph.

3. Has the will been revoked or changed? Check physical act, subsequent instrument, and operation of law (divorce). Raise DRR, revival, and the lost-will presumption where relevant.

4. Construe the gifts. Classify each gift; apply lapse/anti-lapse, class-gift rules, ademption (identity vs. intent theory), abatement order, exoneration, and the 120-hour survival rule.

5. If no valid will (or partial intestacy), distribute by intestacy. Compute the spouse's share, then divide among descendants using the jurisdiction's system (per capita at each generation under the UPC). Apply advancements, disclaimer, the slayer rule, and simultaneous death.

6. Check family-protection limits. Elective/forced share and augmented estate; pretermitted spouse and children; homestead, exempt property, and family allowance.

7. Evaluate will contests. Capacity, insane delusion, undue influence (and the burden-shifting presumption), fraud, duress, mistake (and modern reformation), no-contest clauses, and standing.

8. Is there a valid trust? Run the five elements (intent, res, beneficiaries, purpose, trustee), classify the trust type (private, charitable, honorary, resulting, constructive), and address secret/semi-secret issues.

9. Analyze creditor rights against the trust. Spendthrift, support, discretionary, and self-settled distinctions; identify exception creditors.

10. Assess trust administration. Identify the duty breached (loyalty/self-dealing, prudence/UPIA, impartiality, account, no-commingling, earmark); apply remedies (surcharge, constructive trust, removal); allocate principal and income.

11. Consider modification or termination. Settlor; settlor + beneficiaries; Claflin; equitable deviation; uneconomic trust; decanting; cy pres for charitable trusts.

12. Resolve powers of appointment and future interests. Classify general vs. special; check exercise, takers in default, capture, fraud on the power; screen contingent interests against RAP and apply reforms.

13. Administer the estate. Appoint the personal representative; marshal assets; give creditor notice (actual notice for ascertainable creditors per Pope); pay claims in priority; distribute and account.

14. Always state both rules. For every split, articulate the common-law rule and the UPC/UTC rule, then conclude under the modern majority — that dual statement is where the points live.

Related

➡ Wills, Trusts & Estates One-Page Cheat Sheet