The trust is a provision established in a will whereby an order is established to inherit (all or part of the inheritance). The first who inherits the obligation to keep and transmit the inherited to another person established in the will is imposed.
The trust is a successive and chronological inheritance substitution established by the testator in his will. A instituted as heir to B and provides that his death would replace C . That is a trust.
Below are three necessary factors for a trust to be given:
- An inheritance is needed and that in the will be called to inherit several people
- The obligation is imposed on the first to inherit from conserving and transmitting the goods to the second
- Establish an order in the will for the acquisition of inheritance
The people involved are three:
- Trustor:It is the person who leaves written in his inheritance the order to inherit his goods.
- Fiduciary:It is the first person established in the order to inherit and the first to receive the inheritance. He is obliged to preserve and transmit the inherited.
- Trustee:It is the second person established in the inheritance order and the one who receives the inheritance from the trustee and not the trustee. (He may also be the heir of the fiduciary or he may not), let’s see several examples;
A grandfather leaves written in his will that institutes his son as heir and that his death is replaced by C who is the son of B and the grandson of A. (In this case C is also heir of B)
A grandfather leaves written in his will that he establishes his best friend as heir to B and that his ex-girlfriend replace him at his death. (In this case C is not heiress of B, but the trust operates equally)
How is the trustee replacement made?
The settlor / testator must leave it in writing, his will must be clear, but the provision will be void.
When should the trustee transmit the inheritance to the trustee?
Three cases are described below in which it is indicated when the trustee must transfer the inheritance to the trustee:
- If the settlor / testator has said nothing except the order to inherit, the trustee receives the inheritance upon the death of the trustee.
- If the settlor / testator sets a condition, the trustee receives the inheritance upon fulfillment of the condition. It must be a future and uncertain event. Example: A institutes as an heir to B, providing that when C graduates in law, he replaces him.
- If the settlor / testator sets a term, the settlor receives the inheritance upon completion of the term. It must be a certain period. Example: A institutes as heir to B providing that within 6 years C replace him.
Limits to trustee substitution
You can establish the order to happen of as many people as you want, as long as those people are alive when they die. In addition, it can be established within the order to succeed two more people NOT living.
Example: A institutes as heir to B (alive) providing that his death is replaced by C (alive) and his death replaced by his son D (not alive). This trust provision would be valid.