How Is a Trust Enforced After Death?

By Phil M. Fowler

A living trust has a legal identity that is separate and distinct from the person who creates the trust. The trustee and the beneficiaries all of the right to enforce a trust, even after the trust creator dies.

Generally

Like a business entity, a trust has its own legal identity. When a trust is created, a trustee is charged with managing the trust, following the trust terms and conditions, and enforcing the trust, similar to how business is managed.

Beneficiaries

Ultimately, the people who benefit from the trust are the beneficiaries. Because the beneficiaries receive trust income and property, they have the strongest interest to enforce the trust terms.

Death

Death does not normally affect the status or enforceability of a trust. If the trustee dies, a successor trustee will be appointed. Similarly, if a beneficiary dies, the remaining beneficiaries, or in some instances a contingent beneficiary, keep the trust in operation.

Procedure

Either the trustee or one of the beneficiaries can enforce a trust by filing a petition in state court. The state court judge will review the terms of the trust and will order compliance with those terms.

Misconceptions

It is easy to consider the trust creator as the owner of the trust property. However, as soon as a trust is created, any property held in the trust is no longer owned personally by the trust creator. The result is that the trust continues to exist and be enforceable by the trustee and beneficiaries even when the trust creator dies.

About the Author

The Constitution Guru has worked as a writer and editor for "BYU Law Review" and "BYU Journal of Public Law." He is an experienced attorney with a law degree and a B.A. degree in history with an emphasis on U.S. Constitutional history, both earned at Brigham Young University.

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