List of Terms/ elements to know - notecards?

Ambulatory Document one subject to modification or revocation by the testator during her lifetime ex. Will Will (p. 286 f.n. UPC)includes a codicil and any testamentary instrument that merely appoints an executor or revokes or revises another will Ways a Will may be Revoked [2] 1. By a subsequent writing executed with testamentary formalities, or 2. By a physical act such as destroying, obliterating, or burning the will Doctrine of Dependent Relative Revocation (DRR) o DRR is of presumptive intent not actual intent o Limits on DRR only applies where (1) there is an alternative plan of disposition that fails, or (2) the mistake is recited in the terms of the revoking instrument or possibly is established by clear and convincing evidence Revival Codicil governing instrument deed, will, trust, insurance, or annuity policy, account with payableon-death designation, pension plan, or similar nonprobate donative transfer Two doctrines which can have an effect by permitting extrinsic evidence to resolve the identity of persons or property (1) doctrine of incorporation by reference; and (2) doctrine of acts of independent significance Doctrine of Incorporation by Reference a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification Doctrine of Acts of Independent Significance (Doctrine of Nontestamentary Acts) a gift may be upheld if the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance apart from their effect on the will this is true even if the will leaves it in the testators power to alter the beneficiaries or property by a nontestamentary act Doctrine of Integration all papers present at the time of execution, intended to be part of the will, are integrated into the will not all wills, in fact most wills, are not on one sheet of paper Publication is the testators statement to the witnesses, by words or by action, that a document is the testators will Doctrine of Republication by Codicil a will is treated as re-executed (republished) as of the date of the codicil; it is when the most recent codicil was executed whether or not it expressly republishes the prior will (unless effect would be inconsistent w/ testators intent) applies only to prior validly executed wills Contract to Make a Will Contracts Not to Revoke a Will o Joint will one instrument executed by two persons as the will of both one will, two people when one testator dies the instrument is probated as testators will; when the other testator dies, it is again probated as the other testators will uncommon

o o

Mutual Will the separate wills of two or more people that contain similar or reciprocal (mirror-image) provisions common in spouses Joint and Mutual Will refers to a joint will in which the respective testators make similar or reciprocal provisions

CHAPTER 5: 2 Rules which operate in tandem in construing wills and bar the admission of evidence to vary the terms of the will 1) plain meaning or no extrinsic evidence rule; and 2)no reformation rule - Plain Meaning or No Extrinsic Evidence Rule extrinsic evidence may be admitted to resolve some ambiguities, but the plain meaning of the words of the will cannot be disturbed by evidence that another meaning was intended - No Reformation Rule justification not to reform is that the court is compelled to interpret the words that the testator actually used, not to interpret the words the testator is purported to use o Reformation an equitable remedy that, if applied to a will, would correct a mistaken term in the will to reflect what the testator intended the will to say Courts have no power to reform wills. Hypothetical or imaginary mistakes of testators cannot be corrected. Omissions cannot be supplied. Language cannot be modified to meet unforeseen changes in conditions. The only means for ascertaining the intent of the testator are the words written and the acts done by him. A will duly executed and allowed by the court must under the statute of wills be accepted as the final expression of the intent of the person executing the will - Plain Meaning Rule words of the will cannot be disturbed by evidence that another meaning was intended, but some extrinsic evidence may be admitted if the words of the will are ambiguous or lack plain meaning o Patent Ambiguity appears on the face of the will and extrinsic evidence is not permitted to clarify court is confined to 4-corners of the will, even if as a result the will or devise fails and the property passes by intestacy o Latent Ambiguity manifests itself only when the terms of the will are applied to the testators property or designated beneficiaries -- -- Two types: Equivocation occurs when a will clearly describes a person or thing and two or more persons or things exactly fit that description - - admission of extrinsic evidence allowed and reasoning is it makes the terms of the will more specific w/o adding where there is an equivocation, direct expressions of the testators intent are admissible in evidence Personal Usage Exception seen in a line of equivocation cases where extrinsic evidence is allowed when it shows the testator always referred to a person in an idiosyncratic manner, then evidence is admissible to show that the testator meant someone other than person with the legal name of the legatee (think: I leave to bruce beeler E introd. = Blake)

No-Match Description when no person or thing exactly fits the description, but two or more things partially fit it; the description in the will does not exactly fit any person or thing - - extrinsic evidence allowed If intentional wrongdoing causes a mistaken term in a will (fraud), that term can be struck or its effect undone If a lack of volition has an innocent cause (lack of capacity) the will is not given effect If a bizarre mistaken belief about a member of the testators family influences the testators dispositive scheme, the courts remedy this mistake by calling it an insane delusion Yet if a mistaken term has an innocent cause (mistake) then no relief is available to correct the error under the rule against reformation

The Causes and Effects of Will Defects: -- what happens?

Effect: Lack of Volition Cause: Intentional Wrongdoing Cause: Innocent Acts
Ch. 5 SECTION B: If a devisee does not survive the testator, the devise lapses (meaning it fails) All gifts made by will are subject to a requirement that the devisee survive the testator, unless the testator specifies otherwise Antilapse Statutes o Common law rules regarding lapsed statutes which apply if the will does not indicate what happens when a devisee predeceases the testator and the antilapse is not applicable: 1. Specific or General Devise 2. Residuary Devise 3. Class Gift 4. Void Devise

Effect: Mistaken Terms

Undue Influence, Duress

(relief granted)

Fraud
(relief granted)

Lack of Capacity, Insane Delusion

(relief granted)

Mistake
(no relief)

Ch. 5 SECTION C: Doctrine of Ademption by extinction Demonstrative Devise Residuary Devise General Devise Specific Devise Identity Theory of Ademption Modified Intent Theory Doctrine of Satisfaction

Ademption by Satisfaction Doctrine of Exoneration of Liens Abatement arises when the estate has insufficient assets to pay debts as well as all the devises; in such case, some devises must be abated or reduced operates like bankruptcy ~ devises abate ordinarily in the following order o Residuary Devises are reduced First o General Devises are reduced Second o Specific and Demonstrative Devises are the last to abate and are reduced pro rata

CHAPTER 7:

GENERAL DEFINITIONS: Ademption revocation of a specific devise or bequest made pursuant to a testamentary instrument if the particular property is not part of the decedents estate at the time of death Antilapse Statute state statute providing for the substitution of a recipient of a devise made pursuant to a testamentary instrument, if the beneficiary of the gift predeceases the testator and no alternative disposition is made Attestation Clause that portion of a will purporting to have testamentary effect on the testators disposition as attested to by witnesses Beneficiary a third party who is the recipient of the benefit of a transaction undertaken by another Charitable Trust a trust that is established for the benefit of a class of persons or for the public in general Conservator a court-appointed custodian of property belonging to a person found to be unable to manage his property Constructive Trust a trust that arises by operation of law whereby the court imposes a trust upon property lawfully held by one party for the benefit of another, as a result of some wrongdoing by the party in possession so as to avoid unjust enrichment Contingent Beneficiary a 3rd party who is the recipient of the benefit of the transaction undertaken by another, the recipient of which is based on the uncertain happening of another event Corpus the principal property comprising a trust, not including interest or income Dependent Relative Revocation the doctrine which states that if the same person executes a will which revokes an earlier will, the earlier will is revoked only if the latter will is effective; otherwise the earlier will remains in full effect Devise conferring of a gift of real or personal property by means of testamentary instrument Discretionary Trust a trust pursuant to which the trustee is authorized to make decisions regarding the investment of the trust funds and the distribution of such funds to beneficiaries Doctrine of Cy Pres equitable doctrine applied in order to give effect to an instrument which would be unlawful if enforced strictly, as close to the drafters intent as possible w/o violating the law Durable Power of Attorney a written document pursuant to which one party confers the authority to act as an agent on his own behalf to another party and which is to become effective if the grantor should later become incapacitated Duress unlawful threats or other coercive behavior by one person that causes another to commit acts that he would not otherwise do Equitable Deviation Doctrine allows for deviation from trust terms if the purposes of the trust would be defeated under the attendant circumstances Fraud a false representation of facts with the intent that another will rely on the misrepresentation to his detriment Incorporation by Reference the reference to another document in writing stating that the secondary writing should be considered as part of the principal document

Inter Vivos Trust property that is held by one person for the benefit of another and which is created by an instrument that takes effect during the life of the grantor Intestate Succession the scheme pursuant to which property is distributed in the absence of a valid will or of a disposition of particular property Irrevocable Trust a trust that is not capable of being revoked after it is established Life-Income Beneficiary a person who is the recipient of income generated by certain property for the duration of the persons life, the remainder of which is to pass on to another individual upon the income beneficiarys death Perpetual Trust a trust which is to continue for as long as its purpose is necessary Pour-over Provision a provision pursuant to a testamentary instrument, providing that the residuary estate be distributed to a different testamentary instrument (i.e. will to trust or trust to will) Pretermitted omitted; usually refers to an heir who is unintentionally omitted from a testators will Primary Beneficiary the individual specified in a life insurance policy to receive proceeds upon the insureds death Reciprocal Wills Testamentary instruments pursuant to which two or more individuals make reciprocal provisions in favor of the other Remainder Beneficiary a person who is to receive property that is held in trust after the termination of a preceding income interest Remainderman a person who has an interest in property to commence upon the termination of a present possessory interest Res thing; subject matter of a dispute to establish rights therein Residuary Beneficiary person specified pursuant to a will to receive the portion of the estate remaining following distribution of the assets and the payment of costs Residuary Clause (of will) a clause contained in a will disposing of the assets remaining following distribution of the estate Residuary Estate the portion of the estate remaining following distribution of the assets and payment of costs Resulting Trust an equitable trust that is established from the inferred intent of the parties to create a trust Revocable Trust the holding of property by one party for the benefit of another pursuant to an instrument in which the creator reserves the right to revoke the trust Revocation the cancellation or withdrawal of some authority conferred or an instrument drafted, such as the withdrawal of a revocable contract offer prior to the offerees acceptance Rule Against Perpetuities the doctrine that a future interest that is incapable of vesting w/in 21 years of lives in being at the time it is created is immediately void Settlor the grantor or donor of property that is to be held in trust for the benefit of another Specific Bequest a transfer of property that is accomplished by means of a testamentary instrument Spendthrift Trust a trust formed for the beneficiarys support, but with restrictions imposed so as to safeguard against beneficiarys abuse

Support Trust a trust pursuant to which the trustee is authorized only to distribute such funds as are required for the support of the beneficiary Survivorship b/w two or more persons, such as in a joint tenancy relationship, the right to property of a deceased passes to the survivor Testamentary Capacity the requisite level of mental capacity required by law at the time a testator executes a testamentary instrument in order for the document to be valid; this generally requires a finding that the testator understood the nature and extent of his estate, the natural recipients of his property, and the effects of his disposition of his estate Testamentary Trust a trust that is created by a will and effective only after the grantors death, since the assets that comprise the corpus of the trust are assumed to vest at that time Trust the holding of property by one party for the benefit of another Undue Influence Improper influence that deprives the individual freedom of choice or substitutes anothers choice for the persons own choice Unjust Enrichment the unlawful acquisition of money or property of another for which both law and equity require restitution be made Voluntary Trust a trust established by a settlor voluntarily, as opposed to by operation of law, with the intent to make a gift of the trust property for the benefit of another

BARBRI NOTES ON TRUSTS:

Trust an arrangement for making gifts of property and for the management of assets, under which the
trustee holds legal title to the trust assets for the benefit of the beneficiaries who hold equitable title. Trustee has the burdens of ownership (duty to manage, safeguard, etc.); beneficiaries have equitable title and the benefits of ownership distinct feature is separation of legal title from benefit I. Requirements for a Valid Trust: To have a valid trust, settlor delivers trust property to trustee for the benefit of beneficiaries, with intent to create a trust. Trust must be for a lawful purpose; as w/ the law of gifts, there is no consideration required for creation(but there may be consideration) A. Settlor: (grantor) MUST HAVE LEGAL CAPACITY (must be 18 or older, must have capacity to convey legal title to the trustee, a higher test for capacity than wills) B. Delivery: requirement does not apply to self-declaration trust [where I hereby declare myself the trustee] OR to testamentary trust. But, for AN INTER VIVOS TRUST that names a 3rd party as trustee, the mere intent to create a trust, or gratuitous promise to create a trust, is not sufficient. As w/ the law of gifts, THERE MUST BE DELIVERY OF SUBJECT MATTER OF THE TRUST, W/ THE INTENT TO CONVEY THE LEGAL TITLE TO TRUSTEE. C. Trust Property: (res) the corpus, the principal, the subject matter of the trust. To have a trust, LEGAL TITLE TO A SPECIFIC INTEREST MUST BE CONVEYED TO THE TRUSTEE. The subject matter of the trust must be certain and identifiable no trust property then no trust! when testator still alive beneficiary only has Expectancy = fervent hope-NOT property different when the promise to hold property (to be received in future) in trust is supported by consideration under K principles, the trust automatically attaches when prop. received D. Trustee: MUST HAVE LEGAL CAPACITY TO DEAL WITH THE PROPERTY (must be over 18; must have capacity to K and execute deed) --NOTE: NO TRUST FAILS FOR LACK OF TRUSTEE. If the intent to create a trust is clearly manifested but no trustee is named or if the trustee dies or resigns w/ no provision for successor trustee, the court will appoint a suitable successor to carry out the trust. to resign, the trustee must: (1) get court approval, and (2) accounting ---

Accounting requires: (a) property initially received, (b) receipts and disbursements,
and (c) property now on hand plus liabilities E. Beneficiaries: for a non-charitable trust, the beneficiaries must be definite and ascertainable, and their interests must vest, if at all, w/in the R.A.P. (rule for charitable trusts is exact opposite seen below) o Resulting Trust: not a trust it is the term courts use for a failed trust o Parole Evidence is not admissible to identify beneficiaries F. Intent to create a trust: is the language precatory (a non-binding suggestion) or does it impose an enforceable obligation? >Precatory Language/Words do not impose an enforceable obligation; ex. I would like; request hope desire No particular words are needed to create a trust instead it is a question of intent

II.

G. Lawful Purpose: trust whose purpose is to further commission of a crime or calls for the destruction of property is invalid and against public policy also, unlawful conditions are unenforceable --- Two conditions which the courts will refuse to enforce: (1) encourage divorce; and (2) total restraint on marriage Revocable Trusts often used as supplements or replacements for a will As long as there are one or more trust beneficiaries, besides the settlor, a trust is not void as an attempted testamentary disposition (i.e. it does not have to be executed with the formalities of a will) even though settlor retains any 1 or more of following rights/pwrs: o Income for life o Power to revoke, alter, amend, or terminate the trust o Power to control trustee in the administration of the trust o Power to cause life insurance proceeds or employee benefits to be paid to trust Settlor can name self as trustee, to serve as long as she is willing and has capacity to serve The testamentary gift to the trust, called a pourover will gift, provides a mechanism for adding testamentary assets to a trust created by the testator during lifetime. By statute, such a pourover gift is valid: (1) Even if trust is subject to revocation and amendment and is later amended (2) Even if trust is unfunded life insurance trust (eliminates concern about res in an unfunded life insurance trust) UPC and Majority Rule: to be valid a recipient of a pourover gift from a will, trust can be in existence before or executed concurrently with or after the will is executed. Pourover gift can be made to a trust created by another person in this case, under will of settlors Husband Charitable Trusts, Honorary Trusts o 4 Distinctive Rules Apply to Charitable Trusts: 1. Not subject to R.A.P.; can be perpetual (ex. a trust to pay the income to the American Red Cross forever) 2. MUST be for charitable purposes. MUST confer a substantial amount of social benefit: education, religion, health, relief of poverty, research, governmental purpose 3. MUST be in favor of reasonably large number of unidentifiable members of the public at large, and cannot benefit identifiable individuals (A trust to pay the income to my poor relatives is not a charitable trust) 4. When the stated charitable purpose can no longer be accomplished may be reformed in judicial proceeding under the doctrine of Cy Pres (old French for as near as possible) General Charitable intent that can still be given effect Specific Direction that can no longer be accomplished if the Cy Pres is applied, the ct. will probably instruct the trustee to pay the income Majority Rule: to have a trust, the trustee must owe enforceable duties to someone. The type of gift, in which animals or an object is the beneficiary, is called an Honorary Trust.

III.

The trustee is on her honor in deciding whether to perform the trust. The gift is valid only in a sense that it will be upheld if Sarah chooses to perform if she doesnt, the gift fails and there is a resulting trust. problem: R.A.P. unless the trust is limited to 21 years duration b/c animals and automobiles cannot be measuring lives (they do NOT = life in being +21 yearsNO) Uniform Trust Code: Valid when beneficiary is an animal Yes: o Only animals alive during the settlors lifetime can be beneficiaries, trust terminates on death of animal (or last surviving animal), individuals named in instrument creating the trust can be used as measuring live for perpetuities purposes, trust is enforceable by a person named in trust or appointed by court, and trust property not used for the animals care is distributed to the settlor if living; otherwise under settlors will or by intestacy Valid when the Beneficiary is an object Yes: o Trist is valid for 21 years. Trust is enforceable by a person named in the trust or appointed by court, and trust property not used for the designated purpose is to be distributed to the settlor if living; otherwise under settlors will or by intestacy

IV.

Resulting and Constructive Trust

Resulting Trust is a term used by courts in 2 situations: 1. Where a trust fails for some reason (ex. to pay the income to my best friends) 2. Purchase Money Resulting Trust (p.m.r.t.) RULE: when A pays purchase price for land and causes the title to be taken in Bs name and A&B are NOT RELATED (eliminating the possibility of a gift) a Presumption arises that he had no intent to make a gift but there was another reason/motive --- A can compel recovery at any time remember it is ONLY a presumption Evidence is admissible to show (1) gift; or (2) loan of purchase price use these to DEFEND p.m.r.t. Where A&B are related the presumption is gift NOT p.m.r.t. but evidence is admissible to show p.m.r.t. (b/c remember these are ONLY presumptions) Constructive Trust is not a trust, but a name given to a flexible equitable remedy designed to disgorge unjust enrichment --- TWO ELEMENTS: 1. Wrongful conduct, and 2. Unjust enrichment o Step 1: Apply the Law. Is the new will admissible to probate? Was the old will revoked? o Step 2: Apply Equity o Slayer Statutes meaning no constructive trust is needed killer forfeits interest in Vs estate if he wrongfully brings about decedents death ~ under UPC: if he feloniously and intentionally kills the decedent --- treat Vs estate and distribute as though the killer predeceased the V Many states do not have slayer statutes and in that case we just impose constructive trusts b/c there is wrongful conduct that would lead to unjust enrichment. Statute of Frauds: a trust of land must be evidenced by a writing that satisfies SoF; oral trust of land is UNENFORCEABLE remember MYLEGS

V.

VI.

Constructive Trust may be imposed if: (1) Fraud in the Inducement (2) Grantee-Trustee was in confidential relationship with grantor-settlor (business associates; father-child; etc.) clear and convincing evidence is needed Equitys concern that one would take advantage of the SoF that trusts of land be in writing Creditors claims and Spendthrift Trusts o Spendthrift clauses are valid, except as to: 1. K for necessaries (medical, food, rent) This is seen as benefiting a beneficiary whose only source of income is a spendthrift trust, enabling her to get such contracts 2. Child support obligations 3. Any interest Retained by the Settlor 3(a): Revocable Trust 4. Federal tax Liens RULE: as to any interest retained by the settlor no spendthrift protection (cannot have your cake and eat it too) Alaska, Delaware, and a few other states have enacted statutes allowing asset protection trusts, under which a settlor can have his cake and eat it too When you make a gift (or trust) you relinquish ownership o Exception: fraudulent transfer a transfer made w/ the intent to defeat, delay, or defraud creditors Minority Rule: Uniform Trust Code all inter vivos trusts are revocable by the settlor unless expressly stated to be irrevocable o Distribution can me compelled when shown that is it needed for support it would be an abuse of discretion to not make a distribution when needed (in a trust created for support) ~Duty to support you can distribute up to need for support but NOT in excess or it would be a breach of trust and remaindermen would have an action against the trustee Self-Dealing by Fiduciary Self-Dealing is wearing 2 hats or sitting on both sides of the table and this violates duty of loyalty; concern is not necessarily that he will take advantage of the situation, but that personal interest may affect his judgment ~ some rules: a) Trustee cannot buy or sell trust assets to himself b) Trustee cannot borrow trust funds c) Trustee cannot loan funds to the trust, and any interest earned on such a loan must be returned to the trust. Any security interest received in connection w/ such a loan is invalid Self-dealing rules can be waived by the settlor d) Trustee cannot profit from serving as trustee (except for being compensated) as by taking advantage of confidential information received in his capacity as trustee, or by receiving commission for sale of trust property e) Corporate trustee cannot buy its own stock as a trust investment (BUT it can retain its own stock if a part of the estate received by it as trustee provided that retention of the stock is prudent)

f) Duty to segregate trust assets from personal assets and duty to earmark trust assets by taking title in the trustees name. Trustee cannot commingle trust funds with her own. If commingled funds used to purchase asset and asset goes down in value, conclusive presumption is that (to the extent available) personal funds were used. If the asset goes up in value, conclusive presumption (to the extent available) trust funds were used. Statute of Limitations does not begin to run on action against fiduciary (trustee, executor, guardian) unless and until he: (1) Repudiates the trust by denying existence of trust as to the particular assets in issue; (2) Dies or resigns; or (3) Gives accounting that makes full disclosure of the facts on which action would be based (ex. an accounting that shows, not just that the trust loaned funds to someone, but that the trustee was the borrower) Whenever a trustee breaches any fiduciary duty (commits a breach of trust) whether selfdealing, speculative investment, exercises a power not given to the trustee in addition to bringing action to remove the trustee, beneficiary has option: (i) He can ratify the transaction and waive the breach (ex. if speculative mining stock goes up in value Thanks for doing such a good job investing) (ii) He can sue for resulting loss. Name of the action is Surcharge. Moreover if the case involves self-dealing, under the no further inquiry rule breach of fiduciary duty is automatically wrong; good faith reasonableness is NO DEFENSE ONLY issue in selfdealing is the measure of damages If the trustee borrows trust funds and invests the proceeds, if value of purchased property goes up in value, beneficiary can tract and claim the property for the trust via the imposition of Constructive Trust. Self-dealing rules also apply to loans or sales to a relative and to a business entity of which the trustee is an officer, partner, employee, or principal shareholder (sometimes called indirect self-dealing) VII. Trust Administration Problems A. Trust Investments the UPIA i. Former law in most states ii. Current Law: nearly all states have enacted the UPIA or Uniform Prudent Investor Act, which is based on the modern portfolio theory of investing Trustee must establish a custom-tailored investment strategy for each trust, taking into account such factors as: General economic conditions The possible effect of inflation or deflation The expected tax consequences of investment decisions or strategies The role that each investor plays w/in the overall trust portfolio The expected total return from income and capital gain Needs for liquidity An assets special relationship or value to the purposes of the trust or beneficiary; and Any differing interests of the income beneficiaries and the remaindermen

Prudence is not measured by hindsight we look to conduct when the investment decision is made, not outcome or performance ~~Trustee must be thoughtful but that doesnt mean he has to be right 1. Under UPIA, investment returns are measured by total return including growth (appreciation) and capital gain 2. Under the (revised) UPIA, trustee can exercise adjustment power, and allocate principal to income account o Starting Point: trustee distributes income items (interest income, rental income, dividends on common stocks, etc.) to the income beneficiary; and adds capital gains (part of proceeds of sale of a principal asset) to the corpus of the trust. However, capital gains can be allocated to incomes where appropriate to determine whether to exercise power, see factors below Factors to be considered in exercising adjustment power (i.e. power to adjust total return b/w income and principal, and allocate capital gain and principal to income): Purpose and expected duration of trust Intent of the settlor as to respective interests of the beneficiaries The net amount of ordinary income and capital gain available for allocation Circumstances to the beneficiaries Need for liquidity, regularity of income, preservation of capital Any increase or decrease in value of the trust assets Whether the trust gives the trustee a power to distribute principal Effect of economic conditions an effects of inflation and deflation; and Anticipated tax consequences of an adjustment Recap: under Uniform Prudent Investor Act, invest for total return. Prudence is measured by conduct in making investment decision at time investment is made, not by hindsight based on outcomes or performance. Under UPIA, trustee can exercise adjustment power in favor of income beneficiary where appropriate, & can allocate capital gains and principal to income Trustee may delegate its investment functions to an investment agent. Trustee is not liable for agents investment decisions IF trustee exercises due care in selecting agent and reviewing agents performance A settlor may authorize trustee to retain an asset w/o any duty to diversify or to make speculative investments that are not w/in the prudent investor standard o All provisions of a particular states Trust Code are default rules. They apply absent contrary provisions by the settlor. A settlor can write her own rules and modify the otherwise applicable statutory provisions Uniform Trust Code [and Uniform Trustee Powers Act] ~ if a fee simple owner can do it then so can a trustee standard to measure ** Model Answer: The [name of state] Trust Code, which applies to all trusts in [state] except to the extent the trustees powers are expanded or limited by the settlor, gives broad fiduciary powers. Specifically, the Trust Code expressly authorizes a trustee [to do whatever the question involves]. > Exception: there are two situations where the answer is No, the trustee does not have the power to do this. : (1) Self-Dealing, and (2) imprudent investment not w/in the UPIA.

VIII.

IX.

under the Trust Codes of most states: Majority Rule if there are two or more trustees, absent contrary provision, majority rules. In a few states: actions of co-trustees must be unanimous . Judicial Modification and Termination of Trusts Upon petition of trustee or beneficiary, court may order that the trustee be changed, that the trust terms be modified, that the trustee be directed to do acts that are not authorized, or prohibited from doing acts that are required by trust, or that the trust be terminated: (a) If the purposes of the trust or any provision thereof: have been fulfilled; or have become illegal or impossible to fulfill; (b) Changed circumstances: because of circumstances not known to or anticipated by the settlor, the modification or termination order will further the accomplishment of trust purposes; (c) Achievement of tax purposes: the modification or termination is necessary or appropriate to achieve the settlors tax objectives A termination may be ordered if continuance of the trust is not necessary to achieve any material purpose of the trust; and modification or termination can be ordered if it is not inconsistent with a material purpose of the trust. Powers of Appointment