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116 Cards in this Set

  • Front
  • Back
Express Trusts
which arise from the expressed intention of the owner of property to create the relationship with respect to the propert
Resulting Trusts
arise from teh presumed intention of the woner of property
Constructive trusts
do not depend on intention but rather consitsute a useful equitable remedy in cases involving fraud and unjust enrichment
Characteristics of An express trust
A trust is a fiduciary relationship with respect to property which one person, the trustee holds the legal title to the trust property, the res, subject to enforceable equitable rifhts in another, the beneficiary. The trsut must have a valid trust purpose.
What type of title do the parties to a trust have
1. legal title- trustee
2. equitable title- beneficiaries
Intention to Create a trust
1. Manifested by Words, Writing or Conduct
2. Must be manifested while settlor ownes property
Manifested by Words, writing or conduct
Except as limited by requirements of Statute of Wills or Statue of Frauds, this intention may be amnifested by written or spkend words or by conduct, and it need not be manifested by any particular for of language. An oral trust of personal prperty is valid in all jusrisdictions.

Must be manifested while settlor owns property
the intention to create a trust must have been manifested by the settlor at a time when he owned the trust property and prior ot its conveyance to another.
Future Interest May be Trust Res
A presently declared trust can have as the trust res a future interest in property (A can convey "to B for life and then to C as trustee for D" C has present duties to protect D's equitable future interst.
Effect of Promise to Create Turst
If settlor promises gratuitously to create a trust in the future, a trust arises in the future only if, at that time, the settlor manifests anew his intention to create a trust. Often this promikse will be to hold property in trust when the property is acquired. On the other hand, if the promise is supported by consideration, the trust can arise in the future, whehn the property is acquired without any further manifestation of intent.
Precatory Expresssion
No express trust language may be overcome if:
1. The directions are definite and precise, not vague
2. directions are addressed by decedent to his executor or administrator
3. failure to impose a trust results in unnatural disposition by testator
4. extrinsic evidence shows that the transferor had been supporting the alleged beneficiary prior to executing the insturstmen
Where a will names X as trusee, the trust does not fail merely because X has predeceased the testator. A successor trustee will be appointed in order to carry out the testator's intention.
What do you do in absence of a trustee
refusal of a named trustee to accept an appointment or his failure to qualify or even teh complete failure to name a trustee in a will, does not defeate a testamentary trust.
The absecne of a trustee may result in an attempted intervivos trsut failing for want of delivery. Sch a trust fials becuase there has been no transfer
Trustee must have duties
An active trust exists when the trustee has duties. A passive trust one whre trusttee has no duties at all, will fail and the beneficiaries will take legal title immediately. Some jurisdicion the duty to convey title to beneificiareis is enough to make the trust active.
If duties are not spelled out, then what do you have to have trustees duties identified by the court:
1. if there is an intention to create a trust
2. there is a res
3. beneficiary is identified
Qualifications of a Trustee
1. Capacity to Acquire or Hold Title for One's Own Benefit
2. Administrative Capacity- minors and incomptents contracts are voidable
3. Statutory Limitations on Right to Serve as Trustee-statutes sometime limit the right of some persons or corporations to seve as trustees.
Removal of Trustee
If his continuation in office would be detrimental to the trust:
1. commission of a serious breach of trust
2. legal or practical incapacity to administer trust
3. unfitness for the position
4. refusal to post bond or to accound
5. trustee's insolvency
6. extreme friction or hosttility between the trustee and the beneficiairies
Disclaimer or Resignation by Trustee
A trustee who has not accpeted the trust can disclaim and refuse appointement arbitrarily. However, he cannot accept a trust in party and disclaim it in party. Can't disclaim it after accepting.
Relation Back of Acceptance
The trustee's acceptance of a testamentary trust "relates back" to the settlor's death, because the trust is treated as having been in existence from taht date. Thus, it is possible for the trustee, by accepting to become personally liable on tort claims arising prior ot the time he accepted. Trustee may be reimbursed by trust.
Circumstances where a trustee may resign
1. authorized to do so by the terms of the trust
2. consent is given by all of the beneficiaries, all of whom have capacity to give this consent.
Merger of Title Where Sole Trustee is Also Sole Beneficiary
Where the sole trustee who holds legal title are one and the same person, there is amerger of the legal and equitable titles. This defeats and teminates the trust.
Trust Property
1. No Res- No trust
2. Property may be of any type
3. Tust property must be an existing interest in existing property
4. proeprty that settlor has power ot convey can be subject of trust- notes, contract
5. Trust must be segregated from other property
6. may include factional or undivided intersts
7. unenforceable gratuitious promises cannot be trust res
A trust cannot exits without someone to enforce it. A beneficiary is necessary to the validity of every trust except charitable trusts and so called honorary trusts. Where a trust failes for lack of a beneficiary, a resulting trust in favor of the settlor or his succesors in interest is presumed
Capacity to become a beneficiary
any person, natural or artificial, capable of taking and holding title to property can be a a beneficiary of a private trust. An unincorporated association, which has no capacity to take title, cannot be a trustee, and it is dobutful that it can be the beneficiary of a trust, since it is not a legally recognizable person.
Notice to and Acceptance by Beneficiary
Notice to the beneficiary that a trust is being created for his benefit is not essential to the validty of the trust. However, the beneficiary must accpt hsi rights under the trust. A trust cannot be foreced on teh beneficiary wihtout his acceptance.
Definiteness of Beneficiaries Under Private Trust
To have a private trust, there must be definite beneficiareis. Otherwise there would be no one to enforce the trust, and the trustee could appropriate the trust property for himself, which is not what the settlor intended.
Unascertained Beneficiaries
Ben. need not be identified at the time a trust is created, but they must be susceptible of identification by the time their interests are to come into enjoyment.
Class Gifts
A private trust may exists for the benefit of members of a class, provided the class is one that is sufficiently definite. As long as the class is a reasonably definite one, it is permissible that the members of the class are to be selected by the trustee in his discretion . If class gift is too broad, it will be an outright gift to trustee.
Trust Purposes
Trusts may be created for any purose that is not deemed contrary to public policy. An intended trust or a provision in the tersm of a trust is invalid if:
1. it is illegal
2. its performance involves the commission of a criminal or tortious act by the trustee or
3. its enforcement would be contrary to public policy
Creation of an Express Trust
1. An inter vivos trust may be created by a declaration of trsut by a property owner, stating taht he holds the property as trustee in trust
2. An inter vivos trust is also created by transfer of property by the settlor during his lifetime
3. A testamentary trust is created by will
Inter Vivos Trusts
1. Declaration of Trust- S is T for B, no delivery required.
2. Transfer of Property- T takes legal title upon delivery of a deed or other document of title, or upon actual delivery of manually transferable property
Delivery Required
Act that places the trust property out of the settlor's contral. Failure to name a trustee or a promise to name one in the future may indicate a lack of present intention and may prevent a delivery of the trust res.
Testamentary Trusts
To create a trust by will, the trust intent and the essential terms of the trust must be adcertained from one of the following:
1. the terms of the will itself
2. An existing writing property incorporated by reference into the will
3. Facts having a substantial independent significane apart from their effect on the terms of the will
4. The exercise of a power of appointment created by the will
Charitable Trusts
Have three disctinctive rules
1. Must Have Indefinite Beneficiaries- no identifiable inidividuals
2. Cy Pres Doctrien Applicable- may redirect trust to as near as possible
3. May be Perpeptual-
What are Charitable Purposes
one that benefits the public. relief of poverty, the advancement of religion or education, gov purposes
Effect of Gift Controlling Factor
It is the effect of the gift ot the public or a portion thereof, not the motive...building a tennis court in neighborhood.
What do you do if the trust is mixed?
Where the beneficiaries of a single trust are both charitable and noncharitable, the trust is a mixed trust, and the speical rules for charitable trusts do not apply. Two trusts may be found if their is an indication of mount to apply to charity or how long he intended it to apply
Indefinite Beneficiaries
Beneficiaries of a charitable trust must be indefinite. The class must be an unnamed and changing class.
Enforcing a Charitable Trust
1. Settlor and Potential Beneficiaries Have No Standing to Sue Charitable Trustee
2. Charitable Trusts Enforceable by State Attorney General-
Cy Pres
Since a trust for charitable purposes may be perpetual, it often happens that the specific charitable purpose indicated by teh settlor is accomplished or becomes impractical. In such a case, where th esettlor had a general charitable intent, the cort will direct that the trsut property be applied to another charitable purose as close3 as possible to the original one.
Selecting a Purpose "As Near As Possible"
In formulating an alternative use for the property, the court must determine the settlor's primary purose, although her other purposes should be taken into account.
Equitable Division
Even if the court refuses to apply cy pres__because the purose of the trsut can still be carried out__it can, by exercising its equiable power, authorize equitable deviation from an administrative term of the trust.
Honorary Trust
is a trust taht is not for charitable purposes and has no private beneficiaries.

Trusts for pets

no beneficiary to enforce
Aleinability of Beneficiaries' intersts in trusts
1. Voluntary- the equitable interest of a trust beneficiary is freely alienable to teh extent the beneficiary can transfer other property.
2. Involuntary Alienation- the interest of an insolvent trust beneficiary can generally be reached in appropriate proceedings to satisfy the claims of his creditor.
Restraints on Alienation--Spendthrift Trust
The beneficiary is unable voluntarily or involuntarily to transfer his interest in teh trsut. He cannot sell or give away his right to future income or capital, and his creditors are unable to collect or attach such rights.
Rights of Creditors in Spendthrift Trusts
Creditor cannot reach the beneficiary's interest in the sense of selling it as a means of realizing upon his futuer rights. The proeprty in the beneficiary's hands after distribution is no longer protected by the spendthrift clause and is subject ot the claims of his creditors. Must catch before spent.
REstraint on Involuntary Alientation--Only
A restraint that prohibits creditors from reaching a beneficiary's interest, but does not prohibit the beneficiary from vluntarily alienating his interst, violates public policy.
Attempted Assignemnt in Violation of Spendthrift Provision
The purported assignemnt does operate as an authorization to the trustee to pay income to B, and as long as teh authorization has not been reputiated by A, the trustee may, without liability make apyments to B.
What if the Settlor is the Beneficiary?
The settlor cannot protect his own retained interests from his creditors by the inclusion of a spendthrift provision.
How do you know if a Settlor is a Beneficiary?
If a person furnishes the consideration for the creation of a trust, he is the settlor.
If in consideration of the conveyance of Balckacre from A to B, Btransfers Whiteacre to T in trust for A for life, remainder to A's children, A is the settlor of the trust.
Discreationary Trusts
the trustee is given discreation wheter to apply or withohold paymentnts of income or principal to a beneficary.
Dirrerence in When Trustee Exercises Discretion in a Discretionary Trust
Before he exercises discreation, the interest in ben cannot be reached.
--after the trustee exercise discretion, paments may be made to creditors.
--can reach a settlor/beneficiary
Support Trusts
One where the trustee is required to pay or apply only so much of the income or principal as is necessary for the support of the beneficiary
Characteristices of Support Trusts
1. All income for support is not a support rust.
2. Not assignable- creditors cannot reach
Power of Settlor to Revoke or Modify
1. Trusts are presumed revocable unless trust is expressly made revocable, it is irrevocable by court
2. Power to Revoke includes the power to amend
Modification or Termination by Agreement of Beneficiaries:
All beneficiaries consent and
(2) the modification or termination will not interfere with a material purose of the trust.
Determining Material Purpose
1. Preserve property for remainderman- to A for life, remainder to b. B dies leaving everythingt to A. A could terminate
2. let's just say that a revocation cannot be contrary to the material purpose of the trust.
Liability of Trustee when Beneficiary trues to revoke
If all beneficiariess consent and teh trustee is willing to comply with teir requrest for termination, a termination of the trsut and a distribution of the corpus in the agreed fashion amount the beneficiaries will almost certainly leave the trustee without any liability.
What if the settlor objects ot the termination
if the beneficiearies have a right ot terminate under the above rules, the settlor's objections will not preclude their terminating the trust. the objections might be relevant in considering what the purposes of the trust are.
Judicial Power to Termiate or Modify Trust
1. Premature Termiation
2. Doctrine of Changed Circumstances
Doctrine of Changed Circumstances
A court may authorize or direct a trustee to deviate from administrative terms of a trust if
1. complicance with the terms of the tust would defeat or substantially impair the accomplishments of the trust purposes
2. the settlor did not now or anticipate the new cercimstanes
Sources of trustee's power
1. expressly conferred upon her by the tersm of the trust
2. by the tersm of a statute or by court decree; and
3. necessary or appropriate to carry out the puroposes of the trust and are not forbidden by the terms of the trust.
Joint Powers
Where there are tow or more trustes, the traditional position taken by the courts is that all trust pwors had to be exerciesd by unanimous agreement. If more than two, majority.
Imperative Powers
A power is imperative where the terms of the trust require the performance of a particular act
Discretionary Powers
Exercise of discretionary power is subject to judicial review to prevent abuse of the trustee's discretion. To the extent that the exercise of such a power involves a business judgment rather than a question of law or interpretation, a court will generally refuse interference.
Power of Sale
where the trust terms neither confer nor withhold the power to sell trust property, a power of slae is generally quite readily inferred by the courts
Power to Incur Expenses
it is generally implied that a trustee can incur expenses that are appropriate to carry out the trust purposes. She can incur such expenses as are necessary and ordinary in the amnagement of th etrust property and in keeping the property in repiar, and she can employ agents and advisors where this is prudent or where she cannot reasonalby be expected to personally perform certain duties. Less willing for improvements
Power to lease
a trustee has an implied power to lease trust property on such terms and for such periods as are reasnable under the circumstances
Duties of Trustee
1. Reasoanble Care
2. Duty of Loyalty--no self dealing
3. duty to separate and earmark trust property--nocommingling
4. duty to perform personally--no deleagtion
5. duty to defend trust from attack
6. duty to perserve trsut property and make it productive
Resaonble cAre to Trustee
the trustee must exercise taht degree of car, skill, and caution that would exercesed by a reasonably prudent person in managing her own property.
Duty of Loyalty
A trustee cannot enter into any transaction in which she is dealing with the trust in her individual capacity.
Specific Self Dealing Rules
1. Cannot buy or sell trust assets
2. cannot sell assets from one trust to another trust
3. cannot borrow trust funds or make loans to trust
4. cannot use trust assets to secure personal loan
5. cannot personally gain through position as trustee
6. corporate trustee cannot invest in its own stock
7. self employment can constitute form of prohibited dealing
Indirect self dealing- transactions with relatives, business associates
self dealing rules apply to sales or loans to a trustee's relative or business associate and to a corporation of which the trustee is a director, officer, or principal shareholder
Beneficiary's rights in case of prohibited transaction
the beneficiary may:
1. set aside the transaction;
2. recover the profit made by the trustee, reduced by losses arising out of the same transaction or
3. ratify the transaction
Restrictions on Self Dealing can be waived by teh settlor
The settlor of a trust can waive the rules prohibiting self dealing by expressly conferring upon the trustee the power to act in a dual capacity.
duty to separate and earmark trust property- no commingling
trust assets must be kept physically separate from teh trustee's personal assets and from assets of other trusts. trust property must be titled in the trustee, as trustee for a specific trust. Must be deposited as T for trustee.
Dut to Perform Personally
A trustee cannot delegate the entire administration of a trust. She may delegate acts taht would be unreasonable to require her to perform personally. (mailing letters.)
Remedy for failing to perform personally
if trustee improperly limits or surrenders her control over trust property, she becomes a guarantor of the fund. The trustee is held liable for the amount of the actual loss to the trust.
Duty to Defend Trust from Attack
Except when the examination reveals taht the attack against th etrust is well founded, she has a duty to defend the trust
Duty to Preserve Trust Property and Make it Productive
Ducty to make the trust peroperty productve, which includes duty to invest.
1. collect all claims due the trust
2. lease land or manage it
3. record recordable documents to protect title; keep securities and funds in safe places; pay taxes on trust assets, secure insurance
4. invest trust funds
Unifrom Prudent Investor Act
A trustee must invest and manage trust assets as a prudent invstor would, taking into account the purposes, terms, distribution requirements, and other circumstances of the trust. to satisfy this objective standard of the prudence, the rustee must exercise reasonable care, skill, and caution.
Prudence Evaluated as to overall investment strategy
The UPIA is based on teh modern portfolio thoery of investing. Thus, each investment decision must be evaluated, not in isolation, but in the context of the entire trust portfolio ans as part of an overal invsetment strategy.
Any Type of Investment Permitted
The UPIA permists a trustee to invest in any kind of poerperty or any type of investment consistent with teh standards of thsi act, no particluar type of investment is inherently imprutent.
Risk Return Curbe
requires the trustee to tailor an investment strategy that incorporates risk and return objectives suited to teh particular test
Delegation of Investment and Management Functions Permitted
A trustee may delegate investment and management functions taht a prudent trustee of comparable skills could properly delegate under the circumstances.
In selecting a financial advisor, the trustee must exercise reaonable care, skill, and caustion in:
selecting an agent
2. establishing the scope and terms of the delegation, consistent with purposes of the trust, and
3. periodically reviewing the agents's actions to monitor the agent's performances and compliance iwth the terms of the delegation.
Unsecured Loans and Second Mortgages
An unsecured loan of trust funds is normally an improper investment. Most states regard and investment in a second mortgage as a breach of trust in the absence of extreme or compelling circumstances.
The Fiduciary Obligation
The standards imposed are harsh on the trustee.
Questions should should ask in a question...
1. Was the act one that the trustee was authorized to perform under teh terms of the trust and apllicable law? If not, there is a breach of trust regardlss of the good faith, skill and diligence with which the trustee performed the act.
2. If the acts was proper for the trustee to perform, did the trustee perform in a manner that satisifies the standard of conduct required of her?
Enforcement by Beneficiaries
The beneficiaries may seek to have the trustee surcharged or removed from office if the trustee breaches her duties. Teh settlor may sue if he is also a beneficiary, but third parties may not seek to enforce the trust.
--Defenses- equity may not enfoce the trust if the ben. expressly or impiedly consented to or joined int eh breach of trust.
Trustees liability for the acts of others
1. Agents
2. Co-Trustees
3. Predecessor Trustees
4. Successor Trustees
Trustess Liability for Agents
A trustee is not liabile for the acts of agents unless the trustee:
1. directs, permits, or acquiesces in teh act of the agent or conceals the act or negligently fails to compel teh agent to redress the worng
2. fails to exercise reasonable supervision over the agents
3. permits agent to do duties not entitle to delegate
4. fails touse reasonable care in teh selection of agents
Trustees liability for Co Trustees
A trustee is not liable to the beneficiaries for a breach of trust commited by a co trustee unless:
1. improper delegation of authority to cotrustee
2. Participated, approved or acquiesced int eh breach by her cotrustee
3. concealed the breach or failed to take proper steps to compel redress of it by co trustee
Liability for Predecessor Trustess
A trustee is not liable to the beneficiaries for breaches of trust commited by a precedessor trustee unles she:
1. knew or should have known of the breach and failed to taje proper steps to prevent or
2. negligently failed to determine the amount of property that should have been turned over to her
Effect of exculpatory clauses
courts tend to frown upon these clauses and will construe them narrowly. One that absolves from all liability will be held void as against public policy. They are not okay if limit for bad faith, intentional breach of trust, or recklessness.
Trustee's liabiity to 3rd parties
1. Contract Liability- the trustee is personally liable to third parties on contracts entered into with them in the course of the trust administration- idemnification is okay and reimbursement for legal fees
2. tort liability- personally liabile to thrid parties for torts as an ordinary owner would. idemnifications if not personally at fault.
Allocation of Receipts and Expenses Between Income and Principal Accounts
Assets received by the trustee must be allocated to either principal or income.
Ex. A for life, remainder to B. A is to receive the income for life; at A's death, B is to receive possession of the pricipal. The trustee will usually credit the assts received to pricipal and credit all icome earned to icome.
Duty of Fairness to all Beneficiaries
The Trustee is under a duty to administer the trust impartially "basedo n what is fair and reasonable to all of the beneficiaries" except to teh extent taht the trust or the will manifests an intent that one or more of the beneficiaries is tp be favored over others.
Allocation of Receips
The acts sets out detailed ruls as to how certain receipts and expenses are to be allocated between the income and the principal acounts. i ngeneral, the allocation ruels follow traditional accounting rules. net rental icome is in come as is interst on a bond or certificate of deposit. The proceeds of slae of a trust asset are principal, as are eminent domean awards for the government of taking property.
Revocable inter vivos trusts
A revocable inter vivos trust avoids teh costs and delays of probate and has a number of advantages over a will. Teh reason why the revocable trust is not a will, and does not have a comply with the STatute of Wills is that interst passes to the beneficiary during the settlor's life; it merely becomes possessory on the settlor's death. The interest can be rovoked or divested during the settlor's life, but it passes ubject to revocation.
Determining Whether Interest Passes
1. Where Trustee Given Usual Powers
2. Where administrative powers retained- modern courts will sustain this trust.
3. Declearation of Trust- even if create a trust in oneself, as long as took some action that made clear intention to create a trust, it was okay.
Advantages of Revocable Trust
1. Management of Assets- give to bank
2. Planning for Incapacity- no adjudication of incompetency
3. Avoidance of Probate-
4. Secrecy- a will is not
5. Choice of Law- may choose a trustee in another state with another law
6. Defeat Spouse's Forced Share
Pour Over Gift from Will to Revocable Trust
Occurs when one has an existing trust to the benefit of another. The also have a will distributing other property to the benefit of the same people. The will will allow one to bequeath there residuary estate to the trustee under an instrument of trust already executed.
Special Aspects of Pour over trusts
1. Trust must be in existence before or executed concurrnetly with will
2. trsut may be amendable and revocable- pour over will valid even though present trust is amendable
3. Gift is valid even though trust unfunded during settlor's lifetime
Life Insurance Trusts
1. Contingent Beneficiary Trust- beneficiary is H, and if H doesn't survive W to B to hold in trust for W's children
2. Assignment Policies-
Trotten Trust Bank Accounts
name given to a bank account in the depositor's name as trustee for a named beneficiary. A continues to keep rights to account that is "in trust for B." It passes on A's death to B. May be revoked by withdrawals or an intent to revoke.
What happens if there is a conflict between the named beneficiary on the Trotten trust account and a will?
The will wins.

These are subject to creditor's claims

terminates if benefciary predeceases depositor
Uniform Transfers to Minor
Not a trust, it is a custodian of legal title in the minor.
Property may be tranferred to aperson as custodian for the benefit of a minor. The custodianship terminates when the donee attains age 21.
Resulting Trusts
1. Purchase Money resulting trusts
2. resulting trusts arising on failure of an express trust
3. resulting trsuts arisign from an incomplete disposition fo trst assets
Purchase Money Resulting Trusts
There is a sale of property--real or personal--in which Y obtains legal title from the seller. But Y, who takes title did not supply consideration; another person X, paid teh consideration. Unles X and Y are close realtivs, it is nlikely that X intended a gift. The courts imply that Y is trustee and X is beneficiary of a resulting trst. Y has no management duties.
Types of Consideration for a resulting trusst
Usually money, but may be services, or cancelling a debt. A resulting trust arises only from consideration given for actual purchase of he property.
When should the consideration be furnished?
Consideration for a resulting trust must be supplied at or before the time Y takes title
REbuttable Presumption of Resulting Trust
The money used as consideration was either
1. a gift from X to Y
2. a loan from X o Y
3. payment by X of a debt owing to Y
No Trust Presumption Where parties closely related
A gift not a trust is presumed from the following relationships
1. Parent supplies consdieration title taken in child's name
2. Grandparent supplies consideration title taken in grandchild's name
3. Husband supplies consideration, title taken in wife's name
Trst is presumped when it is uncle, aunt, brother, sister, child, or grandchild supplying consideration
Unlawful Purpose
Equity will not imply a trust when:
1. X who supplied the consideration, is trying to keep prperty from his creditors
2. X is trying to avoid a tax liability
3. Y is eligible for financing that X cannot get
Transferee Obtained Title Wrongfully
the plaicing of title in Y's name must be with the consent of X, the one furnishing consideration