Whether the trust relationship should be fundamentally transmogrified into a juristic entity/person

Whether the trust relationship should be fundamentally transmogrified into a juristic entity/person

Article posted in Estate Planning on 19 August 2015| 1 comments
audience: National Publication, Charles E. Rounds Jr, Fiduciary Consultant | last updated: 20 August 2015


Charles rounds asks a provocative question about the very nature of trusts.

By: Charles E. Rounds, Fiduciary Consultant

In re Estate of Fournier, 902 A.2d 852 (Me. 2006) illustrates how a fundamental conversion of the trust relationship by legislation or otherwise into a juristic entity/person might well limit the trust’s practical applicability, particularly in the informal context. In 1998 or 1999, a one George Fournier asked X & Y if they would “hold some money for him.” After his death, he wanted them to turn the money over to his sister. The court concluded that Fournier had created an oral trust. X & Y were the co-trustees. They were equitably bound to hold the money during Fournier’s lifetime and turn it over to the sister in her individual capacity after his death, free of trust. If a trust were fundamentally a juristic entity/person, would or could the court, as a practical matter, have found a trust under these facts? If not, then what are the legal/equitable tools that the court would have had at its disposal to sort out the rights, duties, and obligations of the parties with respect to the money? It is suggested that to fundamentally convert a trust from a relationship into a juristic entity/peron would unnecessarily tear a substantial hole in the fabric of the Anglo-American legal tradition. Here is a link to the Fournier Case. The topic of deeming a trust a juristic entity/person for certain purposes is discussed in §8.15.77 of Loring and Rounds: A Trustee’s Handbook. The section is reproduced below in its entirety, including enhancements that will be included in the forthcoming 2016 Edition.

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Re: Whether the trust relationship should be fundamentally ...

California Probate Code section 56 considers a trust a "person" as do many other Codes in California law. In fact, it and other such California statues state : "person" means individual, corporation, business trust, estate, trust, partnership,limited partnership, limited liability partnership, limited liability company, association, or other ENTITY." (caps added). Some statutes say "or any other legal or commercial entity".

Then we have other stranger versions: "...or other entity, whether domestic or foreign. Nothing in this subdivision shall be construed to confer any rights under the California Constitution or the United States Constitution." (LLC law)

Then in LLC law, 17701.04, it states that a limited liability company is an entity distinct from its members. Interestingly, it does not say the same thing in the corporations code.

So, what is a person? Is it an entity if it's not a natural person? If it's a person, but not a natural person or an entity, then what is a "person"?

IRC section 7701(a)(1) also considers a trust a "person".

We are thus at least halfway there already, even if very confused or confusing.

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