STATUTE OF FRAUDS

Basic Idea Under certain circumstances, a trust must be evidenced by a writing. Why? Whom does the writing requirement protect? Alleged settlor. Alleged beneficiary. Alleged trustee. What really goes on in Area 51.

Basic Requirement -- § 112.004 1. Written evidence of the trust’s terms which is 2. Signed by the settlor (or settlor’s agent).

Exceptions 1. Oral trust if all below are true: Personal property Trustee is not the settlor Trustee is not the beneficiary Settlor expresses trust intent prior to or simultaneously with transfer

Exceptions 2. Self-declaration if all below are true: Personal property Settlor states in writing that settlor holds property in trust, even though the writing does not comply with normal requirements.

Exceptions 3. Part performance If alleged trustee acts like a trustee, alleged trustee estopped from denying existence of trust.

Special rule if trust in writing All changes and any revocation must also be in writing, even if trust could have been oral originally.

Standing to raise Statute of Frauds 1. Alleged trustee Thus, trustee can carry out a trust even if Statute of Frauds defense exists (e.g., oral trust of land). 2. Trustee in bankruptcy

Notarization Not required. But, it is prudent practice because: Trust may then be recorded in deed records. Takes more time and thus increases attorney fees. Provides notaries with enhanced employment. It really isn’t – this is a trick question.