Express Trust vs. Resulting Trust

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What is an Express Trust?

An express trust is a type of trust that is created intentionally and purposefully.  In an express trust, the creator (the “settlor”) distributes property or funds to a trustee, who will hold the property in trust for the recipient.  Express trusts are usually created through the use of a legal document and must generally fulfill the various requirements for a valid trust.  Express trusts are sometimes called “direct trusts”.

What is a Resulting Trust?

A resulting trust is any trust that “results” from the decree or judgment of the court.  This can happen in connection with a lawsuit, or it may be the sole focus of a separate legal proceeding.  A judge will usually create a resulting trust for the purpose of preventing one party from being unjustly enriched.

Resulting trusts are usually created if the beneficiaries can’t be located or are not otherwise available.  They may be a part of a previous trust dispute lawsuit.  Some other examples of when a resulting trust may be issued can include failure of a direct or express trust or in connection with a purchase money trust (i.e., the beneficiary purchases the trust property). 

What is the Difference Between an Express Trust vs. a Resulting Trust?

Thus, when contesting an express trust, the person is usually challenging the intentions and instructions of a private citizen.  In contrast, when challenging a resulting trust, it usually means that the decisions and judgment of the court are being called into question.  As such, it can sometimes be more difficult to challenge a resulting trust rather than an express trust (although this is not always the case).

Resulting trusts can also be more difficult to prove or disprove because they aren’t really formed according to the intent of one person.  Instead, the trust is created after the court analyzes the various circumstances surrounding the property.  The trust is “implied” from the settlor’s conduct or prior statements.  This can be trickier to deal with than with direct, straightforward agreements as found in an express trust.

Lastly, a resulting trust is often used as a remedy in itself for a previously existing legal issue.  They are not always ordered in every legal dispute, and rules for resulting trusts may differ by jurisdiction.  In contrast, the rules governing express trusts are somewhat uniform across state lines, though each state may have slight differences in the requirements.

Do I Need a Lawyer for Help With Express vs. Resulting Trusts?

Trust disputes and conflicts can sometimes be complicated to deal with.  If you have any questions, concerns, or legal disputes regarding a trust, you may wish to speak with a qualified trusts attorney immediately.  Your attorney can provide you with expert guidance and assistance on the matters, and can represent you in court if you need to file a lawsuit.  You may also wish to contact a lawyer if you have any questions regarding beneficiary rights.

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Last Modified: 01-16-2013 02:39 PM PST

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