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Explain creation of trust

Avatar 37a3bd7bc7328f0ead2c0f6f635dddf60615e676e6b4ddf964144012e529de45 asked

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Avatar 37a3bd7bc7328f0ead2c0f6f635dddf60615e676e6b4ddf964144012e529de45 answered

In common law legal systems, the law of equity defines a trust as an enforceable three-party fiduciary relationship whereby the first party transfers title of property to the benefit of a second party that a third party holds title in trust for the benefit of. Trust law is a very old and complex subject, which has evolved differently in different jurisdictions.

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Avatar 37a3bd7bc7328f0ead2c0f6f635dddf60615e676e6b4ddf964144012e529de45 answered

**CREATION OF TRUST** A trust in respect of immovable property can be declared only by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered or by the will of the author of the trust or of the trustee. A trust in respect of movable property can be made either by a declaration as above or by the transfer of the ownership of the property to the trustee (Section 5 of the Indian Trusts Act, 1882). In places where the Indian Trusts Act, 1882 does not apply a trust of immovable property may be created orally if the author of trust is himself the trustee and consequently no transfer of the property is involved, and all that is required is only a declaration of trust (Madanji v. Tribhuwan, 36 B 366). If a stranger is appointed as trustee, a transfer of property is necessary and the conveyance must be made according to the law of Transfer of Property. Thanks

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Avatar 37a3bd7bc7328f0ead2c0f6f635dddf60615e676e6b4ddf964144012e529de45 answered

Dear friend, **Meaning of Trust** In common law legal systems, the law of equity defines a trust as an enforceable three-party fiduciary relationship whereby the first party transfers title of property to the benefit of a second party that a third party holds title in trust for the benefit of. Trust law is a very old and complex subject, which has evolved differently in different jurisdictions. **Creation of Trust** Trusts may be created by the expressed intentions of the settlor (express trusts) or they may be created by operation of law known as implied trusts. An implied trust is one created by a court of equity because of acts or situations of the parties. Implied trusts are divided into two categories: resulting and constructive. A resulting trust is implied by the law to work out the presumed intentions of the parties, but it does not take into consideration their expressed intent. A constructive trust is a trust implied by law to work out justice between the parties, regardless of their intentions. **Typically a trust can be created in the following ways:** 1.A written trust instrument created by the settlor and signed by both the settlor and the trustees (often referred to as an inter vivos or living trust); 2.An oral declaration; 3.The will of a decedent, usually called a testamentary trust; or 4.A court order (for example in family proceedings). In some jurisdictions certain types of assets may not be the subject of a trust without a written document. **Formalities to create Trust** Generally, a trust requires three certainties, 1.**Intention.** There must be a clear intention to create a trust. 2.**Subject Matter.** The property subject to the trust must be clearly identified . Trust property may be any form of specific property, be it real or personal, tangible or intangible. It is often, for example, real estate, shares or cash. 3.**Objects**. The beneficiaries of the trust must be clearly identified, or at least be ascertainable . In the case of discretionary trusts, where the trustees have power to decide who the beneficiaries will be, the settlor must have described a clear class of beneficiaries . Beneficiaries may include people not born at the date of the trust (for example, "my future grandchildren"). Alternatively, the object of a trust could be a charitable purpose rather than specific beneficiaries. **Trustees** A trust may have multiple trustees, and these trustees are the legal owners of the trust's property, but have a fiduciary duty to beneficiaries and various duties, such as a duty of care and a duty to inform. If trustees do not adhere to these duties, they may be removed through a legal action. The trustee may be either a person or a legal entity such as a company, but typically the trust itself is not an entity and any lawsuit must be against the trustees. A trustee has many rights and responsibilities which vary based on the jurisdiction and trust instrument. If a trust lacks a trustee, a court may appoint a trustee. The trustees administer the affairs attendant to the trust. The trust's affairs may include prudently investing the assets of the trust, accounting for and reporting periodically to the beneficiaries, filing required tax returns, and other duties. In some cases dependent upon the trust instrument, the trustees must make discretionary decisions as to whether beneficiaries should receive trust assets for their benefit. A trustee may be held personally liable for problems, although fiduciary liability insurance similar to directors and officers liability insurance can be purchased. **Beneficiaries** The beneficiaries are beneficial (or equitable) owners of the trust property. Either immediately or eventually, the beneficiaries will receive income from the trust property, or they will receive the property itself. The extent of a beneficiary's interest depends on the wording of the trust document. One beneficiary may be entitled to income (for example, interest from a bank account), whereas another may be entitled to the entirety of the trust property when he attains the age of twenty-five years. The settlor has much discretion when creating the trust, subject to some limitations imposed by law.

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