Four Main Requirements for a Valid Will

 A will is one of the most formal legal documents that exists in the modern legal system. The will represents the wishes of a person who is no longer living. The law requires a great deal of formalities in order for it to be valid. The will has standards that it needs to follow for the drafting, execution, and finalization of the instrument. If the will does not adhere to the standards then it would not be valid. Any person that is named in the will, or any intestate heir of the decedent can challenge the validity of the instrument that is presented in the probate court.

There are four main requirements for a valid will:
1) Legal Capacity (18 in CA)
2) Testamentary Capacity
3) Testamentary Intent
4) Formalities

Ways To Acquire Legal Capacity

• Age (18 in CA)
• Marital status (No effect in CA)
• Military service (No effect in CA)

 Four Elements of Testamentary Capacity

1. Testator comprehends the action that is  being taken is testamentary in nature and understands its effect
2. Testator knows nature and extent of his or her property
3. Testator recognizes natural objects of his or her bounty
4. And Testator has all three elements simultaneously in mind long enough to make reasoned judgment.

 Testamentary Intent or Animus Testandi
 Intent that an instrument serve as a testator's will.  The Intent to create a will is free of mistake, fraud, undue influence, duress (menace), or insanity.

Formalities
The Purpose of a Formal Execution:

• Cautionary Function - It assures instrument is what testator actually wants versus what he is speculating he might want
• Evidentiary function - reliable evidence of testamentary intent
• Protective function - Formality affords protection from evildoers and plotters
• Channeling function - Assures testator that her bounty will will be channeled to the object of his affection

The benefit of making a trust rather than an outright gift

There are several reasons why you would want to make a trust, here I have listed some reasons why creating a trust would be more beneficial rather than making an outright gift of the property to the beneficiary.

1) The beneficiary may not be able to manage the property either because of age or infirmity, and by having a trustee manage the assets, the trustor would be left assured that property will produce an income for the beneficiary.

2) The Trust can be multi-generational, The trust can make sure that the trust property still exist for several generations, and not spent by the first generation.

3) By placing a trust during a person's lifetime, that property is considered owned by the person at death and therefore is not taxable or subject to the claims of intestate heirs.

4) If the trustor normally provides support for a dependent, then by placing property in a trust that produces income that the trustor typically provides to the dependent, he will have shifted the income tax burden to the trust and the beneficiaries, which may have more advantages, tax-wise, than paying for taxes on the income.

Eight Grounds that are basis for a trustee to be removed

The beneficiaries have the right to go to court to have a trustee removed.  Generally there are eight grounds that can be the basis to have the trustee removed:

1) Lack of capacity - If the trustee lacks contractual capacity, then the trustee will be unable to administer the trust, and therefore should be removed.

2) Breach of trust - If the trustee violates any fiduciary obligations it is grounds for removal.

3)  Refusal to give bond when required - If the court and/or statues requires the trustee to post a bond, and he or she fails to do so, he or she may be removed.

4) Refusal to give accounts - The trustee has to keep accurate accounts of the trust property, and has to be given to the beneficiary. If the trustee refuses to give the accounts to the beneficiary, he or she may be removed.

5) Conviction of a crime - Any trustee that commits a crime, and that would appear that he or she is unsuitable to be a trustee or one that results in incarceration can be removed.

6) Showing favoritism to one beneficiary - The trustee must treat all beneficiaries equally, according to the terms of the trust. Favoring one beneficiary over the other is grounds for the trustee's removal.

7) Long absence - If the trustee is away for a long period of time, and it interfered with the administration of the trust property, than the trustee can be replaced.

8) Unreasonable failure to cooperate with co-trustees -  If one of the trustees is unreasonably failing to cooperate with the other co-trustees,then it would be impossible for the trust to be administered, therefore it would be grounds for removal.

Requirements for a Valid Trust

A trust is considered a legal entity in its own right, A trust is a fiduciary relationship in which property is transferred from the trustor,  to one or more persons, known as a trustee. The trustee holds legal title and the trustee is subject to fiduciary duties imposed by the trustor to hold and use the property for the benefit of the beneficiary. The beneficiary holds equitable title.

The purpose of the trust is to see that the property is appropriately managed and its income disbursed to persons whom the trustor wishes to benefit from the property. The trust is not limited to any one person, the trust property can be distributed through generations.

Requirements to make a valid Trust.

1) A trustor - A trustor is the person who owns the property, and who is the creator of the trust relationship.

2) A trust property - Almost any type of transferable property can be the subject of a trust agreement. Transferable properties include, (1) real estate, (2) tangible property (3) intangible property. The only type of property that cannot be the subject of a trust would be such items as government pensions, tort claims, and any other interest or item to which attaches a restriction on transferability.   Additionally only property that is capable of producing income may be the subject of a trust. If a person places in the trust any property that is not income producing and does not indicate that the property may be sold to purchase income producing property, the "trust" , simply becomes a custodial arrangement.

3) A valid trust purpose - The trust has to be stated for any lawful purpose, a trust is not valid if it violates any civil or criminal laws. In order for the trust to have a valid purpose, the purpose must be specifically stated in the trust instrument itself. A trust cannot be enforced if its purpose is unclear. Also the trust purpose must impose certain duties the trustee has to perform.

4) A trustee - A trustee is a person given legal title, the trustee is also a fiduciary; that is a person who is held at a higher standard of care than ordinary care. He is a fiduciary because he has a very important duties and obligations to perform. The trustees duty is to carry out the wishes of the trustor. A trustee cannot benefit from the the trust property for his own enjoyment.  A trustee does get compensated for carrying out the duties, if it is not stated in the will, then the trustee will get paid based on the states statutes. The trustee must be loyal and ethical, and he/she cannot delegate from their duties.

5) Beneficiary - Every valid trust must have a beneficiary, and the beneficiary holds equitable title. The beneficiary is the person who the trust property will be receiving the trust property. If there are more than one person named as a beneficiary , the beneficiaries are considered to hold the property as tenants in common, meaning that each one has a divisible, but separate interest in the trust property.

You must have met each of these requirements in order to have a valid trust, And each of the above has requirements that have to be met as well.