Chapter 16: How to Conquer Trusts on the California Bar Exam

Trusts on the California Bar Exam

Trusts is regularly tested on the California Bar Exam, although less frequently in recent years. The California examiners frequently test the same issues, so it is worth knowing what these issues are.

Here, we tell you how to approach Trusts on the California Bar Exam, including some of the highly tested issues in Trusts questions.

Trusts on the California Bar Exam

1. First, know how Trusts is tested. 

On California Bar Exam essays, you should answer Trusts questions in accordance with general law unless the question asks you to answer according to California law. California law is similar to the majority law and the law of the Uniform Trust Code (UTC), which most states have adopted.

Trusts is almost always combined with another subject. It is most frequently combined with Wills.

2. Be aware of the highly tested issues. 

The California Bar Exam tests certain issues repeatedly in Trusts questions. (We have a nice summary of these in our California Bar Exam One-Sheets).

Some of the most highly tested Trusts issues on the essay portion of the California Bar Exam include the following:

• Trust validity: A trust is valid if the following elements are present: (1) it has a trustee, (2) it has a beneficiary, (3) it has trust property, (4) the settlor has the present intent and capacity to create a trust, and (5) the trust is created for a valid purpose. Remember that a trust will not fail if a specific trustee is not appointed or if the trustee refuses to serve. The court will simply appoint a trustee.

• Testamentary trusts: These are trusts created within a will. To be valid, the essential elements must be ascertained from (1) the terms of the will, (2) an existing writing incorporated by reference, or (3) the exercise of a power of appointment created in the will.

• Charitable trusts: a charitable trust may be created for the relief of poverty, or the promotion of education, religion, health, scientific, literary, benevolent, governmental, etc., purposes.

The doctrine of cy pres is frequently tested with charitable trusts. The doctrine of cy pres provides that if (1) a particular charitable purpose has become unlawful, impracticable, or impossible to achieve; (2) no alternative charity is named in the trust; and (3) the court finds that the settlor had general, rather than specific, charitable intent—then the trust will not fail. The trust property does not revert to the settlor or the settlor’s successors in interest and the court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor’s general charitable intent.

• Duties of a trustee: The duties of a trustee include the duty to administer the trust in accordance with its terms, the duty to account, the duty of care, and the duty of loyalty.

3. Be aware of key Trusts vocabulary. 

You should be familiar with key Trusts terms.

For example:

• Settlor: creates the trust
• Beneficiary: benefits from the trust
• Trustee: manages the trust
• Testamentary trust: a trust created by a will
• Pourover will: a will that gives a gift to a trust

Being familiar with key vocabulary will help you gain credibility with the grader and will help you maximize your California Bar Exam essay score!

4. Practice! 

The best way to excel at Trusts essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Trusts is tested and will help you master the highly tested issues.

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Trusts essay questions:

• February 2019 Trusts essay (combined with Wills and Community Property): This essay applies general law and covers revocable trusts and a creditor’s ability to reach trust property (see essay question #1 on the exam)
• February 2016 Trusts essay (combined with Wills although not classified as such): This essay applies general law and covers creation of trusts, pourover wills, A trustee’s refusal to serve, revocation of trusts, the duty of loyalty, the duty of care, the duty of prudence, the duty to account, the duty of impartiality, the Uniform Prudent Investor Act (UPIA), cotrustee standing, and when a beneficiary violates terms of a trust (see essay question #1 on the exam).
• February 2015 Trusts essay (combined with Wills): this essay applies California law and covers the creation of trusts, pourover wills, charitable trusts, and cy pres (see essay question #6 on the exam).
• July 2014 Trusts essay (combined with Community Property): this essay applies California law and covers creation of trusts, private trusts and charitable trusts, the duty of loyalty, the duty of care, the duty of impartiality, UPIA, cotrustee standing, and when a beneficiary violates terms of a trust (see essay question #5 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 17: Wills.

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