How To Form A Trust

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Definition of Trust

Creation of a trust, particularly relating to an immoveable property is also a species of transfer of property. Trust is defined in section 3 of the Trust Act, 1882 as ” an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or of another and the owner. In simple words it is a transfer of property by the owner to another for the benefit of a third person along with or without himself or a declaration by the owner, to hold the property not for himself and another.

Requirements of a Trust

A trust is not a contract of agency to hold the property, as in that case there would be no transfer of the property. In trust there is a transfer from the owner to the trustee subject to certain terms and conditions. Bailment is also a kind of trust, but in bailment also there is no transfer of any interest in the property, but only a transfer of possession without ownership. Thereof, a trust is essentially a transfer of property by one to the other to be held by the other for the benefit of some person or for carrying out some object. It is no also a sale because a sale cannot be conditional and in sale there is consideration which is absent in a trust. The purpose of a trust must be lawful, that is,

It should not be forbidden by law.
It should not be of such nature that, if permitted it could defeat the provisions of any law.
It should not be fraudulent.
It should not involve or imply injury to the person or property of another or
It should not be such as would be regarded by a court as immoral or opposed to the public policy.

Where a trust is created for two purposes one of which is lawful and the other is not and the two purposes cannot be separated, the whole trust is void.

Creation of Trust

A trust of immoveable property can be created by two ways. One by a non-testamentary document and another by a testamentary document such as a will. In other words, a trust regarding a immoveable property cannot be created orally but it must be by a document duly registered. A trust of a moveable property can be created either by a document or delivering the property to the trustee with necessary oral directions. If the directions are given in writing it would amount to a trust by a non-testamentary document which may or may not be registered.

A person who creates a trust is called the settlor, the person to whom the the property is transferred on trust is called a trustee and the person for whose benefit the property is transferred is called the beneficiary or “cestuique trust” .

Deed of Trust

A trust relating relating to an immoveable property is required to be created by a document and such document must state and contain five essential things with reasonable certainty namely :

the intention on the part of the author of the trust or settlor to create a trust.
the purpose of the trust.
the beneficiary.
the trust property, and
transfer of the property to the trustee.

Declaration of Trust

A trust can also be created by the author himself declaring that he would hold the property, not as owner, but as a trustee for the benefit of some person or persons including himself and in that case the transfer of property is not necessary as one need not transfer his property but in such a case the declaration of trust is by the owner and he alone should be the trustee. Such a declaration would, however, require registration under the Registration Act.

Testamentary Trust

A trust can also be created by a testamentary document that is by Will and the same conditions as mentioned in Section 6 of the Trust Act are required to be fulfilled. such a Will also does not require registration

A trust is also created :

by application of employed trust or
as a constructive trust or
as derivative trust.
But they are created by fiction by of law and cannot be subject matter of conveyancing

Who can Create a Trust

A Trust can be created by any person competent to contract or even by a manner with the authority of a competent court and respect of any property which is transferable and over which the author of the trust has dispossessing power.

Trust, Private and Public

A Trust may be Private and Public.

When the purpose of the trust is to benefit an individual or a group of individuals or his or their descendants for any legal person and who is capable of holding property, it is a private trust.

When the purpose of the trust is to the benefit the public or any section of the public, it is public trust.

Who can be a trustee

A trustee can be any person that is, an individual or a corporate body or a corporate sole, capable of holding property and competent to contract. and he must accept the trust.

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About the Author

- Vakilno1 is a group of Law Enthusiasts and Legal Experts in India with a passion to provide the latest info and articles on Indian Legal System

Displaying 18 Comments
Have Your Say
  1. manohar malkani says:

    how do we complain in case a registered trust is not following proper rules

  2. tjjohn says:

    This is an informative article. However it is not very clear whether a major beneficiary ( Or other beneficiaries )of a private trust be the trustees of the Trust.

    As a case example. I would like to create a private trust of all my properties and be the trustee myself during my life time. Can I appoint one of my sons as a trustee after my death.

    Thanks

    tjjohn

  3. praveen says:

    i want to open a unit of my trust with other name ,is it possible ?

  4. MIR NUR ALAM says:

    Please send the guide line to provide the better opertunately of skill development for the young boys & girls in the rural areas.

  5. A executed a will for wife and son for her/his life time and thereafter creat a trust for public charity. Will not execute so fat. Meanwhile the property was sold by successor of author to third person by regd.saledeed. What happen reg. property and trust deed.

  6. Jastej S (Team Vakilno1) says:

    The executor of the Will or the beneficiary can file a case for the recovery of property.

  7. Sir, I like to start a Public Charitable Trust For My Home Towm, if possible pls mail me Sample Trust Deed.

    Thank you,
    Ranjan Agrahari

  8. Sirs
    I came across an instance.
    The Deed of Trust did not have any express Clause that it could create ,float or declare a Trust.
    But this Trust , taking refuge under the rights of dispossession/alienation/disposal/demising, by a deed of declaration floated a Trust

    Is this New Trust valid .Whether its corpus fund and assets woould be subject to its Management, OR THE MANAGEMENT of the original Mother-Trust ?
    Kindly help us design our further course pending for more than almost a year

  9. Sir, I like to start a Public Charitable Trust in My Home Town[in public place(Dewalay)], if possible please mail me Sample of Trust Deed and required other docoments.

    Thank you,
    Abhisek Anand

  10. Basntkumar says:

    Where private Trust are Registered?

  11. sir,

    I want to create a trust for the purpose to run a school.

    pls if possible mail me the format for trust deed

    Thanks

    with regards

  12. Shakeel says:

    Sir, I would like to start a religious Trust in my city to comunity services to my comunities but i don’t have any place to start. I am thinking to form a trust and ask my comunities to donate so that land can be buy and other facilities can be create to offer to my communities free of cost. Please mail me Sample of Trust Deed and required other docoments so that deed can be made registered the same.

    Thank you,
    Shakeel

  13. asokan.L says:

    hi,

    i need model of trust deed in tamil. pls send me to my mail id.

    thanks

    regards

    asokan

  14. Can a foreigner be a trustee for the Indian Trust

  15. shylaja says:

    SIR,
    i need model of succession op in english, please sent to my email id

  16. hi,
    i need model of trust deed in hindi/english. pls send me to my mail id.
    thanks
    regards

  17. amit says:

    I AMIT CHANDNA START A TRUST IN THE PUBLIC INTEREST. PL SEND ME PAPER FORMALITIES

  18. Sagar Patil, says:

    I would like to start trust for public interest at my village. I request you to guide me in following ares:
    1)Can trust be formed by contribution of my own money and without any immovable property?
    2)Can trust raise donation?
    3)Sample of trust deed in English
    4)Legal formalities in Karnataka

    With Regards
    SAGAR PATIL

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