Rule Sheet for Swapnotes - T&E - Scwartz

Rule Sheet for Swapnotes - T&E - Scwartz - Concept...

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Concept Rule / Description Case Ch. Minority Example Statute Policy Relief 8 8 RT2 13; RT3 13,15 8 8 RT3 46 Trusts: Intervivos: Creation An intervivos trust requires (1) manifestation of intent by the settlor to create a trust, (2) funding (that an identifiable property interest be transferred to the trust/trustee), (3) ascertainable beneficiaries and (4) possibly a writing (if real property is part of the trust res) In NY you have to have the trust instrument notorized (as of 1997). Trusts: Intervivos: Creation: Intent Use of "trust, trustee" or "in trust" usually satisfies this requirement but you also need some duties imposed on the trustee. If the donor just says "wish" or "hope" that the donee will use the property for the benefit of another, this creates a precatory trust which actually isn't a valid trust at all and creates no duties in the donee. Under the RT3 13, evidence of intent can include statement made after the act that purportedly creates the trust (i.e. after the transfer) but this can only be used as evidence of what the trustor was then thinking because a subsequently formed intent doesn't count. Also, when a trustor manifest an intent that a trust take effect at some future point in time, no trust is created. Trusts: Intervivos: Creation: Funding The property must be transferred to the trust/ trustee. Property: Future profits, a mere promise to give gifts in the future, nor expectancies qualify as property for these purposes (as per Brainard) unless the jurisdiction follows Speelman (different from Brainard b/c there was a writing). But you can GIVE future profits (if it's irrevocable), just not through a trust. Unthank: unless you set aside specific property and say a trust is imposed on it, then NO trust comes into being. Exception: There is no delivery problem when you name yourself as trustee. because have declared self as trustee which gives self legal title to it (and you already have it) & If settlor declares himself as trustee, unless jurisdiction has Statute of Frauds requirement, declaring self as trustee could even be oral Hebrew Univ.; Unthank; Brainard; Speelman Constructive Delivery - If party's intent to transfer is clear enough, court may create the trust equitably. Differences b/w Brainard and Speelman : (1) Speelman involved a writing, (2) Speelman owned the rights/means of producing the profit (the play rights), (3) Brainard involved tax fraud issues. NY EPTL 7-1.17 : If settlor declares himself as sole trustee, requirement that it be in writing (even for personal property) and settlor’s signature on instrument normally has to be acknowledged (notarized) unless you get 2 witnesses. No res (property): “hereby bind my estate to make the $200 monthly payments.” Restatement 3 – takes Brainard view that you can’t create trust with corpus being solely future profits. • Schwartz thinks
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Rule Sheet for Swapnotes - T&E - Scwartz - Concept...

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