Trusts

Question 1

A trust of personal property is valid if it

has:

Answer 1

1. a trustee,
2. ascertainable and definite beneficiary, and
3. identifiable trust property.
4. Intent
5. purpose

Question 2

Presumption of Revocability

Answer 2

an inter vivos trust is revocable unless the instrument expressly states otherwise. An irrevocable trust can still be terminated or modified in some circumstances

Question 3

Termination by settlor

Answer 3

a settlor may terminate the trust if all beneficiaries are in existence and all agree to the termination.

Question 4

Termination by beneficiaries after settlor dies

Answer 4

Generally, even an irrevocable trust can be terminated
if:
1. both the income beneficiaries and the remaindermen unanimously consent and
2. if there is no material purpose of the trust yet to be performed.

Question 5

Pourover will

Answer 5

a will that makes a gift to a trust is valid so long as:

1. trust is identified in the will and
2. the terms are incorporated in a writing executed before or concurrently with the execution of the will.

.

Question 6

Pourer Will - Under the modern approach, later made amendments to the trust are:

Answer 6

valid.

Question 7

Pourer Will - under common law, amendments made after execution of the will are

Answer 7

not valid

Question 8

Discretionary Trust

Answer 8

The trustee has discretion to decide when to make a distribution to a beneficiary.

• The beneficiary cannot demand any part of the income or principle.
• Nor can a creditor, unless it shows the trustee acted dishonestly or in a state of mind “not contemplated” by the settlor. (There is an exception under the UTC for child support or alimony.)

Question 9

Support Trust

Answer 9

trustee must pay what is necessary for the beneficiary’s support.

Question 10

Spendthrift Trust

Answer 10

restrains “both the voluntary and involuntary transfer of a beneficiary’s interest.”

Question 11

Right of Creditor under a spendthrift trust

Answer 11

generally, a creditor may not reach (i.e., by garnishment or attachment)
part of a beneficiary’s distribution prior to the beneficiary reaching it.

Question 12

There are some favored creditors that are exceptions to this rule:

Answer 12

(1) a child or spousal support creditor (for maintenance and support),
(2) a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust (e.g., a lawyer),
(3) a claim of the state or United States (usually for taxes), and
(4) creditors with claims for necessaries in some states (this fourth category is not recognized in states that follow the UTC).

Question 13

Charitable Trust

Answer 13

a trust may be created for a charitable purpose (including for the relief of poverty, the advancement of education, the advancement of religion, the promotion of health, governmental or municipal purposes, or other purposes that are beneficial to the community).

-It must have a large number of not readily identifiable individuals (rather than a few identifiable individuals).

Question 14

Is a charitable trust subject to the common law against perpetuities

Answer 14

No

Question 15

Cypres

Answer 15

a charitable trust may terminate if the charitable purpose becomes unlawful, impracticable, or impossible. However, cy pres may save the trust.

if a particular charitable purpose has become unlawful, impracticable, or impossible to achieve; no
alternative charity is named in the trust; and the court finds that the settlor had general,
rather than specific, charitable intent, then the court may apply cy pres to modify or
terminate the trust by directing that the trust property be distributed in a manner
consistent with the settlor’s general charitable intent.

Question 16

The court may apply cy pres to modify or terminate the trust by directing that the trust property be distributed in a manner consistent with the settlor’s general charitable intent when:

Answer 16

1. if a particular charitable purpose has become unlawful, impracticable, or impossible to achieve and no alternative charity is named:
2. the court finds that the settlor had general, rather than specific, charitable intent.

Question 17

Honorary trust

Answer 17

This is a trust that does not have a charitable purpose or a definite beneficiary. It is often a trust to take care of a thing (e.g. cemetery plot) for a noncharitable purpose.

Under the UTC, this is valid but may not be enforced for more than 21 years. Under common law, such a trust would not be valid if it violates the rule against perpetuities, but a court may characterize the trust as a “power” and allow the trustee to exercise that power in accordance with the trust terms for 21 years.

Question 18

Duty of loyalty

Answer 18

a trustee has a duty of loyalty to act in the best interest of the beneficiaries.

Question 19

Duty of Care

Answer 19

Prudent Administration

Question 20

Prudent Investor Act

Answer 20

a trustee must administer the estate as prudent person would using care, skill and caution.

Question 21

How should a a trustee’s investment and management decisions with respect to individual assets be evaluated?

Answer 21

a trustee’s investment and management decisions with respect to individual assets should be evaluated in the context of the portfolio as a whole and as a part of an overall investment strategy rather than in isolation.

Question 22

Duty to Diversify

Answer 22

This is one of the hallmarks of prudent investing. The trustee is not liable for declines in value due to a downturn resulting from general economic conditions—but is liable for failure to diversify absent directions to the contrary.

Question 23

Remedies for Breach of Trust

Answer 23

1. Suspending or removing a trustee,
2. decreasing
3. compensation,
4. compelling a trustee to perform trust duties,
5. compelling payment of damages, etc. (There are several other remedies, including asking the court to “order any other appropriate relief.”) (

Question 24

Remedies in a Self Dealing Case.

Answer 24

the trust beneficiaries may rescind the transaction and ask for the self-dealing purchase to be set aside (the trust property is returned to the trust and the amount paid is refunded by the trust) or recover any profits the trustee made by reason of the breach.

Question 25

General Power of Appointment

Answer 25

the class of people that the beneficiary can exercise the power of appointment in favor of is unlimited (she can use it for herself, her creditors, or someone else).

Question 26

General Power of Appointment - Majority View

Answer 26

In most states, a general residuary clause in a will (“I give all of my estate . . . ”) does not exercise a power of appointment.

However, if the general residuary clause is coupled with a blanket exercise clause (e.g., “including all property over which I have a power of appointment”), any power of appointment held by the donee is exercised, unless the donor of the power specifically requires reference to it.

Question 27

General Power of Appointment - Minority View

Answer 27

a general testamentary power of appointment can be exercised by general
language in the beneficiary’s will (such as the residuary clause) even if it makes no reference to the power in the instrument (e.g., “Everything to my husband”—the husband will get it), unless the creating instrument of the power made an express gift in default or the instrument stated that the power needed to be specifically mentioned.

Question 28

Special (or limited) power of appointment

Answer 28

The class of people that the beneficiary can exercise the power in favor of is limited.

A special testamentary power needs to be specifically exercised.

The Uniform Probate Code (UPC) adopts a substantial compliance rule which says that if it could be shown that the power holder intended to exercise a power, a blanket exercise clause may be sufficient.

Question 29

Rule of convenience:

Answer 29

when a gift is made to a group, such as “my children,” the class closes when at least one member is entitled to distribution.

Question 30

Class Gifts - UPC approach

Answer 30

when a class gift is made, each living beneficiary will take their share and the deceased beneficiary’s share will pass to their surviving descendants. (If there are no surviving descendants then the gift will fail.)

Note: this applies even if the beneficiary is not related to the settlor (and thus differs from most antilapse statutes)

Question 31

Class Gift - Common Law

Answer 31

if the gift or remainder to a deceased beneficiary has already vested and there is no applicable statute, then it will go to whomever the instrument says it should go to or whomever the deceased person has specified in their will or through intestacy. (This also applies to gifts that are not made to classes.)