Ct found this frustrated intent. Note: Congress settlor’s specifically authorized in 1993 special needs trusts to prevent ineligibility from public benefits in these types of cases. DOES SETTLOR REALLY MATTER? In Irrevocable trust, nobeneficiary matter (modern trend). In revocable trust, yes. CA PRESUMPTION IS TRUST IS REVOCABLE. CL presumption was irrevocable. Testamentary Trusts v. Inter Vivos Trusts Testamentary Trust: A trust contained in the will itself You can include a trust document as part of your will, then leave the rest and residue to fund the will Funding for the trust comes from the probate estate, so none of the assets to fund the trust will not avoid the time and expense of probate *Testamentary trusts do not avoid probate The difference between intervios trust and testamentary trust: (1) assets in intervivos trust avoid probate (2) testamentary trust, because its contained in the will of the decedent, are subject to the ongoing supervision of the probate court for as long as the trust is in operation must provide annual accounting (including accounting fees and legal fees to file the documents) you may have to seek court approval for the disposition of assets therefore, a testamentary trust is more expensive to maintain, operate, and viewed as less desirable than a trust that is not subject to ongoing court supervision Pour Over Will Pour-Over Wills: Pour over wills pour over left in estate into a trust what’s T’s that has been completely unfunded or partially funded during lifetime T’s (“The rest and residue I leave to the trustee of my trust”) Pour-Over Wills Create a Testamentary Trust (unless funding occurs before death) because the trust is funded and created at death. settlor’s Everything put in the pour over trust after death must go through probate: Even if the trust was created and funded while settlor/T was alive, everything pouring into the trust from the will must necessarily go through probate Validation: Traditional Theories of Law Validating Pour-Over Wills Incorporation by Reference: The three traditional elements of incorporation by reference (will IDs a document existing outside the will, clear intent to incorporate document, document already in existence)
Ct found this frustrated settlor’s intent. Note: Congress specifically authorized in 1993 special needs trusts to prevent ineligibility from public benefits in these types of cases. DOES SETTLOR REALLY MATTER? In Irrevocable trust, nobeneficiary matter (modern trend). In revocable trust, yes. CA PRESUMPTION IS TRUST IS REVOCABLE. CL presumption was irrevocable. Testamentary Trusts v. Inter Vivos Trusts Testamentary Trust: A trust contained in the will itself You can include a trust document as part of your will, then leave the rest and residue to fund the will Funding for the trust comes from the probate estate, so none of the assets to fund the trust will not avoid the time and expense of probate *Testamentary trusts do not avoid probate The difference between intervios trust and testamentary trust: (1) assets in intervivos trust avoid probate (2) testamentary trust, because its contained in the will of the decedent, are subject to the ongoing supervision of the probate court for as long as the trust is in operation must provide annual accounting (including accounting fees and legal fees to file the documents) you may have to seek court approval for the disposition of assets therefore, a testamentary trust is more expensive to maintain, operate, and viewed as less desirable than a trust that is not subject to ongoing court supervision Pour Over Will Pour-Over Wills: Pour over wills pour over what’s left in T’s estate into a trust that has been completely unfunded or partially funded during T’s lifetime (“The rest and residue I leave to the trustee of my trust”) Pour-Over Wills Create a Testamentary Trust (unless funding occurs before death) because the trust is funded and created at settlor’s death. Everything put in the pour over trust after death must go through probate: Even if the trust was created and funded while settlor/T was alive, everything pouring into the trust from the will must necessarily go through probate Validation: Traditional Theories of Law Validating Pour-Over Wills Incorporation by Reference: The three traditional elements of incorporation by reference (will IDs a document existing outside the will, clear intent to incorporate document, document already in existence)