Trust formalities

Question 1

In order for a trust to survive a challenge to its validity, it must have:

Answer 1

(1) met the substantive elements for an express trust (res, intent, trustee/duties, def ben, and purpose) and
(2) been executed with the requisite trust formalities

Question 2

§ 732.502 imposes four requirements for a validly executed will:

Answer 2

(1) the settlor/testator must sign the will at the end;
(2) the settlor/testator must sign (or acknowledge his signature) in the presence of at least two attesting witnesses;
(3) at least two witnesses must attest to the settlor/testator’s signature or the settlor/testator’s acknowledgement of his signature; and
(4) the attesting witnesses must sign in the presence of the settlor/testator and each other

Question 3

Testamentary trust formalities

Answer 3

A trust created as part of a will must comply with the state’s requirements for proper execution of a will

Question 4

Inter Vivos Trust formalities

Answer 4

Most states require inter vivos trusts of real property to comply with their statute of frauds for trusts; thus, such trusts must be in writing

By contrast, in most states an inter vivos trust consisting of personal property need not comply with any formalities

Substantive elements MUST be met

Question 5

Statute of Frauds requires:

Answer 5

1. Writing, signed by party to be bound
2. Manifest Trust Intent
3. Reasonably identify: property, beneficiaries, and purposes

Question 6

Hereditament

Answer 6

any kind of property that can be inherited.

Question 7

Tenement

Answer 7

a piece of land held by an owner.

Question 8

Messuage

Answer 8

a dwelling house with outbuildings and land assigned to its use

Question 9

Testamentary aspects

Answer 9

Signed Testamentary aspects MUST be executed like will

Test. Aspect defined: “those provisions of the trust instrument that dispose of the trust property on or after the death of the settlor other than to the settlor’s estate” § 736.0403(2)(b)

IF interest created in beneficiary before death of testator – NOT testamentary

Question 10

A constructive trust may be imposed to prevent unjust enrichment if the transfer was made under:

Answer 10

1. Fraud or duress
2. Contemplation of death
3. Confidential relationship

Question 11

Formalities for testamentary aspects of revocable trusts

Answer 11

ALL revocable trusts (whether real or personal property) executed by a Florida domiciliary must comply with the formalities of a will

Question 12

If trust = orally created, MUST be proved by

Answer 12

clear and convincing parol evidence