TRUSTS

TRUSTS

Express, Resulting, Constructive

ONLY 1 REAL TRUST
-Express Trusts

EQUITABLE REMEDIES:
-Resulting Trust
-Constructive Trust

EXPRESS TRUSTS

2 Types

Lifetime (inter vivos)

Testamentary

EXPRESS TRUSTS

eight requirements

1. Settlor
2. DELIVERY of legal title
3. PROPERTY (principal, corpus)
4. TRUSTEE holding legal title for
5. BENEFICIARY
6. INTENT to create a trust for..
7. LAWFUL PURPOSE
8. IN A VALIDLY EXECUTED DOCUMENT

EXPRESS TRUSTS

property requirement

identified, and not subject to determination at some future date

EXPRESS TRUSTS

trustee requirements

Anyone for lifetime.

Non-Resident Alien Rule applies to testamentary, must be related to decedent with a NY resident serving as co-fiduciary

Trust does not fail, ct will cure any trustee problem

EXPRESS TRUSTS

beneficiary requirement

MUST BE DEFINITE AND ASCERTAINABLE

AMBIGUOUS: trustee will hold property in a resulting trust for the residuary beneficiary of a will or intestate heirs in the absence of a valid will

"FAMILY" or "NEXT OF KIN:
-definite and ascertainable via intestate law

EXPRESS TRUSTS

intent requirement

MUST INTENT TO CREATE ENFORCEABLE OBLIG: mere precatory language is not enough

TRUSTEE MUST BE GIVEN DUTIES

"TRUST" language is insuff

EXPRESS TRUSTS

unlawful purposes

-commission of crime
-destruction of property
-against public policy

RESTRICTING/PROMOTING MARRAIGE:
-allowed to to provide for widow during unmarried period
-allowed to restrict based on religion or ethnic group

EXPRESS TRUSTS

execution

writing

signed by settlor and trustee

acknowledged by notary public

-signed by 2 witnesses

EXPRESS TRUSTS

types

REVOCABLE LIFETIME

POUR-OVER GIFTS

TOTTEN

JOINT BANK ACCOUNT

CHARITABLE

NON-TRUSTS

POUR-OVER GIFTS

testamentary gift to existing revocable trust are OK as pour-over gifts

KEY REQUIREMENT:
trust must be in existence or executed concurrently with will