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Nicole's VA Cards > Trusts > Flashcards

Trusts Flashcards

1
Q

What are the (6) requirements for a valid trust?

A
  1. Settlor
  2. Property
  3. One or more Trustees (court can appoint)
  4. Intent to create trust
  5. Legitimate purpose

For a “private trust” (not charitable or honorary) must also be 6. definite and ascertainable beneficiaries

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2
Q

What are the requirements for the settlor?

A
  1. Legal capacity - i.e., age 18 or older
  2. Proper capacity - i.e., competency (but if gives power of attorney other person can make trust if settlor is incompetent)
  3. Ability to convey title
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3
Q

What are the requirements for trust property?

A

Traditional view:

  1. Property must be certain and ascertainable
  2. Legal title must be fully conveyed to trustee

Now: allows for UNFUNDED trusts where settlor directs future transfer of property rights

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4
Q

What are the requirements for the trustee?

A
  1. Legal capacity to exercise fiduciary duties:
    • Age 18 or older
    • Capacity to take and hold legal title
    • Capacity to contract and execute deeds
  2. ​Acceptance
    • ​​Done by either:
      • ​Written signature
      • Conduct (i.e., performing duties of trust)
        • But not merely inspecting property for potential environmental law liability
    • Commences responsibilities of trustee
  3. Bond
  • Req. for individual only if court finds needed to protect beneficiaries
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5
Q

What is a testamentary trustee?

What are the limits on serving as one?

A

Definition

  • Trustee appointed under a will

Limits

  • Non-resident bank cannot serve as one
  • Non-resident individual can serve as one, but must appoint Virginia resident as agent for service of process
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6
Q

What happens if a will establishes a trust, but does not name a trustee?

A

No trust fails for lack of a trustee, unless the settlor clearly stated that only one person could be trustee and that person is not available

Otherwise, the court will appoint a suitable trustee

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7
Q

What is required for intent to create a trust?

A

Settlor must attach enforceable duties that can be supervised as to the transfer of the property

Otherwise, it was just a gift to the purported trustee

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8
Q

What are the requirements for beneficiaries?

A

Depends on type of trust:

  1. Private trust
    • Must have definite and ascertainable beneficiaries
    • Interests must vest within the period of RAP
  2. Charitable trust
    • Must have indefinite group of beneficiaries
    • Must have a charitable purpose
    • Not subject to RAP
  3. Honorary trust
    • Must have beneficiaries that cannot complain
    • May be pets and cemeteries
    • Not subject to RAP
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9
Q

What is the effect of RAP in Virginia?

A

Common law rule:

  • If at the creation of any interest, there is a possibility that it will not vest within a life in being plus 21 years

Virginia’s adoption of USRAP

  • The court may wait and see what actually occurs after 90 years from creation of the interest- If at that point the interest still violates RAP, the court fixes it so it is vested
  • Allows court to reform to eliminate RAP problem
  • RAP doesn’t apply if trust instrument’s terms provides it shall not apply
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10
Q

What is the process for applying RAP in Virginia?

A
  1. Determine if interet violates common law RAP
    • Kill off all lives in being
    • After 21 years, could the interest still vest?
  2. If no common law RAP violation, interest is valid
  3. If common law RAP violation, wait 90 years
  4. If interest could still vest, fix it so it vests then
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11
Q

What do you say if you think there is a RAP problem, but you are not confident?

A

There is no perpetuities problem. Virginia has enacted the Uniform Statutory Rule Against Perpetuities, which provides an alternate vesting period of 90 years.

All interests created by this will are almost certain to vest or terminate within 90 years after their creation, and therefore will likely be valid despite the common law RAP.

Even if the interests have neither vested nor terminated at the end of the 90 year period, USRAP requires the courts to fix the problem so that the interests do vest at that point.

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12
Q

What is required for a trust to have a lawful purpose?

A

Trust cannot:

  1. Further commission of a crime
  2. Call for destruction of property
  3. Impose unreasonable conditions
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13
Q

What constitutes an unreasonable condition of a trust?

What is not unreasonable?

A

Unreasonable

  • Trust encourages divorce
    • E.g., income to Betty, but also principal if she divorces

Reasonable

  • Trust provides money until person remarries
    • E.g., income to Betty until she remarries
  • Trust encourages beneficiary to marry Jewish boy
    • E.g., income to Betty if she marries a Jewish boy
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14
Q

What is an oral trust?

A

A trust of either personal or real property, the terms of which can be proven by clear and convincing evidence

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15
Q

What are examples of non-probate devices?

A
  1. Intervivos trust
  2. Joint tenancy
  3. Joint accounts
  4. Payable on death accounts
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16
Q

What is the distinguishing characteristic of an intervivos trust?

A

It is created during the lifetime of the settlor

This is what makes it an effective non-probate transfer vehicle

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17
Q

Are intervivos trusts revocable?

A

Yes. All inter vivos trusts are presumed revocable if:

  • Created on or after July 1, 2006
  • Not expressly made irrevocable by settlor

This is a reversal of the common law rule, and a result of Virginia’s adoption of the UTC

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18
Q

Who can revoke a trust?

A
  • Settlor
  • Conservator, guardian, or agent only if either:
    • Expressly authorized by trust
    • Authorized by court for good cause
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19
Q

What is a pour over arrangement?

A

Either:

  • Pour over will
    • Non-probate vehicle pours over assets into a will
  • Pour over trust
    • Will pours over assets in an intervivos trust
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20
Q

What is a self-declaration of trust?

A

Settlor makes himself both the trustee and beneficiary

But adds a remainder beneficiary

And a successor trustee, who takes over in the event of settlor’s incapacity or death

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21
Q

What is the statue of limitations for contesting a revocable trust?

A

The earlier of:

  1. Two years after settlor’s death
  2. Six months after trustee sent person commencing action:
    • Copy of trust instrument
    • Trustee’s name and address
    • Notice of time allowed for contesting trust
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22
Q

When a trust is contested, can the trustee be subject to liability for distributing assets in according with the trust?

A

Only if trustee distributes assets while either:

  1. Trustee knows of a pending judicial proceeding contesting the trust
  2. Trustee has received notice of a possible judicial proceeding that actually commences within 60 days after the notice was sent
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23
Q

What happens if a beneficiary of a trust is determined to have been invalid after receiving assets?

A

Person must return any distribution received, but they have no further liability

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24
Q

What is a power of attorney?

What makes one durable?

What is a springing power of attorney?

When does a power of attorney terminate?

A

Definition

  • Authorizes another person (i.e., agent) to act on behalf of the principal

Durable

  • States that the power of attorney is not affected by the principal’s incapacity or disability

Springing

  • States that the power of attorney becomes effective upon the principal’s incapacity or disability

Termination

  • Upon principal’s death
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25
Q

Who enforces the terms of a charitable trust?

A

Settlor, if alive, otherwise attorney general of the state

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26
Q

What happens when the stated charitable purpose of a charitable trust can no longer be accomplished?

A

May be reformed under doctrine of cy pres

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27
Q

What are restrictions on honorary trusts for pets?

A

Only animals alive during the settlor’s life can be beneficiaries (i.e., trust terminates on death of animal)

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28
Q

What is a constructive trust?

What is required to create one?

A

Definition

  • Not really a trust - equitable device meant to remedy a bad act

Elements

  1. Wrongful conduct
  2. Unjust enrichment
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29
Q

What is a resulting trust?

A

Similar to a constructive trust in that it does not require the formalities of a normal trust

When the purpose of a trust cannot be achieved, the money “results back” to the settlor

Purchase money resulting trust (PMRT)

  • If A purchases land and title is put in B’s name (not a relative) for no reason, there is a presumption that B holds the property in a resulting trust for A
  • Presumption must be rebutted by clear and convincing evidence that the purchase was a gift for B
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30
Q

What is a spendthrift trust?

Are they enforceable?

A

Trust that restricts the ability of creditors to reach the trust assets

Enforceable unless violates public policy:

  1. Child support obligations
  2. Fees to lawyer who protected beneficiary’s interest
  3. Claims by government
  4. Mandatory distributions not made by trustee
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31
Q

What is it called when a settlor places his assets in a spendthrift trust but retains the right to receive future payments at the trustee’s discretion?

A

Qualified self-settled spendthrift trust, or asset protection trust

32
Q

What are the requirements for a qualified self-settled spendthrift trust in Virginia?

A
  1. Irrevocable Trust
  2. Spendthrift clause
  3. Transfer of assets to trust must not make settlor insolvent
  4. Additional beneficiary other than settlor when distributions made to settlor
  5. Settlor cannot disapprove of distributions
33
Q

When can the settlor of a qualified self-settled spendthrift trust challenge a trustee’s refusal to distribute?

A

Only if clear terms that trigger distribution have been met (e.g., amount needed for financial support)

34
Q

What is the trustee’s obligation?

A

Act for benefit of beneficiaries, unless beneficiaries provide consent after complete and full disclosure

No self-dealing:

  • Buying or selling trust assets to himself
  • Borrowing trust funds
  • Loaning funds to the trust
  • Profit from serving as trustee via confidential info
  • Buy stock of corporation if corporate trustee
35
Q

Do trustee beneficiaries have an action against third parties involved in self-dealing with the trustee?

A

Not if they are bona fide purchasers, which does not include parties that are either:

  • Aware of the self-dealing
  • Related to the trustee
36
Q

What is the statute of limitations for an action against the trustee?

A

Under accounting

  • One year from when
    • Trustee gives beneficiary report (accounting) that:
      • Discloses facts that show existence of breach
      • Informs beneficiary of time to bring action

Under termination

  • Five years from the earlier of:
    • Trustee’s removal, resignation, or death
    • Termination of beneficiary’s interest
    • Termination of trust
37
Q

Can the settlor waive the trustee’s obligations?

A

Yes, after complete and full disclosure, unless:

  1. Waiver of legal purpose requirement
  2. Waiver of trustee’s obligation to act in good faith
  3. Waiver of trustee’s obligation to not intentionally or recklessly act contrary to beneficiary interests
  4. Waiver of statute of limitations to bring action
  5. Waiver of court’s power to modify trust, remove trustee, require fiduciary bond, or deny trustee compensation
38
Q

What are the specific duties of the trustee?

A
  1. Act prudently
  2. Be impartial in relationship to beneficiaries
  3. Control and protect trust property
  4. Collect trust property and defend claims
  5. Segregate trust property from own
  6. Keep adequate records
  7. Keep beneficiaries reasonably informed
  8. Furnish copy of trust instrument on request
  9. 60-day notice provision
  10. Annual reports
39
Q

What is the trustee’s obligation with respect to the 60-day notice provision?

A

After the trustee accepts, he must notify beneficiaries of:

  1. Trust’s existence
  2. Trust’s settlor(s)
  3. Beneficiaries’ rights to request copy of trust
  4. Beneficiaries’ rights to annual report
  5. Trustee’s name, address, phone, and e-mail
40
Q

What is a trust protector?

A

Someone other than the corporate trustee who makes sensitive personal decisions regarding the trust

41
Q

How can a corporate trustee avoid a fiduciary duty breach from following the trust protector’s directions?

A
  1. Have settlor incorporate Virginia trust protector provisions in the trust instrument
  2. Avoid instances of willful misconduct or gross negligence in following trust protector’s instructions
42
Q

What are a trustee’s powers?

A

Virginia’s trust code expressly a uthorizes a trustee to do whatever the fee simple owner of the property could do, so long as:

  • No self dealing
  • Settlor doesn’t say otherwise
43
Q

What is a trustee’s responsibility with regard to prudent investing?

A

Virginia has adopted the Uniform Prudent Investor Act (UPIA) which utilizes a portfolio theory of investing (i.e., so long as the investment fits the portfolio, it is prudent - do not look at the investment individually)

44
Q

What is a trustee’s responsibility with regard to prudent investments when the trustee was selected based on his skills?

A

Trustee will be held to that level of expertise in evaluating his prudence

45
Q

Under UPIA, how are investment returns measured?

A

Total return, including income, but also:

  • Growth
  • Capital gains
46
Q

What is the trustee’s responsibility with regard to allocating income between income and remaindermen beneficiaries?

A

Trustee must act impartially between the two by either:

  1. Adjustment powers
  2. Unitrusts
47
Q

How does a trustee exercise his adjustment power?

A

Trustee distributes income to the income beneficiary, but also some of the capital gains to promote fairness

Rule of thumb - 10% of capital gains can be allocated

48
Q

How should the trustee distribute the followingexpenses between income and principal beneficiaries:

  • Trustee’s fees
  • Ordinary expenses
  • Capital expenses
A

Trustee’s fees

  • Half and half

Ordinary expenses

  • Income beneficiary

Capital expenses

  • Principal beneficiary
49
Q

What is a unitrust?

A

Allows trustee to avoid having to allocate between income and remainder beneficiaries

Instead, income beneficiary gets between 3% and 4% of FMV of trust, remainder beneficiary gets everything else, regardless of amount of income generated

50
Q

Who can the trustee delegate powers to?

Is the trustee liable for delgatee’s actions?

A

Can delegate powers, including investment power, to agent

No liable for delegatee’s actions so long as trustee exercised reasonable care in:

  1. Selecting agent
  2. Establishing terms of delegation
  3. Reviewing agent’s decisions
51
Q

Is a trustee liable on contracts entered into as trustee?

A

No, so long as trustee:

  1. Acted in fiduciary capacity
  2. Disclosed fiduciary capacity
  3. Contract does not say otherwise
52
Q

Is a trustee liable for torts committed as trustee?

A

Yes, so long as trustee is personally at fault

53
Q

Does a co-trustee have liability for actions taken by other trustees?

A

No, so long as the co-trustee:

  • Dissented
  • Did not join in the action
  • Notified other trustees
54
Q

How many co-trustees have to agree on a decision for it to be ratified?

A

Majority

55
Q

Can an irrevocable trust ever be modified or terminated while settlor is alive?

A

Yes, if the settlor and all the beneficiaries consent and the court does the modification or termination

Even if the living settlor does not agree, the court may allow modification or termination

56
Q

Can an irrevocable trust ever be modified or terminated after the settlor dies?

A

Yes, provided that:

  1. All beneficiaries consent
    • Modification or termination is not inconsistent with purpose of trust
  2. Not all beneficiaries consent
    • Court is satisfied that:
      • Trust could be modified if all consented
      • Interests of beneficiaries not consenting (e.g., unborn child) will be protected
57
Q

When can a court modify or terminate a trust without all beneficiaries’ consent?

A
  1. Unanticipated circumstances
    • Modification or termination will further purpose of trust based on unanticipated circumstances
  2. Tax advantages
    • Modification or termination will achieve settlor’s tax objectives
  3. Purposes
    • Either:
      • No trust purpose remains to be achieved
      • Purposes of trust are now unlawful, contrary to public policy, or impossible to achieve
  4. Uneconomic
    • If value of trust is < $10,000, trustee may petition for termination if administrative costs are too much to justify continuance
58
Q

Can a trustee ever combine or divide trusts?

A

Yes, without court approval, so long as it does not frustrate the purposes of the trusts (e.g., to gain more investment ability)

59
Q

Can a court reform the terms of a trust even if the terms are unambiguous?

A

Yes, if proved by clear and convincing evidence that the settlor’s intent and the trust terms were affected by a mistake of fact or law

E.g., allow sale of house despite trust restriction so that wife can get a new house in a more suitable zoning district

60
Q

Definition of Trust

A

Legal device whereby one individual or entity, a trustee, holds legal title to certain property and manages it for the benefit of named beneficiaries

61
Q

Model Answer to RAP

A

“Under the common law rule, the contingent remainder to X would have been void because it might vest too remotely. Specifically, after X’s death, X could happen. More than 21 years later, X… would vest. If it did happen this way, the remainder in X would remain unvested and unterminated byond lives in being plus 21 years.”

“However, VA has eneacted the Uniform Statutory RAP. Under USRAP, such an interest is valid so long as it actually vests or terminates within 90 years after the interest’s creation. Even though X might happen, X are certain to either reach X or die 90 years after X’s death. Therefore, the remainder given to X is likely to be valid under Uniform Rule. Even if it does not, VA’s reformation statute would enable a court to amend trust to make all interests valid.”

62
Q

What are the rules for undue influence and fraud in a trust?

A

Same for Wills

63
Q

What is a testamentary trust?

A

Created by a will where parents execute will when children are still minors. Want large portion of estate to go to kids but in trust if die when kids are below certain age. Then, and if only then, a person named trustee in will would take legal title as trustee for benefit of kids

(or for mentally disabled offspring, spouse with dimentia, pets, burial lot)

64
Q

Unique feature of Charitable Trusts

A
  1. No RAP (perpetual)
  2. Charitable purpose
  3. In favor of indefinte # of beneificiaries at large (no private individuals
  4. Enforcement in attorneygeneral or settlor if alive
  5. when purpose can’t be accomplished, may be reformed by cy pres
65
Q

If particular charitable purpose becomes unlawful, impracticable, impossible, or wasteful:

A
  1. trust does not fail in whole or part
  2. trust property does not revert to settlor or settlor’s successors in interest; and
  3. court may apply cy pres to modify
66
Q

Can trusts be used or be set up in such way to keep money from creditors?

A

Creditors of settlor= generally no

Creditors of beneficiaries= maybe with spendthrift provision

67
Q

Model Answer for powers/duties of trustees

A

“VA’s trust code, which applies to all trusts in VA except to the extent the trustee’s powers are expanded or limited byt he settlor, gives broad powers to trustee. Specifically, Trust Code authroizes trustee to [do whatever the question involves]

“However, trustees are subject to many duties to which a fee simple owner is not, and actions above might violate one of these duties.” list and explain duties

68
Q

Exceptions to law that permits settlor to release trustee from liability for all breaches of normal fiduciary duties

A

bad faith OR reckless indifference to purposes of trust or interests of beneficiaries

69
Q

VA Uniform Prudent Investor Act

A

It utilizes a portfolio tehory of diversified investments, under which each element of plan for large trust is evaluated fro prudence not individually but in reference to entire portfolio (and evaluated in light of circumstances AT time of investment)

70
Q

Rules of UPIA

A
  1. Prudence (prudent person standard- shall exercise reasonable care, skill and caution)
  2. Legal List of Prudent Investments- certain assets VA regards as always prudent (VA bonds and obligations); not restricted to these
  3. Skills- if trustee is chosen because special skill or expertise, trustee will be held to that level
71
Q

UPIA- trustees must develop and follow custom-tailored investment strategy for each trust, taking into account factors like:

A
  • general economic conditions (inflation/deflation)
  • expected tax consequences
  • role investment plays overall
  • expected TOTAL RETURN from income and capital gain
  • needs for liquidity
  • an asset’s special relationship to purposes of trust or beneficiary
  • any differing interests of income beneficiaries and remainderpersons
72
Q

Is a revocable trust modifiable or terminable?

A

Yes by settlor at any time

73
Q

Is an irrevocable trust modifiable or terminable?

A

with settlor and all beneficiaires consent

Court can order it even if modification or termination is inconsistent with material purpose of trust

74
Q

In 2018, General assembly adopted bills that extend to trusts certain rules of wills- what are 3 Ds?

A
  1. Divorce- if either party files dissolution and has created revocable trust naming other trustee or power of A, filing automatically revokes trust provision
  2. Death- antilapse applies to trusts
  3. Disappearance of Property- ademption
75
Q

What is an alternative to a trust?

A

Power of attorney to manage

Nicole's VA Cards (16 decks)

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