Law School Resources
Wills, Trusts & Estates
I. CREATION OF TRUSTS -
Definition of a Trust – Property transferred to one
person for another’s Benefit,
A.
Elements of a Trust
– MUST ALL be Present WITH INTENT
·
INTENT
by Grantor to set up Trust in order to set up an
Express Trust-
·
Must be Definite and Ascertainable
NOT Precatory.(unclear; subject to
interpretation)
·
Typical Issue arises when Will has language stating
“I desire…” “I would like…” – does this set up an
Ascertainable Standard or D’s desires?
·
Intent is Required and is Fatal to "Trust" if not
present at inception of Trust:
·
Osbom v. Empire Life Insurance Co.,
342 So. 2d 763 (Ala. 1977)
1.
TRUSTEE
-holds Legal Title of property For the Benefit of
Another, a/k/a Fiduciary Law of contracts has
played important role in development of Fiduciary
law.
a.
How important is a Trustee?
·
KEY:
A Trust will
NEVER
fail for lack of a Tr’ee
·
Court would appoint a substitute trustee if none
existed.
2.
BENEFICIARY- holds Equitable Title
of property held in Trust. A person who has any
Present or Future Interest, Vested or Contingent, in
the Trust; the owner of an interest by assignment or
other transfer as it relates to a charitable Trust;
and any other person entitled to enforce the Trust –
a.
Trust must vest in an Ascertainable
Beneficiary prior to violation of Rule Against
Perpetuities or No Trust Exists.
·
Reason-is that someone must be able to
enforce the Trust
b.
A Trustee must be able to Ascertain the
Beneficiary either expressly or from among a
definite class of people. Connell v. Cole,
89 Ala 381.
·
If not at inception of the Trust it
must be within the period of time allowed by the
Rule against Perpetuities
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