Bogetti

MEMORANDUM ***

1. The BAP did not err in holding that Appellants’ beneficial interest in the trust is part of the bankruptcy estate, even though legal title to the res of the trust is not part of the bankruptcy estate. In a trust, legal and equitable interests are separated and held by two different entities; indeed, such separation is a since qua non of the creation of a trust. Gordon v. Sec’y of Health & Human Servs., 803 F.2d 1071, 1073 (9th Cir.1986).

2. Appellants’ beneficial interest in the trust is not excludable from the bankruptcy estate. The Supreme Court *268 has interpreted 11 U.S.C. § 541 (c)(1) and (2) to mean that a debtor may “exclude from property of the estate any interest in a plan or trust that contains a transfer restriction enforceable under any relevant nonbankruptcy law.” Patterson v. Shumate, 504 U.S. 753, 758 , 112 S.Ct. 2242 , 119 L.Ed.2d 519 (1992).

The anti-alienation provision contained in Appellants’ trust at paragraph 11.1 is not enforceable under any relevant non-bankruptcy law, however, so the beneficial interest is not excludable under § 541(c). California Probate Code § 15304(a) provides: “If the settlor is a beneficiary of a trust created by…