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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.
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.
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.
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 14 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).
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").
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