Trusts Flashcards
Trust (defined)
fiduciary relationship b/w trustee and beneficiary
types of trusts
express (private or charitable) or resulting (presumed intention) or constructive (equitable remedy)
what law governs express trusts
the Florida Trust Code (FTC)
6 elements of a private trust
1) settlor must have capacity to convey
2) present intent
3) trustee
4) beneficiary
5) specific property (res)
6) valid trust purpose
capacity
same as a will
trust void for lack of capacity if undue influence, fraud, duress
present intent
oral, writing, conduct while settlor owned property that was delivered with intent to take immediate effect and no precatory language
precatory language
wishes, hopes, desires
trustee requirements
must be 18, competent and capacity to enter into a K
settlor must intend to impose enforceable duties
lack of trustee
no trust fails for lack of trustee, court will appoint
removal of trustee
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
resignation of trustee
once trustee accepts, must give 30 days notice to settlor, beneficiary, co-trustee or get court approval
trustee as settlor?
that is okay
but, sole trustee cannot be sole beneficiary
trustee’s creditors
cannot touch trust assets
trustee fee
entitled to reasonable fee and reimbursement for expenses
beneficiary
must be definite and ascertainable
beneficiary acceptance
presumed to accept unless affirmatively disclaim
trust fails for lack of beneficiary
then a resulting trust in favor of the settlor is presumed
no res
no trust
res = future interests
okay if existing contract
SOF application
applies to real property, so, if not in writing, use a constructive trust
oral trust for personal property
valid if established by clear and convincing evidence
valid trust purpose
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
if illegal condition subsequent
condition invalidated, but trust remains valid
if illegal condition precedent
hold interest valid unless evidence of settlor’s desire to void entire interest if unenforceable
RAP
FL has adopted a 360 year vesting period
non-vested property
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
creation of express trusts
created by inter vivos trust (living will) or testamentary trust (will)
inter vivos transfer or declaration
present intent manifested by conduct, delivery or naming self as trustee when trust property exists
testamentary trusts
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
what must testamentary trust comply with
statute of wills
secret trust
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)
semi-secret trust
trustee holds resulting trust for settlor’s heirs where gift in will “in trust” but no beneficiary named (no ex. ev. permitted)
charitable trusts
substantial benefit to society so special exemptions from private trust rules: liberally construed
charitable trusts elements
must have indefinite beneficiaries, may be perpetual, cy pres doctrine applies
charitable purpose
must benefit the public
unascertainable beneficiaries
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.
