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Encyclopedia > Express trust
The law of wills and trusts
Part of the common law series
Inheritance
Intestacy  · Testator  · Probate
Power of appointment
Simultaneous death  · Slayer rule
Disclaimer of interest
Types of will
Holographic will  · Will contract
Living will
Joint wills and mutual wills
Parts of a will
Codicil  · Attestation clause
Incorporation by reference
Residuary clause
Problems of property disposition
Lapse and anti-lapse
Ademption  · Abatement
Acts of independent significance
Elective share  · Pretermitted heir
Contesting a will
Testamentary capacity
Undue influence
Types of Trusts
Express trust  · Asset-protection trust
Protective trust  · Spendthrift trust
Charitable trust  · Honorary trust
Resulting trust  · Constructive trust
Special needs trust: (general)/(U.S.)
Doctrines governing trusts
Pour-over will  · Cy pres doctrine
Other areas of the common law
Contract law  · Tort law  · Property law
Criminal law  · Evidence

Where property is passed to a person but no gift is made, it is held for the owner, this is the Resulting trust; where property should for some reason of public policy or fairness or rule of Equity be held for someone other than the legal owner, this is either the Statutory trust or the Constructive trust; but where legal title to property is held by someone on trust, this is the Express trust. Image File history File links Scale_of_justice. ... Law (from the late Old English lagu of probable North Germanic origin) in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, intended to provide methods for ensuring the impartial treatment of such people, and provide... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... The law of trusts and estates is generally considered the body of law which governs the management of personal affairs and the disposition of property of an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Intestacy is the condition of the estate of a person who dies owning property greater than the sum of his or her enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies... A testator is a person who has made a legally binding will or testament, which specifies what is to be done with that persons family and/or property after death. ... Probate is the legal process of settling the estate of a deceased person; specifically, distributing the decedents property. ... A power of appointment is a term most frequently used in the law of wills to describe the ability of the testator (the person writing the will) to select a person who will be given the authority to dispose of certain property under the will. ... Simultaneous death is a problem of inheritence which occurs when two people (usually a husband and wife) die at the same time in an accident. ... The slayer rule, in the common law of inheritance, is a doctrine that prohibits inheritence by a person who murders someone from whom they stand to inherit. ... Disclaimer of interest (also called a renunciation), in the law of inheritance, wills and trusts, is a term that describes an attempt by a person to renounce their legal right to benefit from an inheritance (either under a will or through intestacy) or through a trust. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... A holographic will is a will and testament that has been entirely handwritten and signed by the testator. ... A will contract is a term used in the law of wills describing a contract to exchange a current performance for a future bequest. ... A living will, also called will to live, advance health directive, or advance health care directive, is a specific type of power of attorney or health care proxy or advance directive. ... Joint wills and mutual wills are closely related terms used in the law of wills to describing two types of testamentary devices that may be executed by a married couple to ensure that their property is disposed of identically. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... A codicil for a will is a small change (much like a Postscript (P.S.)) to the will that does not require a rewrite of the document. ... In the statutory law of wills and trusts, an attestation clause is a clause that is typically appended to a will, often just below the place of the testators signature. ... Incorporation by reference is a doctrine of the common law of wills by which a person may state in his will that certain property is to be disposed of by a seperate document, describing the place where the document will be found. ... A residuary estate, in the law of wills, is any portion of the testators estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. ... Lapse and anti-lapse are complementary concepts under the law of wills, which address the disposition of property that is willed to someone who dies before the testator (the writer of the will). ... Ademption is a term used in the law of wills to determine what happens when property bequested under a will is no longer in the testators estate when the testator dies. ... Abatement (derived through the French abattre, from the Late Latin battere, to beat), a beating down or diminishing or doing away with; a term used especially in various legal phrases. ... The doctrine of acts of independent significance, in the common law of wills, permits the testator to effectively change the disposition of her property without changed her will, if acts or events with relation to the property itself have some significance beyond avoiding the requirements of the will. ... An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedents will. ... A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know or did not know of the party at the time the will... A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). ... In the common law tradition, testamentary capacity is the legal term of art used to describe a persons legal and mental ability to make a valid will. ... Undue influence (as a term in jurisprudence) is an equitable doctrine that involves one person taking advantage of a position of power over another person. ... In common law legal systems, a trust is a contractual relationship in which a person or entity (the trustee) has legal title to certain property (the trust property or trust corpus), but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more... An asset-protection trust is a term which covers a wide spectrum of legal structures. ... The Protective Trust is a form of settlement found in England and Wales and several Commonwealth countries. ... A spendthrift trust is a trust that is created for the benefit of a person who is in debt (often because they are unable to control their spending) that gives an independent trustee full authority to make decisions as to how the trust funds may be spent for the benefit... A charitable trust (or charity) is a trust organized to serve private or public charitable purposes. ... An honorary trust, under the law of trusts, is a device by which a person establishes a trust for which there is neither a charitable purpose, nor a private beneficiary to enforce the trust. ... In common law legal systems, a trust is a relationship in which a person or entity (the trustee) has legal control over certain property (the trust property or trust corpus), but is bound by fiduciary duty to exercise that legal control for the benefit of someone else (the beneficiary), according... A constructive trust is a legal device used by courts sitting in equity to resolve claims raised by a plaintiff whose property has been converted to a profitable use by the defendant. ... Special Needs Trusts are created to ensure that beneficiaries who are developmentally disabled or mentally ill can receive inheritances without losing access to essential government benefits. ... Please wikify (format) this article as suggested in the Guide to layout and the Manual of Style. ... In common law legal systems, a trust is a contractual relationship in which a person or entity (the trustee) has legal title to certain property (the trust property or trust corpus), but is bound by a fiduciary duty to exercise that legal control for the benefit of one or more... A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his estate at the time of his death shall be placed in the trust. ... The English cy pres doctrine (pronounced as see-pray) is a legal doctrine of the Court of equity. ... A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. ... In the common law, a tort is a civil wrong for which the law provides a remedy. ... Property law is the area of law that governs the various forms of ownership in real property (land as distinct from personal or movable possessions) and in personal property, within the common law legal system. ... Criminal law (also known as penal law) is the body of common law that punishes criminals for committing offences against the state. ... The law of evidence governs the use of testimony (e. ... In common law legal systems, a trust is a relationship in which a person or entity (the trustee) has legal control over certain property (the trust property or trust corpus), but is bound by fiduciary duty to exercise that legal control for the benefit of someone else (the beneficiary), according... The Court of Chancery, London, early 19th century This article is about concept of equity in Anglo-American jurisprudence. ... A constructive trust is a legal device used by courts sitting in equity to resolve claims raised by a plaintiff whose property has been converted to a profitable use by the defendant. ...

Contents


Terms

The terms of an Express trust can be simple and in certain jurisdictions may be established simply by expressing the relevant instructions verbally. However where land is to be held on trust or significant amounts of property are involved, it would be more normal for the arrangements to be recorded in writing. Where legal title to property is being passed to trustees, a "Deed of Settlement" or "Trust Instrument" (for jurisdictions that do not recognise Deeds) may be used; where property is to continue to be held by the person making the trust a "Declaration of Trust" will be appropriate.


It would be normal practice to appoint a minimum of two trustees or a trust corporation to act as trustee so as to allow for the continuation of the normal running of the trust in the event of a trustee's resignation, death, bankruptcy or incapacity. Additionally a Protector may be appointed who may for example have the power to appoint new trustees and to review the trustees' annual accounts.


For a trust to be effectively established under the common law, there must normally be certainty with regard to the nature and extent of the trust property, the persons to be included in the class of beneficiaries and the intention to create a trust. These certainties are watered down in modern American Pour-over wills (see below) but where they still apply, a written trust deed will provide the best evidence that a trust is intended and not another form of transaction such as a gift or grant of a power. A pour-over will is a testamentary device wherein the writer of a will creates a trust, and decrees in the will that the property in his estate at the time of his death shall be placed in the trust. ...


Common forms of express trust

Bare trust
property transferred to another to hold e.g. for a third person absolutely. May be of use where property is to be held and invested on behalf of a minor child or mentally incapacitated person.
Life Interest trust
the income from property transferred is paid to one person "the life tenant" (e.g. a widow/er) during their lifetime and thereafter is transferred to another person (who may take absolutely or a second life interest according to the terms of the trust, in the second case a third beneficiary would come into play). The trustees may have power to pay capital as well as income to the life tenant; alternatively they may have rights to transfer ("appoint") property to other beneficiaries ahead of their entitlement.
Discretionary trust
the trustees may pay out income to whichever of the beneficiaries they, in the reasonable exercise of their discretion, think fit. They will normally also have a power to pay out capital. They may have extensive powers, even to add new beneficiaries, but such powers may normally only be exercised bona fide in the interests of the beneficiaries as a whole.
Charitable trusts
trusts for a purpose (as opposed to for individuals) are generally invalid at common law however charities are an exception. Persons wishing to pass money to causes not recognised as charitable may instead make gifts to established companies or associations or may establish trusts or trust-like structures in jurisdictions which do not restrict non-charitable purpose trusts (e.g. Jersey trusts, Danish and US foundations and Liechtenstein Anstallts).
Protective trusts and Spendthrift trusts
can be established to provide an income for persons who cannot be trusted with it.

Variation of Trusts in English Law A charitable trust (or charity) is a trust organized to serve private or public charitable purposes. ... // Legal definitions A charity is a trust, company or unincorporated association established for charitable purposes only. ... Charity is a term in Christian theology (one of the three virtues), meaning loving kindness towards others; it is held to be the ultimate perfection of the human spirit, because it is said to both glorify and reflect the nature of God. ... A company in the broadest sense is an aggregation of people who stay together for a common purpose. ... A voluntary association (also sometimes called just an association) is a group of individuals who voluntarily enter into an agreement to form a body (or organization) to accomplish a purpose. ... The Protective Trust is a form of settlement found in England and Wales and several Commonwealth countries. ... A spendthrift trust is a trust that is created for the benefit of a person who is in debt (often because they are unable to control their spending) that gives an independent trustee full authority to make decisions as to how the trust funds may be spent for the benefit...


The Variation of Trusts Act 1958 gave the courts the power to vary trusts in the following circumstances



· s1(1)(a) Any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by reason of infancy or other incapacity is incapable of assenting; or


· s1(1)(b) Any person (whether ascertained or not) who may become entitled, directly or indirectly, to an interest under the trusts as being at a future date or on the happening of a future event a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person who would be of that description, or a member of that class, as the case may be, if the said date had fallen or the said event had happened at the date of the application to the court; or


· s1(1)(c) Any person unborn; or


· s1(1)(d) Any person in respect of any discretionary interest of his under protective trusts where the interest of the principal beneficiary has not failed or determined.


The court does not have the power to consent to the variation of a trust on behalf of an ascertained individual who is sui juris.(Someone above the age of consent and of sound mind)


Forms of trust used by UK taxpayers

Accumulation and Maintenance trust
A variation on the discretionary trust, the A&M does not carry the Inheritance tax disadvantages of a discretionary settlement but can only be established for persons under 25 who must be entitled to income at that age. Allows the accumulation of income within the trust until 25.
Disabled Trust
Similar to an A&M trust but established for a disabled person.
Reverter to Settlor trust
A trust where, on the death of the life tenant, the property reverts to the person making the gift.
Nil Rate Band Discretionary trust
UK inheritance tax is payable at 40% on estates worth over £275,000 for the 2005-2006 tax year. If assets up to that value are placed in a discretionary trust during a person's lifetime, the trust will not be taken into account for inheritance tax if the person survives for a further 7 years. Likewise in a will, many persons leave a legacy on discretionary trusts so as to take full advantage of their nil rate band (gifts to spouses and registered civil partners being wholly exempt).

Inheritance tax, also known in some countries outside the United States as a death duty and referred to as an estate tax within the U.S, is a form of tax imposed upon the transfer of the property of the estate of a deceased person that is left to a... The examples and perspective in this article or section may not represent a worldwide view. ... A civil union is one of several terms for a civil status similar to marriage, typically created for the purposes of allowing same-sex couples access to the benefits enjoyed by married opposite-sex peoples (see also same-sex marriage); it can also be used by opposite-sex couples who...

Forms of trust used by US persons

Certain US jurisdictions and other jurisdictions have developed a radically different interpretation of the trust. Valid trusts can be established by persons who then continue to deal with property as if it were their own during their lifetime, the trust crystallising on death. Trust funds can be taxed as legal entitles by election ("checking the box").


  Results from FactBites:
 
Express trust - Wikipedia, the free encyclopedia (787 words)
It would be normal practice to appoint a minimum of two trustees or a trust corporation to act as trustee so as to allow for the continuation of the normal running of the trust in the event of a trustee's resignation, death, bankruptcy or incapacity.
For a trust to be effectively established under the common law, there must normally be certainty with regard to the nature and extent of the trust property, the persons to be included in the class of beneficiaries and the intention to create a trust.
trusts for a purpose (as opposed to for individuals) are generally invalid at common law however charities are an exception.
  More results at FactBites »

 
 

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