Also known as: instruments of trust · trust instrument
Written by attorneys · grounded in primary & secondary sources — see below
A written document executed by the settlor that contains the terms of the trust including any amendments. It is distinguished from a declaration of trust when the trustee named in the document is someone other than the settlor.
Isaac executes a will that leaves his residuary estate to an inter vivos trust he created years earlier with Insight Consulting serving as trustee. The trust was already funded with some assets during his life. At his death the pour-over provision adds the remaining probate assets directly into the trust administered under the existing instrument of trust.
Imani executes a document naming Interlink Communications as trustee and directing that certain investment accounts be held for her children. The document states the beneficiaries and distribution standards. Because the terms appear in this signed instrument of trust the court treats those provisions as the authoritative expression of her intent.
Select any source to read its text and confirm it supports the definition.
Ivan creates a trust naming Ines as trustee and later signs an amendment changing the remainder beneficiaries. Both the original document and the amendment qualify as the instrument of trust. The court looks to the combined writings to determine the current terms governing administration and distribution.
Isaiah tells his brother he is holding certain real estate for their niece but never signs any document. When a dispute arises the niece must prove the trust and its terms by clear and convincing evidence because no instrument of trust exists. The court refuses to enforce the arrangement on the strength of oral statements alone.
Iain signs a document naming a corporate trustee and retaining the power to revoke and amend. The instrument of trust immediately creates equitable interests in the named beneficiaries even though enjoyment is postponed and the interests may later be divested. The court upholds the trust as valid and non-testamentary.
Ines executes a document transferring assets to a trustee with directions for distribution at her death. After her death her spouse claims the arrangement is an invalid will substitute. The court examines the instrument of trust and concludes it created a valid inter vivos trust rather than a testamentary disposition.
An instrument of trust is used when the trustee is someone other than the settlor. A declaration of trust is used when the settlor also serves as trustee. Both are written documents that contain the trust terms.
Supporting sources
No. A trust need not be evidenced by a written instrument unless another statute requires it. An oral trust may be proved but only by clear and convincing evidence.
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The instrument executed by the settlor supplies the manifestation of intent that constitutes the terms of the trust. Amendments to that instrument are also part of the terms.
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Yes. A pour-over devise may add property to an inter vivos trust whose terms are set forth in an instrument of trust executed during the testator's lifetime even if the trust was unfunded until death.
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…property. The residue of her estate was to “pour over” into the inter vivas trust she created that same day. The decedent’s trust instrument named herself and John P. Hill as trustees. As the donor, the decedent retained the right to amend or revoke the trust at any time by written instrument delivered to the trustees. In the…