How to Approach an MEE Trusts and Estates Question

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On some sections of MEE, the bar examiners test lots of different topics. That hasn't been true of trusts and estates. On the essay portion of the bar exam, some T and E issues get tested way more often than others. Here's the most important thing to know going into the MEE: trust issues get tested far more often than wills or intestacy. And even within the law of trusts, there are particular issues that the examiners seem obsessed with.

By far, the most tested issue on the MEE is the scope of the trustee's fiduciary duties. In the last decade or so, the duty of prudence/care has popped up four times. The duty of loyalty has featured three times, and the duty of impartiality has come up twice. So if there's just one topic that you want to review as you're getting ready for the trusts and estates MEE, it's definitely the fiduciary duties of the trustee.

The other trust issue that comes up repeatedly is the rights of creditors. The bar examiners love to ask if the creditors of a trust beneficiary can compel payment from the trustee. That's a perfect issue for an essay because the answers are very fact-dependent. If you see a trust question about creditors, you'll need to wrestle with the particular context presented in the issue spotter. What kind of trust is at issue? What kind of creditors are seeking payment? What kind of lifestyle does the beneficiary live? All of these facts may need to be analyzed.

Okay, let's talk about some other bar examiner favorites. There've been a couple of prompts with fairly simple intestacy issues. The MEE hasn't asked a complicated per stirpes question in quite a while. The examiners seem much more interested in checking to see if you have a broad understanding of the basic order of distribution: spouse, kids, parents, siblings, et cetera.

Unsurprisingly, there have also been a couple of questions about will validity. Sometimes you'll get a fact pattern where the testator goofs up one of the formalities. Most often, it's the witnessing requirement. The bar examiners like to test witnessing issues because they aren't always fatal to the will's validity.

There are a bunch of doctrines that can save the will. For example, sometimes an unwitnessed will can be probated as a handwritten holograph. Or maybe an interested witness problem can be cleared up with the republication by codicil doctrine. Or perhaps the jurisdiction has the dispensing power. In these questions, you'll get points both for describing the deficiency with the formality, and then for showing that you understand the salvage doctrines.

There are a few other issues that have popped up more than once in the recent past. Powers of appointment and disclaimer have appeared multiple times in the last decade. Why these topics? I think the bar examiners like testing these issues because many test takers haven't studied them in depth. Powers of appointment and disclaimer aren't terribly tricky, but they don't come up in every law school trust and estates course.

To recap, if you're looking to focus your energy, the most important things to review are (1) the trustee's fiduciary duties, (2) the rights of creditors to attach trust property, and (3) the basic rules surrounding will validity. In recent years, these have been the topics that examiners have tested the most.

Reading and Preparing

That hopefully gives you a sense of what to expect on the MEE in terms of substantive doctrine.

The next question is how you should plan out your answers during the actual exam. When you get into the test, I strongly recommend that you glance at the prompts before you read the text of the issue spotter. The prompts almost always reveal what kind of question you're dealing with. They usually mention either the word "will" or the word "trust." This is helpful because it primes your brain to start thinking about the relevant rules and can help you identify key facts as you later dig into the issue spotter.

Let me give you an example. A recent MEE question had the following three prompts: (1) Would the son's interest in the trust terminate upon the son's marriage? Explain. (2) Did the trustee breach any duties by buying the trust stock, and if yes, what remedies are available to the trust beneficiaries if they sue the trustee? Explain. And (3) did the trustee breach any duties in acquiring and retaining the portfolio of mutual funds, and if yes, what remedies are available to the trust beneficiaries if they sue the trustee? Explain.

Do you see why reading the prompt first is so powerful? It's like a cheat code. The prompt here gives away a ton of valuable information. You immediately know that you've got a trust question on your hands because the word "trust" appears in the first sentence of the first prompt.

You also know exactly what to focus on when you read the fact pattern. You should obviously pay close attention to anything about the son's marriage. You also need to keep a close eye on the trustee's behavior. Without even looking at the facts, we can guess that when the trustee purchased stock from the trust, he was probably being naughty. If we can just remember some of the rules about the trustee's duties, we're going to crush this question.

One other thing to note about trusts and estates is that the MEE questions often have more prompts than other subjects. It's not uncommon for there to be three prompts, and for some of those prompts to have subparts. That just means that sometimes the answers to the individual questions are going to be short and to the point.

Don't panic if you only write a couple of brief paragraphs for one of the prompts. I mean it. Sometimes test takers start dumping irrelevant information into an answer if they think it's too short. Try to resist this temptation. If you've answered the question, move on. Trust your instincts and the hard work that you've put into studying. If your answers are well constructed using the CRAC method, you'll score big points, even if they're short.

Okay, after perusing the prompts, start reading the fact pattern. There are two trusts and estates specific warnings that we need to talk through. First and foremost, the MEE trust questions can be super jargony. There's a lot of legal vocabulary and it's important. For example, different kinds of trusts are governed by different rules. Let me give you some of the vocabulary words that you should understand before the exam starts.

What's a settlor? That's a person who sets up a trust. A trustee? That's a person who manages the trust's assets. A testamentary trust is a trust that's created in a testator's will. A revocable trust, that's important. That's a trust that the settlor can revoke or modify by following the procedures laid out in the document. Also note that in a revocable trust, the trustee's duties run to the settlor and not to the beneficiaries.

Now, what's an irrevocable trust? That's a trust where the trustee's duties run to the beneficiaries. Irrevocable trusts, you may have guessed, are much harder to modify. There generally needs to be some kind of changed circumstance or the purpose of the trust must've ended.

A couple more. What's a spendthrift clause? That's a trust term that prohibits voluntary or involuntary alienation of the beneficiary's interest. Practically, a spendthrift clause prevents creditors from attaching trust assets. A discretionary trust? That's a trust that gives the trustee some authority to make decisions about when and how to pay beneficiaries.

And finally, you might see the word "disclaimer" pop up. A disclaimer is refusing to accept a gift that you have received under a will or trust. Disclaimers generally need to be in writing, and the disclaiming beneficiary is treated as if they had died before the testator.

Trusts and estates questions present one other small challenge besides all the vocabulary. They tend to have a lot of characters in the fact pattern. Trust questions usually have a settlor, at least one trustee, a couple of beneficiaries, and maybe a creditor or two lurking around. Wills questions can have even more interested parties.

It's probably worth making a quick note or diagram about the identities of the parties so that you don't have to go back and hunt through the fact pattern to figure out who is who. The point here is not to draw a detailed family tree. You just need to give yourself a quick cheat sheet about how everyone in the problem is related.

As you're reading through the issue spotter, you want to be on the lookout for a few other things. If it's a trust question, it's always a good idea to carefully read the terms of the trust. The terms of the trust often lay out the scope of the trustee's power. For example, the terms of the trust generally explain whether the trustee has discretion to make payments to the beneficiary, or has a mandatory duty to make payments. That can affect the rights of creditors and may determine whether or not a trustee has violated their duty to make distributions to the beneficiary.

In trust questions, I also pay very close attention to the trustee's behavior. They almost always do something stupid. They make bad investments, they play favorites. They confuse income and principal. They try to sell their own assets to the trusts. On the MEE, just go ahead and assume that all trustees are like Homer Simpson. They habitually make catastrophic mistakes that cost a fortune.

It's also a good idea to consider whether there are any defects in the trust or the will. Are the formalities carried out correctly? Are the beneficiaries clearly defined? Did the settlor or testator have the needed mental capacity? In the end, if you pay attention to the terms of the trust, the trustee's behavior, and then ask yourself if there's any defects in the execution of the documents, you'll scoop up most of the MEE points.

Okay, let's talk a little bit about writing the answer.

Writing

The trusts and estates MEE questions fit nicely into the CRAC framework. If you stick to the CRAC rhythm, conclusion, rule, application, conclusion, you're going to do well. Let's take a brief look at how CRAC works on trusts and estates essays and review a few things you might want to keep in mind when you're writing your answers.

Remember, we always start our answers with a conclusion. That's the first C. Compared to a subject like con law, trusts and estates has fewer mushy rules and more clear answers. Now, occasionally, the bar examiners won't give you quite enough facts to draw a definitive conclusion. But far more often than not, there are yes and no answers to the T and E prompts.

That means that your opening sentence to each prompt will usually be a firm conclusion, followed, as always, by a "because" statement. Now, the rule statements in T and E are pretty straightforward. There are very few multifactor balancing tests, like there are in constitutional law, or anything resembling the complicated five-factor test for adverse possesion.

The one tricky thing about trusts and estates is that, like property, it's firmly a creature of state law. While there are certainly broad principles that unite American trust and estate law, sometimes different jurisdictions have very different rules. Moreover, the bar examiners' analysis of the MEE questions often cites rules articulated by the Uniform Law Commission. The Uniform Probate Code and the Uniform Trust Code both carry a lot of weight.

So, what should you do if you get an issue like, for example, the spousal elective share that varies considerably by state? First, don't freak out. Then, always start with what you remember as the majority rule. Make a rule statement and do your analysis. Then you can make a decision. If you're pressed for time, move on.

If you've articulated the majority rule, you'll get most of the points. And remember your goal isn't perfection. Your goal is to score high enough to comfortably pass the exam. If you feel okay about time, quickly explain the minority rule and describe how the minority approach would affect the outcome of the question.

Of all the subjects on the MEE, answering trusts and estates questions seems to generate the most hard feelings. That's largely because a lot of law students don't take a T and E class. It's regarded as a niche subject that isn't very exciting. Now, I think that's unfair, but we should talk about what to do if you're confronted with a prompt about a topic that you haven't studied well.

Here's the good news: both the law of wills and the law of trusts generally make a lot of sense. The entire point of this area of law is to help people get what they want. As a result, the rules are pretty intuitive. If you don't know what a rule is, just make one up by asking yourself, "What would most people want in this situation?" 80% of the time, you'll get close to the actual rule.

For example, imagine a scenario where Frankenstein makes a will that leaves everything to his bride. Then they get divorced. If Frankenstein dies after the divorce, but never makes a new will, who takes his stuff? If you can't remember the rule here, just ask, "What would the average person want in this scenario?"

Most people probably don't want their exes to take their property when they die, and that's actually the rule. On the exam, you could write, "The rule in most states is that ex-spouses are excluded from taking a person's property under a will." You'd get almost all the points for that. Trust your instincts.

What about the analysis section? Speaking in broad generalities, the trusts and estates questions rely more on bright-line rules and less on mushy standards than a subject like con law or evidence. That means that the analysis sections are sometimes a little shorter. You need to state the rule, find the relevant facts in the issue spotter, and then lay out the conclusion. Boom, boom, boom. Get in, get out, and move on to the next question. And if you have time, maybe drop down some of the minority rules or explain their UPC approach.

One final thing: most years, the trusts and estates prompts are weighted pretty evenly. There are usually three prompts and they often break down 35, 35, 30, or 40, 35, 25. I wouldn't spend any time trying to guess which prompts are worth the most. Just know that every question will require a full CRAC analysis. Have the discipline to stay in the CRAC form and you're going to dominate the T and E questions.