Two Other Elements
Besides three parties, at least two other elements are necessary for a valid trust.
- The trust instrument is the document that sets forth the terms of the trust.
- The other necessary element is property. After all, the trustee must be holding something for the benefit of the beneficiary.
Property of the Trust
When laypersons use the word “property,” I believe they usually mean real estate. But, lawyers use the term “property” much, much more broadly, to mean literally any transferable interest. Sometimes trust property is also referred to as the res or corpus or assets of the trust. (Bonus words!)
Any property can be held in trust. Seriously, check out this list of 101 assets that would fit in a trust. You could likely think of literally hundreds more types or categories of property to place in your own individual trust.
Pour Over Trust
How about an unfunded trust that will receive property at some point in the future? Can you even do that?
Yes, that can certainly be done. This is usually called a pour-over trust. (More bonus words!) The pour-over trust deserves its own blog post. Briefly, a pour-over trust is usually set up by language in a will. A will may validly devise property to a trust, established during the testator’s lifetime, and then funded at her death.
Let’s take a very simple example. Kate has a lawyer write her will, including language that at her death all her Monster Truck memorabilia be placed in a trust for the benefit of her nieces and nephews. Only at Kate’s death will the property be transferred into the trust, not before.
The important points are that property is necessary, at some point, to make a trust valid, and that literally any transferable interest in property – anything! – can be held in a trust.
Let’s Talk Trusts
It can be difficult to determine on your own if a trust may be right for your personal situation. It certainly doesn’t hurt to take me up on my offer for a free one-hour consultation. Give me a call at 515-371-6077 or shoot me an email at firstname.lastname@example.org.