![\"\"](\"http:\/\/fresnolawyerblog.com\/wp-content\/uploads\/2009\/12\/Windmill211.jpg\" "\\"Windmill2\\"")
<\/a>The answer is \u2013 a long time ago.\u00a0 Explains Prof. Langbein, \u201cTrust law is an ancient field.\u00a0 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.\u201d<\/p>\nTrusts have long been used to circumvent probate administration.\u00a0 Thus, \u201cThe trust originated as a device for transferring real property[.]\u00a0 Trust conveyancing allowed an owner to escape the medieval rule, which lasted into the seventeenth century, that freehold land was not devisable.\u201d<\/p>\n
Stop right there.\u00a0 Land in the feudal English system could not be conveyed by will, which restriction lasted into the 1600s.\u00a0 Instead, \u201cland that was transferred on death had to descend by intestacy rather than pass by will.\u201d<\/p>\n
Such transfers were subject to many restrictions.\u00a0 \u201cA 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\u2019s estate; and minors and unmarried females suffered further disadvantages in heirship.\u201d<\/p>\n
For this reason, attorneys several hundred years ago employed a trust to evade the limitations established by law.\u00a0 Prof. Langbein notes that, \u201cTrust conveyancing deftly evaded this medieval law of succession.\u00a0 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.\u201d<\/p>\n
Of course, the trust only works if some court will enforce it after the settlor\u2019s death, which was the early purview of the ecclesiastical courts.\u00a0\u00a0 \u201cThere is nothing novel [ ] about our modern understanding that a trust can function as a will substitute.\u00a0 What is new is that the characteristic trust asset has ceased to be ancestral land and has become instead a portfolio of marketable securities.\u00a0 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.\u201d<\/p>\n
\u201cWhy Did Trust Law Become Statute Law in the United States?\u201d by\u00a0 Prof. John H. Langbein (Yale University) Ala. Law Rev. Vol. 58:5, page 1069 (2007)<\/p>\n","protected":false},"excerpt":{"rendered":"
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 \u2013 a long time ago.\u00a0 Explains Prof. Langbein, \u201cTrust law is an ancient field.\u00a0 The enforcement of trusts in the English court of Chancery can be […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7,9],"tags":[],"class_list":["post-156","post","type-post","status-publish","format-standard","hentry","category-law-reviews","category-trusts-and-estates"],"_links":{"self":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/156"}],"collection":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=156"}],"version-history":[{"count":0,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/156\/revisions"}],"wp:attachment":[{"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=156"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=156"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=156"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}