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Trusts (Creation (Termination/Modification (Spendthrift provision:…
Trusts
Creation
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Termination/Modification
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Discretionary provision: Vests additional power in the trustee to decide when to distribute income of the trust
Types
Express
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Can be created by a) an inter vivos trust created by a declaration of trust by the property owner; b) an inter vivos trust created by transfer of property during settlor's lifetime; or c) a testamentary trust created by will
Charitable
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Charitable purpose (e.g., relief of poverty, advancement of education, advancement of religion, etc.)
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If charitable trust cannot be performed as intended, charitable trust terminates
Constructive
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May arise from theft, conversion, fraud, duress, or other situations requiring an equitable remedy such as breach of fiduciary duty
Resulting
Arises upon the failure of an express trust, from a purchase money resulting trust or from an incomplete disposition of trust assets
Beneficiary is responsible for supplying trust property, and trustee holds title, but did not give consideration for the trust property
Trustee
Powers (originate from terms of the trust together with powers appropriate to achieve the proper investment, management, and distribution of trust property)
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Liability
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Remedies: compelling trustee to convey property back to trust; recovering profits made by trustee; returning appreciation or profits from commingled funds; punitive damages; removal of trustee