(114) As noted above, an important advantage to
inter vivos trusts is that they can be funded during life and used to administer, invest, and distribute assets during and even after a settlor loses capacity.
Sieh, decedent husband created an
inter vivos trust prior to his marriage, retaining the power to revoke the trust.
The new law, says Lisle lawyer Neil Goltermann of Momkus McCluskey LLC, who assisted in drafting the legislation, means married couples will no longer have to forego the protections of holding property as tenants by the entirety to set up and fund
inter vivos trusts recommended for their estate plans.
All property included in the decedent's probate estate or made payable to the
inter vivos trust will be divided in accordance with the formula clause in the trust agreement.
Joy, in which the courts initially allowed
inter vivos trusts to serve as will-substitutes and create post-mortem transfers of property without a will.
2003) ("With the increase in the use of revocable
inter vivos trusts as will substitutes, no-contest clauses ...
The Delaware courts answered the question of a trust with a choice-of-law provision in another of the Peierls decisions, In re Peierls Family
Inter Vivos Trusts, 77 A.3d 249 (Del.
Total discretionary
inter vivos trusts (1) provide a variety of benefits.
This
inter vivos trust is revocable; Russ can always revoke the trust and repossess the property or change the terms of the trust.
American law is finally beginning to clarify and refine rules concerning capacity to create, amend, and revoke
inter vivos trusts, recognizing that the degree of capacity to create a revocable trust should be no higher than that to execute a will.(13) The creation of an irrevocable
inter vivos trust should depend on whether the trust is purely donative, in which case a gift standard is appropriate,(14) or whether it is part of a negotiated or adversary transaction, for which the higher contract standard would be appropriate.(15)
Further, the draft Act allows for the revocation of a revocable
inter vivos trust by will.(158)
8843004, the decedent bequeathed his entire estate to an existing
inter vivos trust. The trust provided that 50% of the net income was to be paid to the surviving spouse, with the remaining income payable to the surviving spouse at the trustees' discretion.
