HomeLiving TrustsOrigin of the Living Trust
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Brent D. Coldiron, Attorney at Law

The living trust, an intervivos trust or a trust made while you are alive, as opposed to a testamentary trust, a trust made by your will, has an ancient origin. 1805 BC is the earliest trust in history. [Well it was not the first trust. Genesis 1:26-28 the Creator entrusted mankind with His creation. http://biblegateway.com] http://trustarte.com The Egyptian Uah (an Egyptian priest) made a will with trust provisions. In it Uah appointed a guardian for his child. He also left certain property to his wife, directing who she could leave the property to at her death. William “Flinders” Petrie, the famous English archaeologist discovered this trust at Kahun, Egypt. It was written on two leaves of papyrus in red and black ink. It bore the signatures of two witnesses, who were scribes. http://duhaime.org

A Fideicommissum or living trust was in legal use in Rome by 200 BC. A fideicommissum means to commit something to another person’s trust. According to http://merriam-webster.com it is “a gift under Roman law of property stipulated by the donor to be transferred by the donee at a given time or upon a stated condition to a third person for his benefit and made between living persons in contemplation of death or by will.” Augustus [Augustus defeated Anthony and Cleopatra] seems to be the first Roman ruler to establish the legal authority for the use of a living trust.

There were important reasons for the use of a living trust. It enabled the transfer of property to persons who would otherwise be excluded as an heir under Roman law. Women were not heirs of wealthy Romans. Living trusts were used by wealthy Roman families to keep their power and property within the family, controlled by the right family members. Wealthy Romans used living trusts to free their slaves at the owner’s death.

English living trust law has its roots in the Middle Ages. The English proverb, “necessity is the mother of invention” came into play. Legal innovations to solve a problem often occur when circumstances make something difficult or impossible. The Religious Crusades were in favor in the 11th and 12th centuries. England was a land of common law. Since 1066, the reign of William the Conqueror, there was one common law for England. The common law was the rules derived from previous decisions made by judges. When a case would come before a court, the judge was required to review previous similar cases and how those were decided. That is how the common law was made, case by case. Under the English common law at the time of the Crusades, title to property was unified. It was not divided. It was indivisible. But during the Crusades property owners left England for the Crusades. Before they left it was common to deed their property to trusted individuals to manage their property while they were gone. When the true owners returned, their trusted caretakers kept the property as their own. The returning property owners lost their cases before the common law judges, since they had deeded their title to a new owner. The new owner was the owner under the common law.

The living trust was born. The defeated original land owners petitioned the King for redress. The King passed the buck to his Lord Chancellor to hear the petitions. The Lord Chancellor established the Court of Chancery to hear the cases. They would use the concept of deciding the cases by fairness, or equity. The first living trust concepts were espoused. It was reasoned that what had really happened was that the ownership of the land was divided between its legal ownership (the deed title) and its equitable or cestui que use (equitable owner) ownership. Thus was born the law of trusts and the first English living trusts. The harshness of the English common law could now be corrected under equity. The concept of a living trust, was recognized. The title to the property was divided between title and equitable title. T legal title owner, the trustee, was under a duty to use the property for the benefit of the equitable owner, the beneficiary. The legal formula for a living trust.

The English common law and law of equity was imported to the American British colonies. Along with the import of the law, was imported the law of trusts, and the living trust. Helping its adoption was the Commentaries on the Laws of England by Blackstone was an influential treatise on the common law. It presented the English law as logical, rational and just. This treatise was often quoted as definitive in early American court decisions. There are several examples of the early use of living trusts in America. The Virginia Colonial Assembly in 1691 passed the Act for Ports. This law set aside 50 acre tracts of land located in ports along the coast of Virginia. Trustees were established over the land. They were to sell off the land. Some of the land was not sold. It was held for the common good of the general public, who were the beneficiaries of the trust. http://scholarship.law.wm.edu One notable private use of a living trust was by Francis Fauquier. He was the Lieutenant Governor of Virginia in 1765. His lawyer, Patrick Henry put in place for him a revocable living trust.

An experienced living trust attorney, like Brent D. Coldiron, has prepared hundreds of trusts for his clients. He will insure that your wishes will be carried out. Contact Brent at (405) 478-5655 or 737-2244. His website is http:/www.coldironlaw.com


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