An express trust requires (1) present intent by the settlor to create a trust, (2) trust property, (3) beneficiary to enforce the trust, (4) trust purpose that is not contrary to public policy, (5) appointed trustee.
For example, a settlor can show intention to create the trust by providing in a will that one-half of his estate was to be held in a trust for ten years. The trust property is one-half of the person's estate
A testamentary trust will not fail for lack of a trustee, but failure to name a trustee may evidence lack of intent and prevent delivery of the trust property.
A trust is usually created for the care of one's family. If the trust has a charitable purpose, and a charitable purpose selected by the settlor is impractical, the court selects an alternative under the cy pres doctrine, meaning "as near as possible". The court must find a general charitable intent on the part of the settlor and ascertain the purpose. The courts consider the community at large the beneficiary of a charitable trust, and any particular individual eligible for its benefits has no standing to enforce the terms. The enforcement duty goes to the state attorney general.
The trust beneficiaries are the persons who receive property left to them when the settlor dies. Sometimes whether a beneficiary gets trust property when a settlor dies depends on whether the devise is characterized as general or specific. A general devise is one which refers only to the economic value of the property, while a specific devise describes a particular piece of property. A specific devise or bequest is adeemed if the specific property given is not part of the estate at the time of death. In California, ademption is dependent on the settlor's intent to adeem at the time he disposes of the specific property.
If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.
