Express Trusts

Question 1

How do you create a private express trust?

Answer 1

1) manifest intent
2) specific trust property
3) one or more ascertainable beneficiaries
4) certain circumstances in writing

Question 2

What is the intent to create a private express trust?

Answer 2

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.

Question 3

Capacity for intent

Answer 3

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)).

Question 4

Purpose for intent

Answer 4

any purpose that is not illegal or contract to public policy

Question 5

Invalid trust

Answer 5

trust for illegal purpose, performance involves commission of tort or crim, contrary to public policy

Question 6

Precatory trust

Answer 6

Regulatory words not sufficient such as a wish or desire or hope to but not creating a legal obligation or affirmative duty.

Question 7

Precatory trust may show intent if

Answer 7

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

Question 8

Property

Answer 8

trust be funded w/ a valid interest in property, interest becomes trust or corpus, and delivery of valid interest in prop to trustee

Question 9

What is delivery of valid interest and property

Answer 9

actual, symbolic, or constructive

Question 10

what is actual delivery of a valid interest in property

Answer 10

Hand to hand delivery of the personal property

Question 11

what is symbolic delivery of valid interest in property

Answer 11

some item representing ownership including a written deed required for real property

Question 12

what is constructive delivery of valid interest and property?

Answer 12

Presenting the means to access the property such as giving trustee a key

Question 13

can a settlor transfer a valid presently existing interest and property

Answer 13

No, setler cannot have already transferred property

Question 14

What are prohibited interests?

Answer 14

illusory property
no mere expectancies (prospective)

Question 15

contract rights?

Answer 15

okay, such as life ins. policy,

Question 16

What is it pour-over will?

Answer 16

will that devises some of decedents estate to the then acting trustee of an inter vivos trust created during settlor’s lifetime

Question 17

UTATA … ?

Question 18

At common law

Answer 18

The quest to address required for the trust to be already funded

Question 19

UTATA

Answer 19

permits amendments to the trust even after the date of the will

Question 20

Property to trustee

Answer 20

trust must have a trustee who owes fiduciary duties to beneficiary

Question 21

Who does not have capacity to be a trustee of a trust

Answer 21

minors, mentally incapacitated, or incarcerated

Question 22

Are passive trusts permitted?

Answer 22

no, if trustee has no active duties then no trust comes into being

Question 23

What happens if there is a lack of trustee?

Answer 23

Court will appoint unless settlor intended otherwise. trust doesn’t fail even if no trustee.

Question 24

what are the elements for one or more ascertainable beneficiaries?

Answer 24

bene is the ascertainable person or group to or whose benefit trusts funds may be expended and who can sue to enforce fid. duties

Question 25

what are class gifts and is it vaid?

Answer 25

valid if reasonably definite

Question 26

are future child or descenddants allowed?

Answer 26

only if ascertainable w/i perp. period (must apply RAP and if fails then invalid)

Question 27

what is a merger?

Answer 27

if sole trustee is sole beneficiary then legal and equitable interests merge (trust terminates)

Question 28

what are the exceptions to

Answer 28

charitable trust and honorary (trust for pet, maintenance of grave)

Question 29

Is a writing required ?

Answer 29

in some cases, other law but not trust law requires a trust to be in writing

Question 30

what is the statute of wills

Answer 30

requires a writng to make a valid will (testamentary trust (in will) = must always be in writing)

Question 31

statute of frauds

Answer 31

requires a writing to transfer of an interest in real property

Question 32

does an inter vivos trust of personal