
EXPRESS TRUSTS:
– No oral trusts of land – see Statute of Frauds
– Oral trusts of personalty normally ok, but see Prop 112.004
• Real and personal property must be in writing EXCEPT personalty trust under 112.004(1), (2) is valid
– Settlor not trustee and no beneficiary is trustee
– Defective gifts:
• Pye – defective gift = declaration of trust but Richards overturns and common law now
– Stashes
• Test for determining
– Separation of benefits/burdens – legal/equitable title
• If transfer both no longer have trust, just have owner
• “Doctrine of Merger” – trustee FBO trustee as beneficiary
– This is never a trust – can also terminate a valid trust
– Only one trustee with 100% beneficiary
– Manifestation of Intent to Create Trust:
• McKinsey – Precatory words
– Words are precatory only NOT commanding
• Levin
– Trust is create – “desire” = word of command
– Intent is determined from 4 corners of will
– Extrinsic evidence
– “Equitable charge” <> trust
– Not holding in trust but holding title subject to $2400 annual payment
– Trust v. Contract (“Insurance trust”)
• Pierowich:
– Courts sometimes allow invasion of principal
– Can’t invade because will be stealing from B to pay A (in multi-beneficiary situation)
– Different beneficiary and remainderman
– Invasion normally only with single beneficiary
– Decided contract not trust
– K test – if meets these two, overrides “in trust”
– No paying all proceeds – just 3.5% (fixed)
– No segregation of assets
Totten Trusts
• Savings bank trusts, tentative trusts, trust accounts, ~ POD accounts
• Really trust substitutes because *
– E.g. X, trustee for Y (no statutory formalities)
– * X is owner of everything during lifetime – 438c
– Can change anything at any time, revoke, etc.
– SoW inapplicable to Totten Trusts – 441
– Parallel – POD (X, POD Y0
• Rodgers
– Just have to show manifestation of intent to revoke?
• §§440, 447 – oral and will revocation not possible
• §442 – inadequate assets re: Totten Trusts:
– Estate can go after Totten beneficiary to pay estate debts, lawyer, taxes, family allowances
– Very similar to UPC
• Farmers Loan
– Failed gift <> trust
– Just assign 2.3 million to trust (present assignment)
• Property required
– Prop 112.005
– Property on testator’s death – expectancy befor edeath
– Life insurance property even if person alive because it’s a contract
– Life Insurance Trust
• Beneficiary is trust
• Funded (additional property)
• Unfunded (just life insurance)
• 3.49-3 – Insurance Code
– Property
– Can be unfunded trust
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