Creation of Express Inter Vivos Trust Flashcards
Default Rule of Inter Vivos Trust
irrevocable by default unless
they must expressly provide for revocability or modification under the terms of the trust
Formalities for Creation
in writing
signed by at least one trustee unless settlor is sole trustee
notarized
or executed in the presence of 2 witnesses who sign instrument
When Trust res is real property
deed must be executed conveying property to trustee
delivered to trustee or trustees agent
Trust property is personal property
how transfer can be made
delivery - actual or symbolic
constructive delivery - delivery object that represents or gives access to property
Statute of Frauds and Inter Vivos Trusts of Real Property
such trust is subject to SoF
must be in writing and signed by party to be charged
Oral Trust General Rule
oral trust involving land is not enforceable under statute of frauds
except in very narrow circumstances
Exceptions to General Rule of Oral Trusts - list
Constructive Trust
Voluntary Performance
Constructive Trust
remedy used by courts to enforce an oral trust of land or prevent unjust enrichment of purported trustee
may be used to enforce only if grantor and grantee stood in a confidential relationship or grantee fraudulently induced grantor to transfer property outright
Voluntary performance
Failure to conform to SoF will not prevent trustee from carrying out trust orders or executing a writing sufficient to satisfy the SoF
if trustee does so, creditors cannot reach trust property
Bona Fide Purchaser of Oral Trust Property
Acquires trust property while in trustee’s name and without reference to trust relationship
What result
beneficiaries rights are extinguished
not subject to any of the equities of the asset
sole recourse is against trustee for breach of fiduciary duty, if oral contract can be proved
