Wills and Trusts on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Wills and Trusts on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching Wills and Trusts MEE questions.
Note that both Wills and Trusts regularly appear on the Multistate Essay Exam.
Wills and Trusts on the Multistate Essay Exam
1. First, be aware of how Wills and Trusts are tested on the Multistate Essay Exam
Wills and Trusts are often tested separately on the Multistate Essay Exam. So you will likely see a Wills question or a Trusts question (but not both). An exception to this was in July 2017, when both a Wills issue and a Trusts issue appeared in the same question. You can see the relative frequency of Wills and Trusts questions in this chart:
Wills and Trusts tend not to be combined with other subjects, though Wills was combined with Conflict of Laws once in the past.
A few notes
- Wills is commonly referred to as “Decedents’ Estates” by the National Conference of Bar Examiners (NCBE).
- Trusts is referred to as “Trusts and Future Interests.” Class gift and future interest problems often are tested in Trusts questions. Most students learn class gifts and future interests in conjunction with Real Property, so just be aware that you may very well see those issues tested in Trusts questions—they often are!
- When the NCBE wrote 7–9 questions for the Multistate Essay Exam and gave jurisdictions the choice of questions to administer, the NCBE often included both a Wills question and a Trusts question. (And presumably, most jurisdictions would choose one to administer.) However, one or the other has appeared on the Uniform Bar Exam (UBE) (as you can see from the chart above). In other words, you likely won’t see a full Wills question and a full Trusts question on the Multistate Essay Exam or Uniform Bar Exam.
2. Be aware of the highly tested Wills and Trusts issues
The Examiners tend to test several of the same issues repeatedly in Wills and Trusts Multistate Essay Exam questions. You can maximize your score by being aware of these highly tested issues. (We have a summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Wills Multistate Essay Exam issues include:
One of the more frequent fact patterns in Wills on the Multistate Essay Exam is a decedent who dies without a will or an incomplete will. The fancy word for this “intestate”—so we look to the laws of “intestate succession” (e.g., who will be a successor to the property if the person dies without a last will and testament!). If the decedent’s spouse and parents do not survive the testator, there are two main schemes on how to divide the property among the children.
The first is per capita at each generation. To decide who gets what, find the first generation where there are children living. Give one share to each living child and one share for each in that generation who died but left surviving children of their own. Then, combine all the shares of the deceased persons and divide them equally at the next generational level. The key is that every individual at each generational level is treated alike.
The second scheme is per capita with representation (or modern per stirpes). The process begins the same, but instead of combining the shares of the deceased to distribute evenly, the children of the deceased take the exact share that their deceased parents would have. Thus, individuals at each generational level may not be treated alike.
Validity of a will
Many states follow the general requirement that a valid will be in writing, signed by the testator, and witnessed by two witnesses. The testator must be 18 years of age or older and have the intent that the document serve as his will. However, even when you see invalid wills on the Multistate Essay Exam, consider whether the document could serve as a holographic will. Holographic wills are recognized by about half of the states. They are valid if signed and (in many states) the material portions are in the testator’s handwriting. The Uniform Probate Code also provides for the court to use its dispensing power to save an invalid will so long as there is clear and convincing evidence that the decedent intended the document to be their will.
MEE Tip: Remember that even if it appears there is not a valid will, you should still list the requirements (and note that they are not met) before discussing holographic wills or the dispensing power. Connect all the dots for the grader to maximize your score!
Revocation of a will
Questions in Wills on the Multistate Essay Exam might test you on revocation by a physical act. This could include the execution of a new will or by some other physical act, such as cancellation or other writings on the document. This must be done with the intent to revoke the will. Either the testator or someone acting at the testator’s direction and in his conscious presence may revoke the will. Under the dependent relative revocation doctrine, a first will is not revoked if a later will is found invalid. If a testator revokes a will or bequest based on mistaken assumptions of law or fact, the revocation of the will is ineffective if it appears that the testator would not have revoked had he had accurate information.
Finally, divorce revokes gifts in favor of a spouse. There must actually be a final divorce, not just the filing for divorce.
Under this statute, an individual who feloniously and intentionally kills the decedent or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent forfeits all benefits with respect to the decedent’s estate. Voluntary manslaughter counts as a felonious and intentional killing, while involuntary manslaughter does not. When you see this tested in Wills on the Multistate Essay Exam, pay close attention to whether the killing was actually felonious and intentional.
MEE Tip: As it typically appears, the statute will not bar the gift because the killing does not meet the requisite standard.
Some of the highly tested Trusts MEE issues include:
A trust of personal property is valid if it has a trustee, a beneficiary, and trust property. (Note: most commercial courses will give you a long definition to memorize, but MEE points sheets keep it simple and tend to list those three requirements!)
A trustee manages the trust property and holds it for the benefit of the beneficiaries. However, a trust will not fail for lack of a specifically-named trustee. The court can appoint one. A trust’s beneficiaries must be definite and ascertainable. The same person cannot be both the sole trustee and the sole beneficiary. The trust property, or trust res, must be identifiable.
If a trust is revocable, a settlor may terminate the trust if all beneficiaries are in existence and all agree. After the settlor dies, an irrevocable trust can be terminated through unanimous consent of both the income beneficiaries and the remaindermen. Additionally, there must be no material purpose of the trust yet to be performed.
Types of trusts
A variety of different types of trusts have been tested in Trusts on the Multistate Essay Exam:
- Pour-over will: One type is a pour-over will, where a will makes a gift to a trust. These types of provisions will be valid so long as the trust is identified in the will and the terms are incorporated in a writing executed before or concurrently with the execution of the will. Under the modern approach, later-made amendments to the trust are valid. Under the common law, amendments made after the execution of the will are not valid.
- Discretionary trust: In a discretionary trust, the trustee has discretion to decide when to make a distribution to a beneficiary. The beneficiary cannot demand any disbursements. Neither can a creditor, except for child support or alimony in some states. In a support trust, the trustee must pay what is necessary for the beneficiary’s support. A spendthrift trust restrains both the voluntary and involuntary transfer of a beneficiary’s interest. The only creditors that can reach a beneficiary’s distribution before it reaches the beneficiary are child/spousal support creditors, a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust, the state or the United States, or a creditor with a claim for necessaries (only some states recognize this exception).
- Charitable trust: The final type of trust tested in Trusts on the Multistate Essay Exam is a charitable trust, or a trust created for a charitable purpose. It must have a large number of not-readily-identifiable individuals. This type of trust may be terminated if the charitable purpose becomes unlawful, impracticable, or impossible. However, cy pres may save the trust. If the purpose is no longer possible, no alternative charity is named in the trust, and the court determines that the settlor had a general rather than specific charitable intent, then cy pres can be applied to modify or terminate the trust. This involves directing that the trust property be distributed in a manner consistent with the settlor’s general charitable intent.
3. Make sure you understand the vocabulary
You should be able to use and define basic Wills and Trusts vocabulary. A MEE answer that does not use the appropriate vocabulary will appear incomplete. Further, it is much easier to score higher if you understand exactly what the Wills and Trusts vocabulary terms mean. Here, we list a few terms you should be familiar with:
- Settlor (creates the trust)
- Beneficiary (benefits from the trust)
- Trustee (manages the trust)
- Testamentary trust (a trust created by a will)
- Pourover will (a will that gives a gift to a trust)
- Power of appointment (gives a beneficiary the power to designate who will receive specific property)
- Rule of convenience (Unless otherwise stated, a class closes when one member is entitled to a distribution. This is a Real Property concept that appears in Trusts questions!)
- Ademption (failure of a gift)
- Codicil (a supplement to a will that modifies, adds, explains, or revokes a will)
- Descendant or issue (all lineal descendants—children, grandchildren)
- Devise or legacy (a fancy word for “gift” left by a will)
- Disclaim (to reject a gift, usually for tax purposes)
- Heirs (those who inherit property when the testator dies intestate—i.e., without a will)
- Intestate (to die without a will)
- Predecease (to die before someone)
- Testate (to die with a will)
- Testator (a person who dies with a will)
4. Focus on past essays in conjunction with your bar review outlines
Many commercial courses seem to not teach Wills and Trusts exactly how it is tested on the Multistate Essay Exam. Here are a few examples:
- Some courses mix up the words “per capita at each generation” and “per capita with representation.” So, the NCBE will state them one way but courses will define them differently.
- Most courses focus a lot on calculating the share of a surviving spouse. This is not really tested in much detail on the MEE.
- Issues regarding class gifts are complicated in Wills and Trusts questions. Whether only class members take or whether class members can devise their interest or whether the antilapse statute will save a gift are all issues that are tested on the MEE but not taught in a lot of detail by commercial courses. (We teach them in our MEE Essay Course and give an overview in our MEE One-Sheets).
- The MEE has tested the parentelic method and consanguinity method of determining heirship, which does not seem to be commonly covered by commercial courses.
- Courses often list different elements of trusts, undue influence, and capacity that sometimes appear on the MEE. Using slightly different definitions and stating slightly different elements won’t probably hurt your score, but it is probably more advantageous to list those terms used by the NCBE.
- Some courses do not teach living wills or durable health care powers, which appear on the MEE (most recently, in February 2016).
These are just some examples of how some commercial courses miss the boat in teaching some of the topics that appear on Wills and Trusts Multistate Essay Exam questions. So, while a course might give a decent overview of Wills and Trusts, we recommend that you practice past essays so you can fill in any gaps in your outline and maximize your score on any Wills or Trusts Multistate Essay Exam question that appears on your exam!
Practice is critical if you want to master Wills and Trusts on the Multistate Essay Exam. Some of the concepts are difficult to learn in theory but make much more sense after you see how they are actually tested on the MEE. And, many concepts are tested in the same way on the MEE.
Here are some links to (free) Wills and Trusts Multistate Essay Exam questions and NCBE point sheets. (If you would like to purchase a book of Wills and Trusts MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- Feb 2011 MEE: Trusts: discretionary trusts, class gifts, the definition of child
- Feb 2011 MEE: Wills: validity, antilapse, abatement
- July 2009 MEE: Trusts: cy pres, UPIA, the duty of loyalty
- July 2009 MEE: Wills: Intestacy, undue influence
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