Trusts Flashcards

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1
Q

What are the execution requirements to create a valid trust?

A
  1. signed writing
  2. signed by settlor and trustee
  3. acknowledged before a notary public OR witnessed by two witnesses
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2
Q

What must settlor transfer to trustee to create a valid trust?

A

Must deliver legal title to the res (property) to the trustee for the benefit of named beneficiaries with intent to create a trust with legal purpose

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3
Q

What must be true of trust property (res)?

A

Must be owned by settlor at the time of the transfer to trustee

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4
Q

What is the main distinction between a lifetime/inter vivos trust and a testamentary trust?

A

Lifetime: created during settlor’s lifetime, no court is involved in it creation

Testamentary: created by will at settlor’s death, arise in probate proceedings in court

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5
Q

Who cannot be a trustee of a testamentary trust?

A
  1. under 18
  2. incompetent
  3. convicted felons
  4. incapable b/c of drunkenness, dishonesty, lack of understanding, or improvidence
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6
Q

Generally, what must be true of an identified beneficiary?

A

beneficiaries must be definite and ascertainable with no ambiguity (if ambiguous, trustee holds for residuary beneficiary)

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7
Q

What factors can render a trust unenforceable for a lack of intent?

A
  1. Precatory language (hopes, wishes, desires)

2. Trustee is given no duties

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8
Q

What is the main difference between charitable trusts and other types of trusts?

A

Charitable trusts cannot have ascertained members/beneficiaries and are established for charitable purpose (education, relief of poverty, religion etc.)
R.A.P. does not apply

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9
Q

What is the Cy Pres Doctrine?

A

If circumstances have changed making a trust’s directions impracticable (or has been accomplished ) court may redirect benefit in a manner that serves testator/settlor’s charitable intent

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10
Q

What is a constructive trust?

A

Equitable remedy designed to disgorge unjust enrichment that results from wrongful conduct

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11
Q

For joint bank accounts, what 2 showings must be made for survivorship language to be set aside?

A

C+C evidence that:

  1. survivorship was not intended when account was established, AND
  2. account was only opened as a matter of convenience to the depositor
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12
Q

What is Totten Trust?

A

Trust where settlor deposits money in a bank account with instructions that money should go to named beneficiary upon settlor’s death

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13
Q

What are the 4 ways to revoke a Totten Trust?

A
  1. withdraw all the money
  2. express revocation – in writing, notarized and delivered to bank
  3. revocation in a will
  4. beneficiaries death
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14
Q

What are the 3 key duties of a custodian under the Uniform Transfers to Minors Act (UTMA)?

A
  1. hold, manage, invest property as a prudent person
  2. pay minor part of property deemed advisable
  3. pay minor what is left of property when minor turns 21
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15
Q

Do transfers under the UTMA create trusts?

A

NO, title to property does not pass to a custodian like it does to a trustee

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16
Q

What kinds of interests/benefits can pour over into lifetime and testamentary trusts?

A
  1. life insurance proceeds
  2. savings accounts
  3. pension benefits
17
Q

What is the general rule regarding the alienability of trust interests?

A

Interest in income or principal may be voluntarily assigned and may be subject to claims of a beneficiaries judgment creditors

18
Q

What is a Spendthrift Provision?

A

prohibits a beneficiary from transferring their trust interest and makes trust funds unreachable to creditors

19
Q

What does that power of invasion grant a trustee?

A

Trustee can invade the trust principal for the living beneficiary’s support – generally the trust document must grant this power

20
Q

When can a trust be amended/modified?

A

ONLY when the objectives of the trust would be defeated or substantially impaired if the trust is not modified.
**may be modified by trustee or beneficiary

21
Q

What are main factors a trustee must consider when investing on behalf of the trust?

A
  1. consider the role each investment plays within overall trust portfolio
  2. consider expected total return from income and capital gain
22
Q

What are the 5 prohibitions under the trustee’s general duty to refrain from self-dealing?

A

Trustee CANNOT:

  1. buy or sell trusts assets to himself
  2. borrow trust funds from trust
  3. lend money to trust
  4. profit from serving as trustee (aside from appropriate trustee fees) – cant take advantage of confidential info
  5. corp. trustee cannot by corps stock as trust investment
23
Q

What are the remedies for a breach of trustee fiduciary responsibilities?

A
  1. sue for removal of trustee
  2. sue for any losses
    * *can also ratify/waive breach (acquiesce)
24
Q

When can a 3rd party NOT be sued by a beneficiary due to a prohibited transaction by a trustee?

A

When the 3rd party is a bona fide purchaser for value without notice

25
Q

When will a 3rd party purchaser NOT qualify as a Bona Fide purchaser?

A

When 3rd party purchaser:

  1. knows they are dealing with a self-dealing trustee
  2. is a relative of the trustee
  3. is a business in which the trustee is involved
26
Q

When will a trustee have personal liability for contracts or torts?

A

When the trustee signs personally and merely mentions the trust
**vice versa is true – if trustee signs on behalf of the trust no personal liability attaches

27
Q

What happens if a trustee uses commingled funds to purchase a trust asset?

A

If the asset decreases in value the trustee must account (pay) for all losses, if the asset increases in value the trustee must pay all profits to the trust