Trusts Flashcards
What are the execution requirements to create a valid trust?
- signed writing
- signed by settlor and trustee
- acknowledged before a notary public OR witnessed by two witnesses
What must settlor transfer to trustee to create a valid trust?
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
What must be true of trust property (res)?
Must be owned by settlor at the time of the transfer to trustee
What is the main distinction between a lifetime/inter vivos trust and a testamentary trust?
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
Who cannot be a trustee of a testamentary trust?
- under 18
- incompetent
- convicted felons
- incapable b/c of drunkenness, dishonesty, lack of understanding, or improvidence
Generally, what must be true of an identified beneficiary?
beneficiaries must be definite and ascertainable with no ambiguity (if ambiguous, trustee holds for residuary beneficiary)
What factors can render a trust unenforceable for a lack of intent?
- Precatory language (hopes, wishes, desires)
2. Trustee is given no duties
What is the main difference between charitable trusts and other types of trusts?
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
What is the Cy Pres Doctrine?
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
What is a constructive trust?
Equitable remedy designed to disgorge unjust enrichment that results from wrongful conduct
For joint bank accounts, what 2 showings must be made for survivorship language to be set aside?
C+C evidence that:
- survivorship was not intended when account was established, AND
- account was only opened as a matter of convenience to the depositor
What is Totten Trust?
Trust where settlor deposits money in a bank account with instructions that money should go to named beneficiary upon settlor’s death
What are the 4 ways to revoke a Totten Trust?
- withdraw all the money
- express revocation – in writing, notarized and delivered to bank
- revocation in a will
- beneficiaries death
What are the 3 key duties of a custodian under the Uniform Transfers to Minors Act (UTMA)?
- hold, manage, invest property as a prudent person
- pay minor part of property deemed advisable
- pay minor what is left of property when minor turns 21
Do transfers under the UTMA create trusts?
NO, title to property does not pass to a custodian like it does to a trustee