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express trust

Last modified: Thu Feb 23 16:37:37 2006

The express trust is the archetypal form of Trust, and the one most commonly meant when the term `trust' is used. An express trust is created intentionally by a person exercising his powers of ownership. The person who creates an express trust is usally referred to a the Settlor, even when the trust is not strictly a Settlement. Express trusts are usually creating in the form of a written document, the TrustInstrument.

The settlor may make the trust gratuitously, or as part of some other arrangement. For example, a person who expresses in his Will his desire to create a trust for the benefit of his children is doing so freely and not (usually) as part of deal. On the other hand, occupational pension trusts are held by employers as trustees, as part of the agreement represented by a contract of employment.

The settlor can, and often will, maintain a measure of control of the trust assets by means of the terms of the trust instrument. For example, he may reserve the right to replace the trustees, or to have a say in the allocation of benefits. In extreme cases, the settlor may include express terms allowing the trust to be revoked. These terms are effective because they for part of an agreement between the trustees and the settlor, not because the settlor retains any rights of ownership over the settled assets.

In general, an express trust will be either a FixedTrust or a DiscretionaryTrust. The trustee of either type may also be granted PowerOfAppointment, as may anybody else. It is not uncommon, for example, for one of the beneficiaries to be granted power of appointment.

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