Trust created in the will of famous people Jacquelyn Kennedy Onassis and former President Richard Nixon are great examples of how to word a trust document.
President Richard Nixon in his trust enumerated the names of the trustees as well as beneficiaries. He even outlined their responsibilities are trustees.
Jacquelyn Kennedy Onassis did the same thing. Her focus though was more on the beneficiaries of the trust - Caroline Kennedy and John F. Kennedy Jr. Jacquelyn Onassis did not also give the specific responsibilities as done by Nixon.
Both trusts though were done inter vivos, that is they were established by the time the trustor were alive. The documents both contained the essential elements involved in a trust document - truster, trustee, beneficiary and trust property.
Detailed discussions on how a trust is created are outlined in the succeeding paragraphs.
Trust Definition
Trust, as defined by the common law legal systems, and as can be seen from the aforementioned examples, pertains to a relationship in which a person or entity called the trustee possesses legal title to certain property or which we refer to as the trust property or trust corpus, but is obliged by a fiduciary duty to exercise that legal control for the benefit of one or more individuals or organizations which is the beneficiary, who hold "beneficial" or "equitable" title. The trust is governed by the terms stipulated in the written trust agreement and local law. The entity (individual, a partnership, or a corporation) that creates the trust is called as trustor, settlor, grantor, donor, or creator. It is important to getacquainted or to keep in mind the basic trust terminologies to avoid confusion when dealing with it - trustor, trustee, beneficiary and trust property.
Trust is a dual title because of its legal and equitable characteristics. Due to this, trust is often referred to as a "split title". The "title split" of trust law is due to its separate functions. Legal title is one aspect of the trust that pertains to the control, management, and possession characteristics, while equitable (beneficial) title is a feature of trust that involves "benefit," "enjoyment," and "use”.
Trust laws may differ but most trust law in the United States recognizes the legality of the trust document at the state level. Fiduciary tax law covers both federal and state.
Practitioners often come across such terms as inter vivos and testamentary trusts. Distinguishing the two is important to define the kind of trust required. When the person is living at the time the trust is established is called an inter vivos trust. A trust derived from an individual's will is called a testamentary trust. Since the will takes effect only upon death, a testamentary trust is often created during or after the date of the trust creator's death
Trustees
Trustees could either be (1) competent individuals or (2) state or federally chartered corporations with trust powers (most often banks). Usually, bank trustees will have incorporated their fiduciary organization into the investment management or private banking groups' aspect of the institution.
In some cases there are two trustees, an individual will serve as trustee together with a bank trustee. They are referred to as "co-trustees." Both individual and corporate trustees are allowed to charge fees for their services. But sometimes, the individual trustees serve as gratis in cases when the trustee is part of the settlor's family or the settlor him/herself. Trust may define each trustee's function. They may serve the same or different purpose, depending on what is outlined by the trust. If the trust is quite about it, it is safe to assume that both individual and bank trustees have similar responsibilities.
The fifty states have implemented different fiduciary law although efforts are now geared towards minimizing these differences through the
Uniform Principal and Income Act and other
uniform act efforts. Most often, existing governing local laws often allow trust agreements to be carried out according to the terms set in the trust document. These do not apply in a few exceptional cases such as when the trust document is hazardous or not in consonance with public policy such as a trust that would encourage criminal activities. These circumstances will invalidate the trust.
Other cases worth noting involving trust include some states requiring all trustee fees to be charged equally to principal cash and income cash. In the event that the trust document requests otherwise, the law permits the document language to prevail. If the document contains impractical or outmoded language, the beneficiaries and trustees may approach local probate courts to settle the matter. This is most commonly done to aid or amend the legal construction of the document or to cope with circumstances the settlor had not foreseen during the time the trust was made.
Sometimes conflicts arise when it comes to interpreting the trust language. Some parties may not be amenable to its contents. To settle the matter, when the trustee or beneficiary needs help with regards to the interpretation of the trust document especially in cases where conflicts arise due to the trust, the local probate court judge can extend help. In creating trust, another important thing to take into account is the "docketing" a trust, which means taking it to the judge. When the judge is done, the trust then becomes "undocketed”.
Trust Document
The following documents are found in the foregoing examples and are essential in creating trust :
- Written instrument or the trust document which contains the signature of both the settler (who could be one or more beneficiaries) and the trustee
- The last will and testament of the settler
In most situations, there are two important requirements to create a trust. These two must be present in order to make the document valid. These two requirements include: it needs to be
- Signed
- Money or something of value is turn over from the settler to the trustee.
Trust therefore does not end upon the signing of trust documents. There is another requirement before the document is considered valid trust. The trust is created only when the second stipulation is accomplished which is to transfer money or something of value such as real estate or jewelries to the trustee. The legal language made use of a res (this is a Latin word for "thing"; which refers to the property) that is the focus of the trust.
