Revocable Trust That Creates a Spendthrift Trust
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Spendthrift Trusts - in General
SMU Law Review Volume 3 Issue 2 Article 8 1949 Spendthrift Trusts - In General R. W. Woolsey Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation R. W. Woolsey, Note, Spendthrift Trusts - In General, 3 SW L.J. 198 (1949) https://scholar.smu.edu/smulr/vol3/iss2/8 This Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. SOUTHWESTERN LAW JOURNAL [Vol. 3 SPENDTHRIFT TRUSTS IN GENERAL BY the general rule the beneficiary of a trust may alienate his interest freely. He may transfer this interest in part or in whole, inter vivos or by will, for consideration or without. A cestui que trust is possessed of the ability to transfer his equitable interest to the same extent that he has the power to transfer a comparable legal interest.' Furthermore, the cestui's creditors may cause an involuntary alienation of his interest in order to satisfy the the debts by him to them.2 Therefore, the interest is not only volun- tarily transferable, but also involuntarily transferable; that is, it is susceptive to execution to satisfy the claims of the beneficiary's creditors. A settlor or donor of a trust is often desirous of providing a fund in order to maintain the beneficiary and to protect the fund against a beneficiary's improvidence or incapacity. The settlor thus wishes to create a trust with provisions restricting the aliena- tion of the trust fund by the voluntary act of the beneficiary, or involuntarily, by the beneficiary's creditors. -
Partial Spendthrift Trusts
Volume 50 Issue 3 Dickinson Law Review - Volume 50, 1945-1946 3-1-1946 Partial Spendthrift Trusts William G. Williams Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation William G. Williams, Partial Spendthrift Trusts, 50 DICK. L. REV. 79 (1946). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol50/iss3/1 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. Dickinson Law Review Published October, January, March and May by Dickinson Law Students Vol. L. March, 1946 Number 3 Subscription Price $2.00 Per Annum 75 Cents Per Number EDITORIAL STAFF WILLIAM G. WILLIAMS, Editor in Chief JOHN L. BIGELOW, Associate Editor HARRY SPEIDEL, Associate Editor WALTER H. HITCHLER, Faculty Edtior BUSINESS STAFF GEORGE R. LEwis, Business Manager ROBERT S. SMULOWITZ, Assistant Manager HENRY LANKFORD, Assistant Manager JOSEPH P. MCKEEHAN, Faculty Manager PARTIAL SPENDTHRIFT TRUSTS by William G. Williams A spendthrift trust is a trust in which both voluntary and involuntary alienation are restricted, i.e., the benefiiciary cannot assign his interest (voluntary alienation) and the beneficiary's creditors cannot attach his interest for his debts and liabilities (involuntary alienation). Or, as stated in In re Keeler's Estate, 3A. (2d) 413 (Pa.), a spendthrift trust "exists where there is an express provision forbidding anticipatory alienation and attachments by creditors." In case of a legal life estate it is the general rule that a direct restraint upon alienation, vol- untary or involuntary, is invalid; but in most jurisdictions, the settlor of a trust may impose both of these restraints upon the equitable estate and they will be given effect, at least where there is provision, express or implied, against both. -
Support Claims of the Wife and the Spendthrift Trust Interest of the Husband-Beneficiary
Volume 51 Issue 1 Dickinson Law Review - Volume 51, 1946-1947 10-1-1946 Support Claims of the Wife and the Spendthrift Trust Interest of the Husband-Beneficiary John L. Bigelow Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation John L. Bigelow, Support Claims of the Wife and the Spendthrift Trust Interest of the Husband-Beneficiary, 51 DICK. L. REV. 1 (1946). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol51/iss1/1 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. Dickinson Law Review Published October, January, March and June by Dickinson Law Students Vol. LI OCTORER, 1946 NUMBER I Subscription Price $2.00 Per Annum 75 Cents Per Number EDITORIAL STAFF BUSINESS STAFF W. RICHARD ESIIELMAN ..... Editor.in.Chiel HOWARD L. WILLIAMS .... Business Manager FRED T. CADMUS, III ....... Assistant Editor J. IRVING STINEMAN ...... Assistant Manager HARRY W. SPEIDEL ........ Assistant Edito, ANDREW L. HERSTER, JR., . Assistant Manage, ROBERT L. RUBENDALL ...... Assistant Editor WM. S. LIVENGOOD, JR., Assistant Manager ROBERT RUBENDALL ........ Assistant Editor JAMES D. FLOWER ....... Assistant Manage, TOM H. BIETSCH. .......... Assistant Editor WALTER H. HITCHLER ....... Faculty Editor JOSEPH P. McKEEHAN ..... Faculty Manager SUPPORT CLAIMS OF THE WIFE AND THE SPENDTHRIFT TRUST INTEREST OF THE HUSBAND-BENEFICIARY By John L. Bigelow In the recent case of Lippincott v. Lippincott,' the Supreme Court of Pennsyl- vania, through Mr. Justice Drew, said: "It is now firmly settled not only by our decisions, but also under our Statutes, that as to claims for maintenance and support of deserted and neglected wive, not divorced, spendthrift trusts are invalid in this Commonwealth." This unequivocal excerpt hints that such was not always the law. -
Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives
Washington University Law Review Volume 73 Issue 1 January 1995 Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives Adam J. Hirsch Florida State University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Estates and Trusts Commons, and the Law and Economics Commons Recommended Citation Adam J. Hirsch, Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives, 73 WASH. U. L. Q. 1 (1995). Available at: https://openscholarship.wustl.edu/law_lawreview/vol73/iss1/1 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Law Quarterly VOLUME 73 NUMBER 1 1995 ARTICLES SPENDTHRIFT TRUSTS AND PUBLIC POLICY: ECONOMIC AND COGNITIVE PERSPECTIVES ADAM J. HIRSCH" TABLE OF CONTENTS INTRODUCTION .. .................................... 1 I. VOLUNTARY ALIENATION ............................. 9 A. Economic Perspectives ........................... 9 B. The Psychology of Saving ......................... 17 C. The Psychology of Inheritance ...................... 33 D. The Problem of Paternalism ....................... 44 II. INVOLUNTARY ALIENATION .......................... 56 III. EXCEPTIONS .................................... 72 CONCLUSION ........................................ 92 -
In the United States Bankruptcy Court for the Eastern District of Tennessee
IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TENNESSEE In re Case No. 98-33204 STEPHEN WELLS WACHTER Debtor ANN MOSTOLLER, TRUSTEE Plaintiff v. Adv. Proc. No. 04-3010 STEPHEN WELLS WACHTER, CHARLES M. KNOWLES, TRUSTEE, and LEILA RAMEY KNOWLES, TRUSTEE Defendants PUBLISHED: Mostoller v. Wachter (In re Wachter), 314 B.R. 365 (Bankr. E.D. Tenn. 2004) IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF TENNESSEE In re Case No. 98-33204 STEPHEN WELLS WACHTER Debtor ANN MOSTOLLER, TRUSTEE Plaintiff v. Adv. Proc. No. 04-3010 STEPHEN WELLS WACHTER, CHARLES M. KNOWLES, TRUSTEE, and LEILA RAMEY KNOWLES, TRUSTEE Defendants MEMORANDUM ON MOTIONS FOR SUMMARY JUDGMENT APPEARANCES: JENKINS & JENKINS ATTORNEYS, PLLC Edward J. Shultz, Esq. 800 South Gay Street Suite 2121 Knoxville, Tennessee 37929 Attorneys for Plaintiff EGERTON, McAFEE, ARMISTEAD & DAVIS, P.C. William W. Davis, Jr., Esq. Post Office Box 2047 Knoxville, Tennessee 37901 Attorneys for Defendants RICHARD STAIR, JR. UNITED STATES BANKRUPTCY JUDGE The Plaintiff, Ann Mostoller, Trustee, filed the Complaint initiating this adversary proceeding on January 22, 2004, seeking a determination that a distribution to be received by the Debtor pursuant to the terms of a spendthrift trust is property of his bankruptcy estate and, accordingly, subject to turnover to the Plaintiff. Presently before the court are the following, both filed on June 1, 2004: (1) the Plaintiff’s Motion for Summary Judgment; and (2) the Motion for Summary Judgment filed by the Defendants. Both Motions are supported by memoranda of law, as required by E.D. Tenn. LBR 7007-1. -
Uniform Trust Code
D R A F T FOR DISCUSSION ONLY UNIFORM TRUST CODE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS MARCH 10, 2000 INTERIM DRAFT UNIFORM TRUST CODE WITHOUT PREFATORY NOTE AND COMMENTS Copyright © 2000 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. UNIFORM TRUST CODE TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS AND DEFINITIONS SECTION 101. SHORT TITLE. ............................................................ 1 SECTION 102. SCOPE. ................................................................... 1 SECTION 103. DEFINITIONS. ............................................................. 1 SECTION 104. DEFAULT AND MANDATORY RULES. ...................................... 4 SECTION 105. QUALIFIED BENEFICIARIES. ............................................... 5 SECTION 106. NOTICE. .................................................................. 5 SECTION 107. COMMON LAW OF TRUSTS. ................................................ 6 SECTION 108. CHOICE OF LAW. ......................................................... -
Uniform Trust Code Final Act with Comments
UNIFORM TRUST CODE (Last Revised or Amended in 2010) Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-NINTH YEAR ST. AUGUSTINE, FLORIDA JULY 28 – AUGUST 4, 2000 WITH PREFATORY NOTE AND COMMENTS Copyright © 2000, 2010 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS April 10, 2020 1 ABOUT NCCUSL The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 114th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Conference members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical. $ NCCUSL strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states. $ NCCUSL statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government. $ NCCUSL keeps state law up-to-date by addressing important and timely legal issues. $ NCCUSL’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states. -
Trustee Liability for Spendthrift Trust Assignments
Washington and Lee Law Review Volume 18 | Issue 2 Article 12 Fall 9-1-1961 Trustee Liability For Spendthrift rT ust Assignments Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Estates and Trusts Commons Recommended Citation Trustee Liability For Spendthrift rT ust Assignments, 18 Wash. & Lee L. Rev. 283 (1961), https://scholarlycommons.law.wlu.edu/wlulr/vol18/iss2/12 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. i96i] CASE COMMENTS TRUSTEE LIABILITY FOR SPENDTHRIFT TRUST ASSIGNMENTS The once highly controversial issue concerning the validity of the spendthrift trust is no longer open, except in a very few American jurisdictions.' Support for the view favoring such trusts has been the argument that one owning property ought to be able to dispose of it as he sees fit, and except in a small minority of jurisdictions,2 either by statute3 or by decision, 4 a spendthrift trust has been held valid. Moreover, this particular trust device appears to be one that is becoming more and more regulated by statute.5 In fact many of the jurisdictions upholding the validity of the spendthrift trust have done so because of the validity of restraints on the alienation of equitable interests such as those appearing in spendthrift trusts. -
Colorado Estate Planning Handbook
LIST OF CHAPTERS VOLUME 1 Chapter 1 ESTATE PLANNING Louisa M. Ritsick, Esq. Chapter 2 ETHICAL ISSUES IN ESTATE PLANNING James R. Walker, Esq. Chapter 3 ENGAGEMENT LETTERS Constance Tromble Eyster, Esq. Chapter 4 NONPROBATE TRANSFERS Josie M. Faix, Esq. Chapter 5 JOINT TENANCY Carl G. Stevens, Esq. Chapter 6 INTER VIVOS GIFTS Mark D. Masters, Esq. Chapter 7 UNMARRIED COUPLES Elizabeth A. Bryant, Esq. Erica L. Johnson, Esq. Chapter 8 ELDER LAW CONSIDERATIONS FOR ESTATE PLANNING Kerri L. Klein, Esq. Chapter 9 PROTECTED PERSONS Magistrate (Retired) Sandra Franklin M. Carl Glatstein, Esq. Chapter 10 POWERS OF ATTORNEY Thomas A. Rodriguez, Esq. Chapter 11 ADVANCE DIRECTIVES Michael A. Kirtland, J.D., LL.M., CELA Chapter 12 HIPAA ISSUES IN ESTATE PLANNING Michael A. Kirtland, J.D., LL.M., CELA Catherine Anne Seal, J.D., LL.M., CELA Chapter 13 RESERVED (12/17) TOC-1 Orange Book Handbook: Colorado Estate Planning Handbook Chapter 14 PRINCIPLES OF WILLS David K. Johns, Esq. Chapter 15 FIDUCIARIES Paul M. Smith, Esq. Chapter 16 PERSONAL PROPERTY Abby C. Boyd, Esq. Jonathan A. Lehmann, Esq. Chapter 17 REAL PROPERTY R. Sterling Ambler, Esq. (1931-2004) Matthew L. Trinidad, Esq. Chapter 18 POWERS OF APPOINTMENT Jessica L. Broderick, Esq. Chapter 19 ADMINISTRATIVE POWERS Sumi Lee, Esq. (Chapter Review, 2017) Chapter 20 DRAFTING AND INTERPRETATION OF DISCRETIONARY DISTRIBUTION STANDARDS Carol Warnick, Esq. Kelly Dickson Cooper, Esq. Rebecca Klock Schroer, Esq. Chapter 21 CONTRACTS TO WILL David M. Swank, Esq. Chapter 22 RESERVED Chapter 23 TESTAMENTARY TRUSTS David A. Turner, Esq. Chapter 24 INTER VIVOS TRUSTS Walter M. Kelly II, Esq. -
Article 5. Creditors' Claims; Spendthrift and Discretionary Trusts. § 36C-5-501
Article 5. Creditors' Claims; Spendthrift and Discretionary Trusts. § 36C-5-501. Rights of beneficiary's creditor or assignee. (a) Except as provided in subsection (b) of this section, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to that relief as is appropriate under the circumstances. (b) Subsection (a) of this section shall not apply, and a trustee shall have no liability to any creditor of a beneficiary for any distributions made to or for the benefit of the beneficiary, to the extent that a beneficiary's interest is protected or restricted by any of the following: (1) A spendthrift provision. (2) A discretionary trust interest as defined in G.S. 36C-5-504(a)(2). (3) A protective trust interest as described in G.S. 36C-5-508. (2005-192, s. 2; 2007-106, s. 19.) § 36C-5-502. Spendthrift provision. (a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer of a beneficiary's interest. (b) A term of a trust providing that the interest of a beneficiary is held subject to a "spendthrift trust", or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest. (c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this Article, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before its receipt by the beneficiary. -
The Rights of Creditors of Beneficiaries Under the Uniform
The University of Akron IdeaExchange@UAkron Akron Law Publications The chooS l of Law January 2002 The Rights of Creditors of Beneficiaries under the Uniform Trust Code: An Examination of the Compromise Alan Newman University of Akron School of Law, [email protected] Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/ua_law_publications Part of the Estates and Trusts Commons Recommended Citation Alan Newman, The Rights of Creditors of Beneficiaries under the Uniform Trust Code: An Examination of the Compromise, 69 Tennessee Law Review 771 (2002). This Article is brought to you for free and open access by The chooS l of Law at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Publications by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. The Rights of Creditors of Beneficiaries under the Uniform Trust Code: An Examination of the Compromise Alan Newman In the summer of 2000, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment the Uniform Trust Code (the “U.T.C.,” or the “Code”).1 Article 5 of the U.T.C. includes provisions addressing, among other things, the rights of creditors of trust beneficiaries to reach trust assets when the trust instrument includes a spendthrift clause or provides for distributions to be made to or for the benefit of the beneficiaries at the trustee‟s discretion.