Fresno Lawyer – Randolf Krbechek

Legal scholar John Langbein addresses a question that has been on my mind – When did trust agreements evolve from classic fiduciary relationships into will substitutes?

The answer is – a long time ago.  Explains Prof. Langbein, “Trust law is an ancient field.  The enforcement of trusts in the English court of Chancery can be traced back to the late fourteenth century, and there is some indication that the courts of the English church may have been enforcing trusts even earlier.”

Trusts have long been used to circumvent probate administration.  Thus, “The trust originated as a device for transferring real property[.]  Trust conveyancing allowed an owner to escape the medieval rule, which lasted into the seventeenth century, that freehold land was not devisable.”

Stop right there.  Land in the feudal English system could not be conveyed by will, which restriction lasted into the 1600s.  Instead, “land that was transferred on death had to descend by intestacy rather than pass by will.”

Such transfers were subject to many restrictions.  “A widow was restricted to the one-third life estate called dower; primogeniture awarded the entire remaining estate to the eldest male heir if any; transfer taxes known as feudal incidents were exacted when an heir succeeded to an ancestor’s estate; and minors and unmarried females suffered further disadvantages in heirship.”

For this reason, attorneys several hundred years ago employed a trust to evade the limitations established by law.  Prof. Langbein notes that, “Trust conveyancing deftly evaded this medieval law of succession.  The owner of land, the person whom we now call the settlor, would transfer the land to a trustee or trustees, who were commonly relatives or gentlemen friends, subject to trust terms that functioned like a will.”

Of course, the trust only works if some court will enforce it after the settlor’s death, which was the early purview of the ecclesiastical courts.   “There is nothing novel [ ] about our modern understanding that a trust can function as a will substitute.  What is new is that the characteristic trust asset has ceased to be ancestral land and has become instead a portfolio of marketable securities.  Long into the nineteenth century, the trust was still primarily a branch of the law of conveyancing, that is, the law of real property . . . The modern trust, by contrast, is primarily a management device for assembling and administering a portfolio of financial assets . . . as the predominant form of personal wealth.”

“Why Did Trust Law Become Statute Law in the United States?” by  Prof. John H. Langbein (Yale University) Ala. Law Rev. Vol. 58:5, page 1069 (2007)

Relationship-based fiduciary duties (as counterposed with contract-based fiduciary duties) arise in many different situations.  I recently came across an extension of the fiduciary concept in the field of charitable solicitations.

Specifically, California Business and Professions Code section 17510.8 states, “There exists a fiduciary relationship between a charity or any person soliciting on behalf of a charity and the person from whom a charitable contribution is being solicited.”

The statute continues.  “The acceptance of charitable contributions by a charity [establishes] a duty on the part of the charity and the person soliciting on behalf of the charity to use those charitable contributions for the declared charitable purposes for which they are sought.”  The statute concludes by reciting that, “This section is declarative of existing trust law principles.”

Those few words establish an extraordinarily high obligation both on the part of the charity and on the person making a charitable solicitation.  Classic formulation of fiduciary duties expounds that the person subject to the duty has an obligation to put the beneficiary’s interest ahead of his or her own interest.  Such a duty is non-delegable.

The 1992 Law Review Commission comments offer no citations to relevant authority, nor are there any published cases applying this law.  Perhaps the statement that the statute is “declarative of existing trust law” is overbroad.

Taken literally, this statute would have the effect of making a person who solicits contributions for a charity effectively a guarantor of the money,  meaning that if the money was not used for a charitable purpose, or, if it were embezzled by someone at the charity, the solicitor would be liable to come out-of-pocket to make up the contribution.

Surely, the legislature could not have intended such a result.  But, that is what happens when people loosely use the term “fiduciary relationship.”  Not all fiduciary obligations are the same.  The obligations owed by a member of an LLC to another member, although fiduciary in nature, are not the same as, for example, the obligations owed by a professional trustee to the beneficiary of an irrevocable trust.

It is a mistake to assume – or assert – that all fiduciary obligations are identical.  The legislature does us a disservice when it uses these terms carelessly.  The statute did not need to define the relationship as being “fiduciary” in nature – it would have been fully sufficient to provide that the charity and the person making the solicitation owe a “duty” to the donor.

A second recent opinion reinforces the fundamental rule that an inter-vivos revocable trust is not an entity separate from the trustee.  In Presta v. Tepper, 2009 DJDAR 16603 (Nov. 27, 2009), the court provided the following analysis:

“Two men enter into a real estate investment partnership, each acting in his capacity of trustee of a family trust.  The question is: who are the ‘partners,’ the men, or the trusts?

“The answer is ‘the men.’  A trust of the type formed by both men in this case is simply a fiduciary relationship, governed by the Probate Code, by which one person or entity owns and controls property for the benefit of another.  Such a trust is not an entity separate from its trustee, and cannot independently do anything – it cannot sue or be sued; it cannot enter into agreements; and it cannot fulfill the fiduciary duties of a partner.”

Oh boy.  You can’t say it much more clearly than that.

The litigation followed the death of one of the partners.  The partnership was formed by Ronald and Robert, each of whom signed the partnership agreement on behalf of his respective estate planning trust.  The court made short order of the argument that the trust, not the individual, was the partner.  Said the court.

“We have no trouble concluding, as a matter of law, that it was they, and not their respective ‘trusts,’ who were the partners in the two agreements at issue herein.

“The fundamental flaw in Renee’s argument is that it assumes a trust is an entity, like a corporation, which is capable of entering into a business relationship such as a partnership.  It is not.  It has long been established under California law that an express trust of the type created by Presta and Tepper is merely a relationship by which one person or entity holds property for the benefit of some other person or entity:  A trust is any arrangement which exists whereby property is transferred with an intention that it be held and administered by the transferee (trustee) for the benefit of another.”

The court further explained that the tax status of the trusts did not change its analysis in one iota.  True, the trust had its own taxpayer identification number and true again, the trust was required to report income and file a tax return.  Yet, the court sliced to the heart of the matter, explaining that:

“The tax status of these trusts is nothing more than a reflection of their essential purpose:  to establish a special category of property ownership by which the property is divided between the trustee who holds record title and controls it, and those who are entitled to receive its benefits.

“The fact that the taxing authorities chose to create a separate category for assessing the tax liabilities associated with such properties suggests nothing more than a determination that there are tax liabilities associated with such properties – and that since neither the trustee nor the beneficiaries owns the entirety of the trust property, those liabilities cannot simply be assigned to either of those in their individual capacities.  Nothing in that determination changes the nature of such trust relationships, nor conveys ‘entity’ status upon them.”

Hooray for the court, which got it right on all points.  The popular revocable estate planning trust is not an entity, it is a relationship.  (Of course, the trust also partakes of contract, but many obligations arise outside of the contract.)

A pair of decisions from last month reinforce the fundamental rule that an inter-vivos revocable trust is not an entity separate from the trustee.  The first opinion, 1680 Property Trust v. Newman Trust, 2009 DJDAR 16161 (Nov. 17, 2009) states the rule with elegant simplicity, to wit:

“Unlike a corporation, a trust is not a legal entity.  Legal title to property owned by a trust is held by the trustee.  A trust is simply a collection of assets and liabilities.  As such, it has no capacity to sue or be sued, or to defend an action.”

In 1680 Property Trust, it was alleged that the trustee had made fraudulent statements.  The trustee had died more than one year before the lawsuit was filed.  California law provides that an action against the decedent must be filed within one year from the date of death.  (The one-year rule applies to claims that existed as of the date of death.  If the claim arises subsequent to death, then an action can be filed after the general one-year period.)

To circumvent the application of the one-year rule, plaintiff sought to sue the trust itself.  The court held that there were no such claims against the trust, only claims against the trustee.  And, because the trustee had died more than one year before the lawsuit was filed, the action was barred.

Explained that the court, “It appears that whatever its form, the substance of the claims in this case is for the personal misconduct of the settlor/trustee on behalf of and for the benefit of the trust, that was completed entirely before the settlor/trustee died, and for which the settlor/trustee could have been held personally liable.  The action is one that could have been ‘brought on a liability of the person’ (Code of Civil Procedure section  366.2, subd. (a)), and is based ‘on a debt of the decedent’ even though brought against the successor trustee . . . Section 366.2 was intended to impose a time limit on such claims, regardless of whom the action was brought against.  Accordingly, the claims against Newman Trust are barred by section 366.2.”

Let’s say that again so we all understand it:  An estate planning trust is a legal fiction.  It is not an entity.  Period.  The trust has no separate existence, no matter what promises may be peddled by asset-protection salesman.  For all intents and purposes, the trust and the trustee are identical.