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Trusts and Estates (Beneficiaries (Disclaiming interests in property (Must…

- - - - Operation of law
      - Written instrument
      - Physical act
- - - - Delivered to trustee by inter vivos transfer
      - Or a testamentary trust
    - - Settlor can revoke or amend a trust unless stated irrevocable
      - Beneficiaries
        
        Modification conflicts with material purpose of trust (settlor's consent required
        
        Modification does not conflict with material purpose of trust (settlor's consent not required)
        
        If all beneficiaries do not agree with modification, court may modify or terminate trust when
        
        Trust could have been modified if all beneficiaries agreed to modification, and;
        
        The interests of any non-consenting beneficiaries will be adequately protected
  - - - inter vivos trust created by declaration of trust by property owner stating trustee holds property in trust
      - inter vivos trust created by a transfer of property during settlor's lifetime
      - Testamentary trust created by a will
    - - Indefinite beneficiaries but cannot be restricted to small group of people
      - Objective must be to benefit public, but can be a personal choice and reason
      - Rule against perpetuities
      - Cy pres doctrine - when designated charity is not in existence at the settlor's death, the court may redirect the truest to a purpose as near as possible to the charitable endeavor designated by settlor
      - Termination - if trust cannot be performed as intended and Cy pres requirements are not met, charitable trust terminates and a resulting trust in favor of settlor's estate results
  - - - Settle or abandon trust claims
      - Exercise all rights and powers an unmarried individual has over his own property
      - Borrow money
      - Sell or lease trust assets
      - Apportion trust income
      - Incur reasonable expenses necessary to maintain trust property
    - - Duty of loyalty and good faith
      - Duty to preserve trust property and make it productive
      - Duty to dispose of wasting or non-productive assets
      - Duty to maintain accounting transactions
      - Duty to enforce claims and defend trust from attack
- - - - Must be in writing
      - Testator must sign
      - Two attesting witnesses
      - Testator must sign or acknowledge a previous signature in each witness's presence
      - Witnesses sign in testators's presence
      - Potential additional requirements
        
        Testator's signature at end of will
        
        Testator must publish will
        
        Witnesses sign in front of each other
  - - - Mental capacity
        
        Testator must be 18 or older
        
        Testator must understand the nature of the act
        
        Testator understands the nature and extent of his property
        
        Beneficiaries are the natural objects of his bounty
        
        Testator understands the nature of the disposition he is making
    - - Undue Influence
        
        Influence exerted on testator
        
        Effect of influence overpowers testator's mind and free will
        
        Product of influence was a will not being executed but for the influence
      - Fraud
      - No contest clause
        
        only enforceable if the will contest is unsuccessful and no probable cause existed