De Trusts 2006

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Inter Vivos Trust

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may be oral or written; trustor may make a “declaration of trust” either by making a verbal declaration that he is holding property in trust, or by establishing a written trust (more common). Trustor may also transfer property expressly indicating that the recipient is to hold it in a fiduciary capacity; if this method is used to create a trust, property must be retitled in trustee’s name to create the trust. Oral Trust – at common law could be created by declaration of trust, in which settlor, w/ intent to create trust, declares himels trustee of the property, thereby retaining legal title as trustee but assuming fiduciary duties toward the benny. No requirement that the property be delivered to another. Distinguished from a gift which requires intent and delivery. Written Trust – required by DE law – written doc specifying trustee designation, terms of distribution, and fiduciary powers and duties

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Testamentary Trust

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created by T in his will to take effect at his death. must satisfy requirements of the statute of wills.

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Resulting Trust

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arises from the presumed intent of Trustor to create a trust. Will be found by Chancery if it finds that creation of the trust effectuates intent of trustor.

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Constructive Trust

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flexible remedial device which may be imposed by Chancery to deal w/ fraud and/or to prevent unjust enrichment. Holder of legal title is converted into trustee w/ duty to hold the property for the benefit of another. Occurs w/out regard to intent of settlor to create a trust.

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Honorary Trusts

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does not name a regular person as the beneficiary; it may provide a trust for an animal or for maintenance of a grave monument. Upheld even though there’s no beneficiary. Although there’s no person who can compel trustee to carry out the trust purpose, if he fails to do so, a resulting trust will be declared in favor of trustor or his successors in interest.

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Execution of Trust

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Must be in writing; Executed by trustor and Witnessed by at least 1 disinterested person or 2 credible persons or in a writing executed by trustee who is a disinterested person. These requirements apply to creation, modification, or revocation of the trust.

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Trustor's Capacity

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T must be under no legal incapacity. Trust ay fail if Trustor is under a legal incapacity due to Duress, Fraud, mistake, undue influence or infacy. Testamentary trust – T must have had testamentary capacity.

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Trustor's Intent

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Trustor must manifest present intent to create a trust relationship. Intent to create the trust must be a present intent. It cannot be conditioned on a future event, and trust property or beneficiaries cannot be determined by the settlor at a future time. However, beneficiary’s enjoyment of the property postponed until some itime in the future. Intent to create must be conveyed by Trustor by words or conduct , but it is not necessary that he use the words Trustee or Trust. Trustor must intend that enforceable duties be imposed on trustee to manage and use the trust property for the benefit of the beneficiary. Mere precatory words expressing the Trustor’s wishes are insufficient to create such enforceable duties. Court look to the surrounding circumstances to help determine T’s intent. Trustor must intend to create a trust relationship.

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Trust Corpus

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the trust must have ascertainable property (aka res, corpus, or principal). Trustor must have had an assignable interest and the power to convey the property. A mere expectancy cannot be the subject matter of a present trust. However, a trust may permit additions to a trust so that a trustor may add subsequently received property to the trust.

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Beneficiary of Trust

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w/ right to enforce the duties imposed on trustee. Beneficiaries of private (as opposed to charitable) express trust must be ascertainable at the time of the creation of the trust or within the period of the RAP. Charitable trusts are not subject to the RAP. (DE has abolished Rap for personal property held in trust (see IX-C below). A class designation is sufficient if the individual members are clearly ascertainable by some objective standard, at least w/in the period of the RAP. Class designation will fail if the class is too indefinite. If testamentary trust fails for being too indefinite as to the ID of the Benny’s, trustee holds the property in a resulting trust.

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Purpose of Trust

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A trust must have a valid purpose. No statutory requirements, but trust will be void if its purpose involves commission of a crime or a tort of if its purpose is contrary to Public Policy. Trust will also be void if its intent was to defraud creditors, or if it was based on illegal consideration. Ex. conditioning a beneficiary’s interest on obtaining a divorce or on never marrying are void.

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K to Create a Trust

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Not enforceable unless supported by consideration. After trust is created (even if no consideration is given) it is enforceable by the benny.

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Trusts & RAP

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abolished in DE for personal property held in trust. abolished Common Law RAP for trusts of real estate. Real property held in trust - 110 yr limit from the later of Acquisition of the real estate by trustees or The date the trust became irrevocable. Personal property rule governs even if the personal property if an entity which owns real estate

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Merger

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if trustor, trustee and beneficiary are the same person, the legal and equitable interests merge and no trust is created. Only applies if tere is a complete convergence of interests. Trustor can be trustee and one of several beneficiaries. Trust will be created even if the other beneficiaries do not receive their interest until the death of trustor/trustee, even if it’s a revocable trust

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PER

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may be used to prove the existence of an express trust of personalty of realty in DE. Π’s proof must be clear, full and satisfactory.

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Transfer of Property to Trustee

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Trust only effective as to property titled in trustee’s name. trust may be unfunded at time of its creation and still be valid. Terms will only govern property actually placed in the trust. if real property is placed in trust, deed must be delivered to trustee. property placed in trust is not subject to probate b/c it doesn’t pass by will.