Trusts

Question 1

Trust (defined)

Answer 1

fiduciary relationship b/w trustee and beneficiary

Question 2

types of trusts

Answer 2

express (private or charitable) or resulting (presumed intention) or constructive (equitable remedy)

Question 3

what law governs express trusts

Answer 3

the Florida Trust Code (FTC)

Question 4

6 elements of a private trust

Answer 4

1) settlor must have capacity to convey
2) present intent
3) trustee
4) beneficiary
5) specific property (res)
6) valid trust purpose

Question 5

capacity

Answer 5

same as a will

trust void for lack of capacity if undue influence, fraud, duress

Question 6

present intent

Answer 6

oral, writing, conduct while settlor owned property that was delivered with intent to take immediate effect and no precatory language

Question 7

precatory language

Answer 7

wishes, hopes, desires

Question 8

trustee requirements

Answer 8

must be 18, competent and capacity to enter into a K

settlor must intend to impose enforceable duties

Question 9

lack of trustee

Answer 9

no trust fails for lack of trustee, court will appoint

Question 10

removal of trustee

Answer 10

court will remove if detrimental to trust administration for breach of trust, lack of co-trustee cooperation, unfitness/unwillingness/persistent failure to administer, substantial change in circumstances os that removal is in the best interest of all beneficiaries

Question 11

resignation of trustee

Answer 11

once trustee accepts, must give 30 days notice to settlor, beneficiary, co-trustee or get court approval

Question 12

trustee as settlor?

Answer 12

that is okay

but, sole trustee cannot be sole beneficiary

Question 13

trustee’s creditors

Answer 13

cannot touch trust assets

Question 14

trustee fee

Answer 14

entitled to reasonable fee and reimbursement for expenses

Question 15

beneficiary

Answer 15

must be definite and ascertainable

Question 16

beneficiary acceptance

Answer 16

presumed to accept unless affirmatively disclaim

Question 17

trust fails for lack of beneficiary

Answer 17

then a resulting trust in favor of the settlor is presumed

Question 18

no res

Answer 18

no trust

Question 19

res = future interests

Answer 19

okay if existing contract

Question 20

SOF application

Answer 20

applies to real property, so, if not in writing, use a constructive trust

Question 21

oral trust for personal property

Answer 21

valid if established by clear and convincing evidence

Question 22

valid trust purpose

Answer 22

a trust is invalid if its purpose is illegal, contrary to public policy, impossible to achieve, or intended to defraud settlor’s creditors or based on illegal consideration

Question 23

if illegal condition subsequent

Answer 23

condition invalidated, but trust remains valid

Question 24

if illegal condition precedent

Answer 24

hold interest valid unless evidence of settlor’s desire to void entire interest if unenforceable

Question 25

RAP

Answer 25

FL has adopted a 360 year vesting period

Question 26

non-vested property

Answer 26

valid if: when the interest created is certain to vest or terminate within the common law period of 21 years after the death of a life in being or it actually vests within 360 years

Question 27

creation of express trusts

Answer 27

created by inter vivos trust (living will) or testamentary trust (will)

Question 28

inter vivos transfer or declaration

Answer 28

present intent manifested by conduct, delivery or naming self as trustee when trust property exists

Question 29

testamentary trusts

Answer 29

must be ascertained from the will itself, incorporated by reference to will, have independent legal significance, or from the exercise of a power of appointment created by the will

Question 30

what must testamentary trust comply with

Answer 30

statute of wills

Question 31

secret trust

Answer 31

constructive trust imposed for intended beneficiary if absolute gift made in will relied on beneficiary’s promise to hold property for another (extrinsic evidence admitted)

Question 32

semi-secret trust

Answer 32

trustee holds resulting trust for settlor’s heirs where gift in will “in trust” but no beneficiary named (no ex. ev. permitted)

Question 33

charitable trusts

Answer 33

substantial benefit to society so special exemptions from private trust rules: liberally construed

Question 34

charitable trusts elements

Answer 34

must have indefinite beneficiaries, may be perpetual, cy pres doctrine applies

Question 35

charitable purpose

Answer 35

must benefit the public

Question 36

unascertainable beneficiaries

Answer 36

courts consider the community at large and a particular individual eligible for benefits has no standing to enforce the terms. enforcement is placed upon the state AG.