Trusts Flashcards
Who is a trustee and what title in property do they have? To whom do they owe duties?
A trustee is one to whom a grantor grants legal title to property. They owe fiduciary duties to beneficiaries.
Who is a beneficiary in Trust law? What do they enforce?
One who holds equitable/beneficial title to trust property.
- The benes enforce fiduciary duties.
What are the elements needed to establish a Trust’s validity?
(1) Capacity (2) Intent; (3) Identifiable Corpus (trust property); (4) Ascertainable/definite Beneficiaries (can’t have sole ttee be sole bene); (5) Proper Purpose; (6) Formalities and Mechanics.
- A trust will not fail for lack of a trustee.
When do trust beneficiaries need to be identified? May classes be used? What discretion may trustees be given in these circumstances?
Beneficiaries do not need to be identified at the time a trust is created, but must be susceptible of identification by the time their interests are to come to enjoyment.
Trust beneficiaries may be a class, so long as the class is sufficiently definite. In this case, the settlor can give the trustee discretion to select class members as long as the class is REASONABLY DEFINITE. If it is too broad, the trust will be invalid to the extent that this affects it.
What Intent is required for Trust formation?
Need:
- Intent to split legal and equitable title.
- Intent to impose enforceable duties on holder of legal title.
- A present intent to create a trust.
What formal words are required for the creation of a trust?
No formal words are required. You don’t even technically need to call it a trust.
Is a promise to create a trust in the future enforceable?
Unless there is a contract, it is not enforceable (need mutual assent and consideration).
What effect does precatory language have on trust creation?
Precatory language (expression of hope, wish, or suggestion) generally does not create a trust.
What are the rules for ascertainability of beneficiaries at the time of trust creation (EX: class gifts)?
Beneficiaries may be unascertainable when the trust is created but must be ascertainable when the property is to be distributed.
For what purpose(s) may a trust be created?
A trust may be created for any purpose that is not illegal or against public policy.
What is a declaration of trust?
The creation of an inter vivos trust in which the settlor and the trustee are the same person.
What is a Transfer/Conveyance in Trust?
The creation of an inter vivos trust in which the settlor transfers legal title to someone else.
What is a Secret Trust?
The settlor agrees with Will beneficiary that the beneficiary will hold property in trust for someone else.
- The Will does not state the trust nature of gift.
- Courts allow trust benes to present extrinsic evidence and seek a constructive trust remedy.
What is a Semi-Secret Trust?
A Will makes a gift in trust but fails to state the beneficiary.
- This will not create a trust because there is no ascertainable beneficiary.
What are Discretionary Trusts? What does this mean for creditors?
A trustee can determine how much the beneficiary receives.
The beneficiary has nothing to transfer until the trustee decides to distribute something, so there is nothing for the creditors to reach (exceptions for child and spousal support).
What is a Spendthrift Provision?
A provision that makes it so that a beneficiary cannot transfer an interest in the trust (exception for children and spousal support).
- Trustee can pay for things directly.
- Creditors cannot attach to the beneficiary’s interest.
Can a settlor protect their own property from their own creditors with a spendthrift trust (self-settled trusts)?
Generally no, but some states allow for this.
What are Support Trusts?
The use of the trust property is limited to the beneficiary’s support.
- May be mandatory or discretionary.
- Impliedly spendthrift.
What level of support is presumed with a Support Trust when the instrument does not specify this?
It will be the lifestyle to which the beneficiary is accustomed.
Is a silent trust presumed to be revocable or irrevocable??
Under modern law, a settlor may modify or revoke a trust for any reason unless the trust instrument expressly states that it’s irrevocable.
What power do the beneficiaries have to modify a trust?
- When benes and settlor agree, modification is permitted.
- Benes may modify without settlor consent if (1) all beneficiaries agree and (2) the changed would not upset a material purpose of the trust.