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Trusts Part II: Creation of a Trust

In general, the creation of a trust is significantly easier to prove than the creation of a will. In order to prove the existence of a valid trust one needs to only meet 3 requirements:

Intent – in order to prove the creation of a trust there must have been the initial intent to create the trust. This required intent can be manifested in many ways, it may be as simple as a spoken agreement or as complicated as a 50 page legal document.
Property – in order to be valid a trust must have property held within it. It is the trust’s purpose to provide for a beneficiary. If there is no property for the trustee to manage, there is nothing to provide to the beneficiary.
Beneficiary – valid trusts must have at least one identifiable and ascertainable beneficiary. Without a beneficiary the trustee has no reason to manage the property in the trust or person to distribute the trust assets to.

While these are the bare minimum requirements for the creation of a trust, trust creation as a whole is not nearly that simple. In order to achieve the intended benefits of particular trusts certain drafting requirements may need to be met. If these specific drafting requirements are not met a trust will likely still be created, but the trust may not carry all the added benefits intended in the drafting. This weekly series will cover the common forms and types of trusts available, as well as their intended uses and benefits.

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