Requirements
The necessary elements to create a Trust in California are:
The intent to create a Trust;
An asset to be governed by the Trust; and
A Trustee.
First, the creator of the Trust has to express the intent to create a Trust. If a person promises to create a Trust, that promise is enough to create a Trust.
However, the essential part of creating a Trust is transferring an asset to someone as the Trustee of the Trust. This Trustee may be the same person as the person who creates the Trust, or the Trustee may be a different person. The transfer may be done during the lifetime of the Trust creator (“a living Trust”) or after the Trust creator has died (“a testamentary Trust”).
Also, if the asset being transferred is real property, the transfer must be done in writing. Most people use a deed to transfer real property.
Additional Conventions
Even though the only things required by law to create a Trust are an intent to create a Trust, an asset that is governed by the Trust and a Trustee, lawyers have adopted several conventions that make it easier to create and to administer Trusts in the real world.
Writing (even if no real property). Without writing, it is very hard to prove that a Trust exists and what the terms of the Trust are. It only makes sense to write down your Trust even if you are only transferring personal property into it.
Beneficiaries: One of the prime reasons people create Trusts is to give away their assets after their death. It makes sense to include the names of the people (or the non-profits or institutions) that you want to receive your assets in your Trust.
Notary: Interestingly, the Trust creator’s signature is not required, but most Trusts in California include the creator’s signature, the date and location of the signature and a notary acknowledgment.
Alternate Trustees and Beneficiaries: It is helpful to name alternate Trustees in case the Trustee is not able to perform the job of Trustee. Similarly, it is helpful to name alternate Beneficiaries in case the original Beneficiaries die before the Trust creator.
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