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Trusts on the Multistate Essay Exam

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Trusts on the Multistate Essay Exam

Tips for Trusts on the Multistate Essay Exam

This time in our MEE tips series we address Trusts.  When thinking about Trusts on the Multistate Essay Exam, you should consider two questions. First, how is it tested? And how often is it tested?  In the last 10 years (20 administrations), we’ve seen Trusts on the Multistate Essay Exam 10 times.  However, it is not appearing as frequently as of late (and particularly, since the NCBE only started writing 6 questions for MEE states to choose from).  Since February 2013, we have only seen Trusts on the Multistate Essay Exam 3 times.  While it might be becoming less popular, it has still been a favorite subject of the Examiners in the past, so don’t dismiss it!

Tips for Trusts on the Multistate Essay Exam

Standard disclaimer: make sure you are preparing for all of the subjects! use statistics regarding the frequency we see Trusts on the Multistate Essay Examto determine how much to study for the subject, not whether to study for it at all.  Spend the most time on the subjects that are the most likely to come up.  But do not ignore any subject!

The most commonly tested topics in Trusts on the Multistate Essay Exam:

Validity

A trust of personal property is valid if it has a trustee, a beneficiary, and trust property.  A trustee manages the trust property and holds it for the benefit of the beneficiaries.  However, a trust will not fail for lack of a specifically-named trustee.  The court can appoint one.  A trust’s beneficiaries must be definite and ascertainable.  The same person cannot be both the sole trustee and the sole beneficiary.  The trust property, or trust res, must be identifiable.

Revocability

In many states, an inter vivos trust is revocable unless stated otherwise. However, an irrevocable trust can still be modified or terminated in some cases.   A settlor may terminate the trust if all beneficiaries are in existence and all agree.  After the settlor dies, an irrevocable trust can be terminated through unanimous consent of both the income beneficiaries and the remaindermen.  Additionally, there must be no material purpose of the trust yet to be performed.

Types of Trusts

A variety of different types of trusts have been tested in Trusts on the Multistate Essay Exam.

Pour-over Will

One type is a pour-over will, where a will makes a gift to a trust.  These types of provisions will be valid so long as the trust is identified in the will and the terms are incorporated in a writing executed before or concurrently with the execution of the will.  Under the modern approach, later-made amendments to the trust are valid. Under the common law, amendments made after the execution of the will are not valid.

Discretionary Trust

In a discretionary trust, the trustee has discretion to decide when to make a distribution to a beneficiary.  The beneficiary cannot demand any disbursements.  Neither can a creditor, except for child support or alimony in some states.  In a support trust, the trustee must pay what is necessary for the beneficiary’s support.  A spendthrift trust restrains both the voluntary and involuntary transfer of a beneficiary’s interest.  The only creditors that can reach a beneficiary’s distribution before it reaches the beneficiary are child/spousal support creditors, a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust, the state or the United States, or a creditor with a claim for necessaries (only some states recognize this exception).

Charitable Trust

The final type of trust tested in Trusts on the Multistate Essay Exam is a charitable trust, or a trust created for a charitable purpose. It must have a large number of not readily identifiable individuals.  This type of trust may be terminated if the charitable purpose becomes unlawful, impracticable, or impossible.  However, cy pres may save the trust.  If the purpose is no longer possible, no alternative charity is named in the trust, and the court determines that the settlor had a general rather than specific charitable intent, then cy pres can be applied to modify or terminate the trust.  This involves directing that the trust property be distributed in a manner consistent with the settlor’s general charitable intent.

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