Express Trusts Flashcards
How do you create a private express trust?
1) manifest intent
2) specific trust property
3) one or more ascertainable beneficiaries
4) certain circumstances in writing
What is the intent to create a private express trust?
intent = inter vivos (declaration or deed of trust (if 3rd part)
or
testamentary = the Will is the trust instrument and intent to create the trust. Will must be valid.
Capacity for intent
inter vivos revocable = sttlor must have contract capcity (bc lifetime effect)
inter vivos revocale = only testamentary capacity (lesser level than for contract (permance after death)).
Purpose for intent
any purpose that is not illegal or contract to public policy
Invalid trust
trust for illegal purpose, performance involves commission of tort or crim, contrary to public policy
Precatory trust
Regulatory words not sufficient such as a wish or desire or hope to but not creating a legal obligation or affirmative duty.
Precatory trust may show intent if
Definite and precise directions, directions addressed to fiduciary, a natural disposition of property if no trust, or extrinsic evidence of prior support of intended beneficiary
Property
trust be funded w/ a valid interest in property, interest becomes trust or corpus, and delivery of valid interest in prop to trustee
What is delivery of valid interest and property
actual, symbolic, or constructive
what is actual delivery of a valid interest in property
Hand to hand delivery of the personal property
what is symbolic delivery of valid interest in property
some item representing ownership including a written deed required for real property
what is constructive delivery of valid interest and property?
Presenting the means to access the property such as giving trustee a key
can a settlor transfer a valid presently existing interest and property
No, setler cannot have already transferred property
What are prohibited interests?
illusory property
no mere expectancies (prospective)
contract rights?
okay, such as life ins. policy,
What is it pour-over will?
will that devises some of decedents estate to the then acting trustee of an inter vivos trust created during settlor’s lifetime
UTATA … ?
At common law
The quest to address required for the trust to be already funded
UTATA
permits amendments to the trust even after the date of the will
Property to trustee
trust must have a trustee who owes fiduciary duties to beneficiary
Who does not have capacity to be a trustee of a trust
minors, mentally incapacitated, or incarcerated
Are passive trusts permitted?
no, if trustee has no active duties then no trust comes into being
What happens if there is a lack of trustee?
Court will appoint unless settlor intended otherwise. trust doesn’t fail even if no trustee.
what are the elements for one or more ascertainable beneficiaries?
bene is the ascertainable person or group to or whose benefit trusts funds may be expended and who can sue to enforce fid. duties
what are class gifts and is it vaid?
valid if reasonably definite
are future child or descenddants allowed?
only if ascertainable w/i perp. period (must apply RAP and if fails then invalid)
what is a merger?
if sole trustee is sole beneficiary then legal and equitable interests merge (trust terminates)
what are the exceptions to
charitable trust and honorary (trust for pet, maintenance of grave)
Is a writing required ?
in some cases, other law but not trust law requires a trust to be in writing
what is the statute of wills
requires a writng to make a valid will (testamentary trust (in will) = must always be in writing)
statute of frauds
requires a writing to transfer of an interest in real property
does an inter vivos trust of personal
