NEW YORK TRUSTS I.

Overview of Material Tested A trust is an arrangement for making gifts of property and for the management of assets under which the trustee holds legal title to the assets for the benefit of beneficiaries. The trustee has legal title and the burdens of ownership (duty to manage, safeguard, invest, etc.) and the beneficiaries have equitable title and all the benefits of ownership. A. Express Trusts 1. Private Trusts - Definition: A private trust is the most basic trust, established by the settler (creator) for named beneficiaries of the trust. Charitable Trusts - Definition: A charitable trust is a trust established for charitable purposes that does not benefit identifiable individuals (e.g.,the trustee shall pay all trust income to X law school forever) Lifetime Trusts - Trusts created during the settlors lifetime, i.e., an inter vivos trust. Lifetime trusts are non-court trusts, which means that no court is involved in the trusts creation. Testamentary Trusts Trusts created by will at the settlors death. Testamentary trusts are court trusts which arise in probate proceedings in the Surrogates Court. Honorary Trusts Trusts benefiting non-humans which are performed at discretion + choice of trustee

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5. B.

Implied Trusts (trusts imposed by law) 1. Constructive Trusts - A constructive trust is NOT a true trust. Constructive trust is the name for a flexible equitable remedy designed to disgorge unjust enrichment that results from wrongful conduct. Resulting Trusts - A resulting trust is NOT a true trust. It is the label for a trust that fails for some reason.

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Other Trust Arrangement --- trust like relationships 1. 2. 3. Joint Bank Accounts with Right of Survivorship Totten Trusts Custodial Gifts to Minors REQUIREMENTS FOR A TRUST

Three things using the name trust: 1. 2. 3. Express trusts: The express trust is the only real trust; other two are just equitable remedies. Resulting trusts Constructive trusts

EXPRESS TRUST: Allow owner of property to make transfers of property + to have those assets managed on behalf of someone - Two kinds of express trusts: a. Lifetime trusts, set up during the lifetime of the person who created the trust, who we call the settler of the trusts (also called an inter vivos trust). b. Testamentary trust, set up in the settlors will Requirements for a Valid (lifetime) Trust To have a valid trust: 1. 2. 3. 4. 5. 6. settlor (also called the grantor or creator) who makes a Delivery of legal title to Property (also called the res, or corpus, or principal) to a trustee who holds legal title for the benefit of beneficiaries with intent to create a trust for a lawful purpose.

Additional requirements for a valid trust: must be in a writing which is signed by both the settlor and trustee and either: 1

 acknowledged before a notary public or  signed by two witnesses. No consideration is required to create a trust. 1. 2. Settlor - Must be over age 18; must have capacity to enter into contracts, transfer title. Delivery Title assets must be formally transferred for delivery to be valid. For lifetime trusts, settlor must formally transfer legal title to the specific property. In creating a lifetime trust, assets evidenced by a document of title (e.g., real estate, stocks), legal title must be formally transferred to the trustee (whether the trustee is a third party or the settlor himself.) [No title transfer requirements for testamentary trusts.] For other assets, transfer must be by a written assignment to the trustee. o Hypo: Sarah, a personal injury attorney in Manhattan, signed a trust agreement naming her friend Tom as trustee and her children Betty and Ben as beneficiaries. The trust agreement was properly notarized. The agreement recited the property of trust as shares of stock in various corporations, and recited that the trustee acknowledged receipt of shares. The stock certificates were handed over to Tom by Sarah at time trust document was signed and acknowledged. Before shares could be re-registered in Trustee Toms name, Settlor Sarah died. Is the trust valid? No, delivery of res needs to be formal, it needs to be on the books of the corporation.

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Property/Res - The subject matter of the trust. The property can be almost anything, but must be property the settler then owns, not a mere expectancy of ownership. o Hypo: Sams mother Teresa executed will leaving her farm to him. Sam delighted that he would get farm when mother died, + decided to create a trust. He executed a trust naming himself as trustee + his sons Bob + Barry as beneficiaries. Sam executed deed to himself, as trustee w/income to be paid Bob + Barry for life, w/principal then going to granddaughter Marie. Teresa approved of this b/c she greatly loved Marie + thought that this would preserve farm for Marie to own 1 day own. Is this a valid trust? No, Sam has no ownership in farm. To have a trust, there must be specific identifiable property in the trust, not subject to future determination Hypo: Sim created a trust to be funded with whatever money or property that I may choose to contribute to the trust over the next ten years. Is this a valid trust? No, must be definite.

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Trustee For a lifetime trust, almost anyone can be a trustee since no court involvement is needed for lifetime trusts. o For a testamentary trust, created under court supervision, anyone can be a trustee EXCEPT for:  Those under 18  Incompetents  Convicted felons  Those incapable because of drunkenness, dishonesty, want of understanding, improvidence, nonresident aliens. Non-resident aliens can serve as trustee IF: (exceptions for nonresident alien)  is related to the decedent (either decedents psise, the grandparent or descendant of the grandparent of decedent or decedents spouse, or the spouse of any of them), AND  NY resident serves as co-fiduciary Failure to name a trustee in the trust does not matter; the court can appoint someone.  Hypo: Mother Jones executed a will that created a trust to pay the income from the trust to her son Barry for life, and on his death the principal was to go to her granddaughter Betsy. No trustee was named in the will. A valid trust? Yes, doesnt fail for lack of trustee.

Ascertainable Beneficiaries - For private, non-charitable trusts, beneficiaries must be definite and ascertainable; no ambiguity. If ambiguous trustee holds on a resulting trust for the residuary beneficiary. y Hypo: Stephens will created a trust, giving $4 million worth of IBM stock to his friend Ted, as trustee, to pay the income for life to my very best friends, and to pay the residuary to his sister Barbara. Does the trust fail? Yes because the income beneficiaries are not definite and ascertainable. Does Ted get to keep the money? No. He holds on a resulting trust for Barbara. Best friends too vague. We do not permit oral evidence to identify trust beneficiaries. Must be identified in the trust. Beneficiary listed as someones family or next of kin IS considered definite and ascertainable and the trust does not fail; consult the intestacy statutes for the names of the persons who fit the description in the trust. 2

Hypo: Stephens will created a trust, giving $4 million worth of IBM stock to his friend Ted, as trustee, to pay the income to my family, and to pay the residuary to his sister Barbara. Is it ok? Yes.

Intent Settlor must intend to create an enforceable obligation; precatory language is not enough. Must be mandatory language. y y y Precatory words: non-binding suggestion (settlor asks, requests, hopes, wishes + desires, would like) > non-binding. Trustee must be given duties to perform; if trustee has no duties it is called a passive trust, which is no trust at all. Hypo: June gives 250K in cash to her oldest daughter Mary, in trust, with the statement that the trust income is to be paid to her youngest son, Sam, for life, with the residuary going to Sams son Charles. Is this a valid trust? Yes. Trust income to be paid shows an intent to create an enforceable obligation. Hypo: June gives 250K in cash to her oldest daughter Mary, in trust, with the statement that she would like the trust income to be paid to her youngest son, Sam, for life, with the residuary going to Sams son Charles. Is this a valid trust? No. The language would like is precatory language and does not impose an enforceable obligation. Hypo: June gives 250K in cash to her oldest daughter Mary, in trust, with the statement that she requests the trust income to be paid to her youngest son, Sam, for life, with the residuary going to Sams son Charles. Is this a valid trust? No. A request is just precatory language and does not impose an enforceable obligation. Hypo: June gives 250K in cash to her oldest daughter Mary, in trust, with the statement that her wish and desire is that the trust income is to be paid to her youngest son, Sam, for life, with the residuary going to Sams son Charles. Is this a valid trust? No. Wish and desire is precatory language and does not impose an enforceable obligation. Hypo: Bob transfers Balackacre to Karen, as trustee, for the benefit of Bobs daughter Mary. Under the parties written, signed and acknowledged agreement, Mary has power to manage and control use of Blackacre, and Karen as trustee has no powers or active duties over the property. Is this a valid trust? No, because it is a passive trust.  y Just because the word trust is used that does not show an intent to create a trust; look at all language and all the facts to determine intent.

Hypo: Samantha purchased Whiteacre in 2005, and deed was made to Samantha in trust for Susan. At the time of deed, Samantha + Susan agreed in writing that Susan would live on Whiteacre + pay $1K a month rent to Samantha. Is this a valid trust? No. All facts indicate that Samantha really intended a landlord tenant relationship w/Susan.

Lawful Purpose - Trusts must have a lawful purpose. A trust cannot call for commission of a crime or tort. A trust cannot call for the destruction of property. if it calls for destruction of property, or when its terms are against public policy. When a condition is unlawful, the condition is unenforceable. y Hypo: In his will Sam created a testamentary trust naming his son Seth as trustee. In the trust language Sam said the following: I hated growing up in my family home and every day I lived there was pure misery. I direct the trustee to tear down the house and give the wooden boards to the local college for the annual homecoming game bonfire. The vacant land was then to go to the residuary beneficiary. Is this a valid trust? No Trusts cannot have condition against public policy; major example on exam: totally restricting on a first marriage/encouraging divorce ---bar favors Hypo: Ralph created a testamentary trust in his will, and he directed the trustee to pay the income to his daughter Mary Ann until she divorced her worthless husband Archie, and upon her divorce the trust shall terminate and all principal shall be distributed to Mary Ann. If MA should not divorce Archie then on her death the trustee shall distribute the principal to the American Red Cross. Is this a valid trust? No, because it promotes divorce. But if a purpose can be found that is not offensive to public policy then it is valid; trust that gave income to spouse until that spouse remarries is OK. Hypo: In his will James set up a testamentary trust with income going to his wife for life or until she remarries, and upon his wifes death or remarriage to his son Clyde. Is this a valid trust? Yes, because his purpose was to provide for his widow during her widowhood and that is a valid purpose. Marriage restriction to members of a certain religion or ethnic group are valid.  Hypo: In will Jerrold set up a testamentary trust w/principal going to my son Jeremy providing he marries a Jewish woman w/in 7 years after my death. If he does not do so trust principal shall be paid to State of Israel. Is valid trust? Yes, b/c condition is only a partial restraint on marriage, still has a fairly wide choice 3

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TYPES OF TRUSTS REVOCABLE LIFETIME TRUSTS The main requirement: at least one beneficiary who is not the settler; who cannot be the only beneficiary. The settler can play many roles: 1. 2. 3. 4. y Settler can be trustee Settler can be income beneficiary for life Settlors estate can be one of the beneficiaries of the principal so long as there is at least one other beneficiary Settler can retain the power to terminate or amend the trust

Hypo: Susan executed a document, duly acknowledged before a notary public, stating the following: I am hereby creating a trust and hereby transfer $1.5 million to myself as trustee, to pay the income for life to myself and upon my death to transfer the principal to my son Bobby and my daughter Barrfy in equal shares. I hereby retain the right to revoke this trust at any time prior to my death. Is this a valid trust? Yes Manages assets efficiently, particularly using a professional trustee. Helps plan for possible incapacity by avoiding guardianship Avoids probate No part of the principal of a trust goes through the settlors estate in probate

Reasons to have a revocable lifetime trust: 1. 2. 3.

Reasons NOT to have a revocable trust: does not avoid taxes If a settler keeps an income interest, or keeps a power to revoke the full trust assets will be included in the settlors estate for federal estate tax purposes

Testamentary gifts to an existing revocable trust are OK This is called a pour-over gift Such a gift avoids will formalities in the trust Trust can be changed during lifetime somewhat easier than changing a will

Key requirement for a pour-over gift to a trust to be valid: the trust must be in existence or executed concurrently with the will. y Hypo: Roger executed his will on 1/3/2004. In the will, he provided that the bulk of his estate would go to a trust that would pay the income to his daughter Abigail for life, with the principal then paid to her son Steve. His lawyer had drafted the trust document the week before and failed to have Roger execute it at the time of the will execution. When Rogers lawyer discovered that Roger had not executed the trust document at the time of the will execution he called Roger and had him return to execute the trust document. The trust document was executed on January 10th. IS the pourover gift to the trust valid? No. Because the trust was not executed before or currently with the will.

Two minor points: 1. 2. Pour-over is not limited to trusts created by the settler but can be to any existing trust, included those executed by other persons. Pour-over gifts are valid even if the trust was unfunded, or only partially unfunded, during settlers lifetime.

Life insurance proceeds: There are 2 ways an insured can make life insurances proceeds payable to a trust: 1. 2. Insured can create an unfunded revocable insurance trust and name the trustee of the trust as policy beneficiary Have the trust be a testamentary trust and name the trustee named in my will as beneficiary TOTTEN TRUSTS Totten trust is a bank account in depositors name titled [Depositor], in trust for [Beneficiary] (ITF often used for in trust for)

Proceeds of savings accounts or pension plans can be handled the same way.

Hypo: Mary Smith opened a bank account at First National Bank, and the account name is Mary Smith as trustee for John Smith. This is a totten trust account.

Two key things to remember about Totten trust accounts: 1. 2. Depositor makes deposits and withdraws as he or she wishes during the depositors lifetime. Beneficiary has no beneficial interest during depositors lifetime, but gets whatever is in account when depositor dies.

Other Totten Trust issues: No particular words are required to create a totten trust account. o Hypo: Depositor opened an account which was entitled John Cohen ITF Rose Cohen. Is this a Totten trust account? Yes, ITF is enough Four ways of Revoking the Totten Trust: o Withdraw all the money in the account o Express revocation during lifetime by depositor making a wirting naming the beneficiary and the financial institution and having the revocation notarized and delivered to the bank  Hypo: Sophie decided to revoke a totten trust account she had set up for her daughter Marie. She sent a note to the bank, giving the account number, and said she wanted to revoke the trust account and change it to a regular account. She mentioned that the account was in her name as trustee for Marie. Was this a valid revocation? No, because the note was not notarized o Revocation in a will; must comply with same requirements for revocation during lifetime.

Death of beneficiary; money in the account goes free and clear to depositor.

Change of beneficiary can be made by depositor, but it must be done the same way as a revocation: notarized statement, sent to the financial institution, naming the old beneficiary and the new one. Creditors of the depositor can always reach the TT account balance, either before or after the depositors death, since it is a form of revocable trust revoked partially each time a withdraw is made.

JOINT BANK ACCOUNTS THAT ARE NOT TOTTEN TRUSTS John and Jane with right of survivorship. Most popular issue is: after one of parties to account died can anyone block the $ from going to the survivor? Yes

If clear and convincing evidence shows that a survivorship was not intended when the account was established and that the account was opened only as a matter of convenience to the depositor then the survivorship language can be set aside. y This is a hard requirement to satisfy.

Each joint account holder owns one-half of the joint account, no matter who deposits the money and if one person makes the entire deposit it is considered a gift of one-half to the other account holder.

UNIFORM TRANSFERS TO MINORS ACT (UTMA) ACCOUNTS 3 reasons to make a gift to a minor under UTMA: 1. Avoids a guardianship 2. Avoids a trust 3. It qualifies for the 12K per done annual exclusion from federal and state gift tax. 6

Gifts under UTMA must be made to a custodian + it must specify that it is made under the NY Uniform Transfers to Minors Act.

Duties of custodian: 1. Hold, manage, and invest the property under a prudent investor standard 2. Pay over to the minor or for the minors needs what part of the property that the custodian deems advisable 3. Pay what is left of the property to the minor when the minor turns 21 UTMA does not create a trust; it is a special statutory conservatorship, where conservator does not hold legal title (minor holds that) If donor names himself or herself as custodian then the amount of the gift is includible in the custodians gross estate for federal and state estate taxes; if donor names someone else as custodian then the amount of the gift is not includible. Hypo: Ralph Donor opened a bank account in name of Ralph Donor as custodian for Randy Minor under NY UTMA. If Ralph dies, is amount in UTMA includible in Ralphs gross estate for estate tax purposes? Yes, b/c donor is custodian. Hypo: Suppose instead that Ralphs mother Ruth opened a bank account in the name of Ralph as custodian for Randy under the NY UTMA. If Ralph dies, is the amount in the UTMA account includible in Ralphs gross estate for estate tax purposes? No, b/c the donor is not the custodian

UTMA gifts can be made in a will, so long as the necessary language is used. CHARITABLE TRUSTS Five key things to remember:

1. Charitable trusts must have indefinite beneficiaries, and they must be a reasonably large group. Cannot have specific, named parties as beneficiaries.

But a trust for Masses for relatives is OK.

2. Charitable trust must be established for a charitable purpose (e.g., health, education, religion) 3. Charitable trusts may be perpetual. They are NOT subject to the Rule Against Perpetuities 4. Cy pres can be used to change the trust: y If the stated purpose of the charitable trust can no longer be accomplished, or the designated charity goes out of existence, court may use this to make the trust be as near as possible to what the settler wanted 5. The Attorney General has the duty of representing the beneficiaries of charitable trusts in the state. y The AG is an indispensible party to any suit on construction or enforcement of a charitable trust y The AG and the donor have standing to sue to enforce the trusts terms
NON-TRUSTS: These are called trusts, but they are NOT trusts: 1. Honorary trusts: where no human being is the beneficiary of a private (i.e., non-charitable) trust

- A private trust must have a human beneficiary. Exception: pet trusts- A valid pet trust can last for no more than 21 years.

Someone designated in will, or appointed by court, can enforce trust and make sure trusts purposes are carried out.

Exception: cemetery trusts- Trusts for the perpetual care and maintenance of cemeteries and burial plots are classified as charitable trusts, and thus are OK even though they have no human beneficiaries. y 2. Since they are called charitable trusts there is no RAP problem

Constructive trusts: just a flexible equitable remedy designed to disgorge unjust enrichment resulting from wrongful conduct. y Trustees only duty is to convey the property to the person who, in equity, should have the property.

Proof of facts necessary to establish a constructive trust must be by clear and convincing evidence.

The oral trust: where there is a deed of land by the grantor to grantee, but someone claims that grantee orally promised grantor that grantee would hold the land in trust for certain purposes of the grantor

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General rule on oral trusts: no constructive trust will be imposed to give effect to any alleged oral trust.

BUT, two exceptions: a constructive trust may be imposed where: Where there is fraud in the inducementIF clear and convincing evidence can be shown to prove that the grantee did in fact agree to hold the property in trust, and AT THE TIME OF AGREEMENT has no intention of carrying out the trust, then a constructive trust will be imposed to benefit the intend beneficiaries. a. Note two key requirements: i. Evidence that a trust was intended must be clear and convincing ii. Evidence must show that alleged trustee had no intention AT THAT time of carrying out agreement Where there is a confidential relationship between the grantor and grantee. a. oral agreement to hold property in trust can be shown to impose constructive trust for benefit of intended Bs b. Evidence of the oral agreement must be shown by clear and convincing evidence. 9

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Confidential relationship includes: Being in same family, Being a business partner, Attorney-client, Priestpenitent; Or similar close relationship

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Resulting Trust: not a trust, but is an equitable remedy y Purchase Money Resulting Trust (PRMT), recognized in the vast majority of states, but NOT NY y PRMT only arises when a purchaser buys property but has title put in someone elses name (not a relation); later purchaser claims no gift was intended and asks title holder for title to property and title holder refuses to give it up. y Most states find this situation to create PMRT which allows purchaser to compel tile holder to give up title; NOT NY

BUT, a NY exception to no-PMRT rule: if there is clear and convincing evidence that grantee had expressly or impliedly promised to re-convey land to purchaser, then a constructive trust can be imposed. 10

STATUTORY SPENDTHRIFT RULE AND PROTECTION FROM CREDITORS y y A spendthrift trust protects a trust beneficiarys interest from creditors by prohibiting voluntary or involuntary transfers of beneficiarys interest. New York not only allows spendthrift clauses in trusts, it has a special statutory rule that protects all income interests in trusts with spendthrift protection even if the trust instrument does not contain a spendthrift clause, but this just applies to income from the trust, not principal. To provide spendthrift protection to the residuary beneficiary (i.e., the one who gets the principal) the spendthrift clause must be expressly stated in the trust

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Typical spendthrift clause: No beneficiary of this trust shall have the power to assign his or her income interest, nor shall such interest be reachable by the beneficiarys creditors by attachment, garnishment, or other legal process. Effect of the spendthrift clause (statutory or expressly stated in the trust): keeps creditors at bay Five major Exceptions to statutory spendthrift rule : o Creditors who furnish necessities (food, clothing, shelter) o Child support and alimony o Federal tax liens o Express income beyond that needed for support and education  A last resort remedy: have to show all other possible remedies have been exhausted  What is needed for support is based on the life style of the beneficiary. o The 10% levy provided by CPLR 5205(e)

All creditors together share the levy: it is not 10% per creditor 11

o y

Is not used much in real life, but is often on the exam.

Big limitation on a spendthrift clause: it does not apply to any interest retained by the settler.

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Settlors cannot hide out from their own creditors, but they can protect other beneficiaries All revocable trust are fair game for settlors creditors; if settler can revoke a trust then it offers no protection at all against creditors of the settlor

MODIFICATION AND TERMINATION OF TRUSTS 1. Trust modification by trustee and/or beneficiaries:Is appropriate only when the objectives of the trust would be defeated or substantially impaired if the trust is not modified y The purpose of the trust comes first, overriding any specific directions in the trust.

Two Level Modification Test y y Find out the primary intent of the settler regarding trust purposes. Look at the specific directions in the trust instrument to determinewhether, because of changes in circumstances, those specific directions would now frustrate the primary intent of the trust; IF SO then those directions can be changed by court.

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The court can authorize the invasion of principal if the income is not enough to carry out settlors purpose of trust.

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Trust termination by the settler: Trusts are hard to terminate in NY; they are irrevocable and un-amendable unless the power to revoke and amend is expressly reserved in the trust instrument y EXCEPTION: a settler can terminate an irrevocable trust if all beneficiaries in being consent; this is often impossible because no one can give consent for any beneficiary who is a minor or who is incompetent

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Beneficiaries must be born alive to count; for purposes of trust termination child in gestation not regarded as person If a trust gives property to heirs or next of kin that interest is not considered a beneficial interest and thus no consent need be obtained from them

TRUST ADMINISTRATION 1. Trustees Powers 13

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y 2.

NY Fiduciary Powers Act controls; sets out powers that can be exercised by a trustee without court order and without express authorization in the trust FPA controls not only what a trustee of trust can do, but also what executor/administrator of decedents estate can do approach to trustees powers in NY: trustee can do almost anything w/some clearly-defined specific exceptions Trustee can: o Sell any real or personal property o Mortgage property o Lease property o Make ordinary repairs o Contest, compromise, or settle claims o Or do almost anything to manage the corpus of the trust Trustee CANNOT:Big three things: o Engage in self-dealing o Borrow money o Continue a business (w/o court order) Trustee is liable for losses incurred by the business unless trustee has court approval to continue the business

Self-dealing y The 5 prohibitions on self-dealing: o Trustee cannot buy or sell trust assets to himself or herself- ABSOLUTE rule, no wiggle room

Trustee cannot borrow from trust funds- Another absolute rule

Trustee cannot lend money to the trust- Another absolute rule  Any interest earned on such a loan must be returned to trust, and any interest given for loan is invalid o Trustee cannot profit from serving as trustee (except for appropriate trustee fees)  Trustee cant take advantage of confidential information received while trustee o Corporate trustee cannot buy its own stock as a trust investment The two affirmative duties on self-dealing: o Duty to segregate trust assets from personal assets  Remedy for this violation of this duty: y If commingled funds are used to buy an asset and the asset goes down in value, there is a conclusive presumption that personal funds were used y If the asset goes up in value there is a conclusive presumption that trust funds were used. o Duty to earmark trust assets by titling them in trustees name o

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Remedies for Breach of Fiduciary Responsibilities y Beneficiary can sue to remove the trustee y Beneficiary can ratify the transaction and waive the breach

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Beneficiary can sue for any loss- An action recover losses to the trust is called surcharge

NO FURTHER INQUIRY RULE y Breach of a fiduciary duty by engaging in self-dealing is an automatic wrong and no further inquiry need be made. o Good faith is not a defense o Reasonableness is not a defense ACTIONS AGAINST A 3RD PARTY WHEN TRUSTEE ENGAGES IN SELF-DEALING y If trustee engages in a prohibited transaction, such as self-dealing, and sells trust property to third party, beneficiary cannot sue purchaser of property from trustee if that purchaser was a bona fide purchaser for value w/o notice (BFP)

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y 6.

To keep purchaser from being a BFP and thus making the purchaser liable to the beneficiary, purchaser not only has to know that she was dealing with a trustee, but that the trustee was engaged in self-dealing

INDIRECT SELF-DEALING

Self-dealing rules also apply to loans or sales to a relative of the trustee, or to a business of which the trustee is an officer, employee, partner, or principal shareholder.

LIABILITY OF TRUSTEE IN CONTRACT AND TORT 1. Personal liability of trustee in contract y How trustee signed contract is key to determining liability; o If trustee signed only on behalf of trust, no personal liability o If trustee signed personally and merely mentioned trust, then personal liability

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Even if there is personal liability the trustee will be reimbursed by the trust if two things are satisfied: o The contract was within the powers of the trustee, AND o Trustee was acting in the course of proper administration of the trust

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Personal liability of trustee in tort y Trustee is personally liable on all torts of itself and its employees. o An absolute rule, no exceptions o Thats why a prudent trustee should immediately obtain liability insurance charging the cost to the trust. y The trustee can be reimbursed from the estate if 2 requirements are satisfied: o (i) trustee was acting within its powers when the tort was committed, and o (ii) the trustee was not personally at fault.

TRUSTEES INVESTMENT POWER y y y Trustee must manage the property of trust on behalf of beneficiary, and this means the investment of the corpus of trust. NY has adopted the Uniform Prudent Investor Act (UPIA); this gives a broad latitude to trustees to choose investments Trustee can pursue what UPIA calls the modern portfolio theory of investment, where the trustee creates a customtailored investment strategy for this particular trust o Two key factors to remember:  Trustee must consider the role each investment plays within the overall trust portfolio  Trustee must consider the expected total return from income and capital gain Trustee does not have to justify the prudence of each investment looked at by itself: can balance off risky speculative investments against safe, conservative investments o Specific things to remember  Prudence is not measured by hindsight; look at the decision to invest when made, not later; trustee does not have to have a crystal ball  Trustee can exercise adjustment power and allocate capital gains to income y Trustee can switch capital gains into the income category if necessary to protect the income beneficiary, and vice versa y End goal is fairness to all beneficiaries The key to the Uniform Prudent Investor Act is flexibility to shape the investment strategy for maximum total return, along with the flexibility to adjust income between the income and residuary beneficiaries to be fair to each of them 16

THE RULE AGAINST PERPETUITIES Definition of Rule: No interest is valid if it could vest later than any life in being at time of creation of interest, plus 21 years. y If there is any possibility, no matter how remote, that interest could vest later than lives in being plus 21 years is void

y y

An interest is vested when there is no condition that has to be satisfied and the exact identity of the taker is known NY has a perpetuities reform statute that automatically reduces all age contingencies to 21 years, thus saving the gift

RAP and Trust

Two additional points: o RAP does not apply to charitable trusts o NY does not follow the wait and see reform EXCEPT for powers of appointment  wait and see: takes into account the events happening after a grant is made to see if there actually was remote vesting or not  Power of Appointment: provision often found in trusts allowing the holder of the power the right to later determine who gets the property in the trust.  In NY, you look at the facts to see if the power was actually exercised during the time period of the rule; if so, no RAP violation

THE NEW YORK SUSPENSION RULE Definition of the rule: any interest is void if it suspends the power of alienation for a period longer than lives in being plus 21 years, that is, when there are no persons who could, together, transfer fee simple title.

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RECAP ON RAP AND THE SUSPENSION RULE RAP y y y y y Deals with vesting only Just says for an interest to be valid it must vest within lives in being at the time of the grant, plus 21 years Look at the facts to make sure there is no way the vesting could come outside the time period of the rule; if any chance of that then the interest is void RAP does not apply to charitable trusts No wait and see reform in NY, except for powers of appointment

SUSPENSION RULE y y Does not deal with vesting; is only concerned with the possible suspension of the ability to transfer a fee simple Look for facts to make sure there are persons identified and alive who could, together, convey a full fee simple; if you cant find such persons who could do this during lives in being plus 21 years, then the interest is void

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