Bridget Crawford, ‘Less Trust Means More Trusts’

ABSTRACT
The word ‘trust’ has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on ‘trust’, in both senses of the world, one can discern fault lines in contemporary US political and legal structures. These are made even plainer when examined through the lens of ongoing litigation involving human embryos created by actress Sofia Vergara and her former fiancé.

Just as termites can enter homes through foundational cracks or wood brought from the outside, interpersonal, community or structural confidence may erode in the face of hostility, indifference or inequality. Similarly, as termites can slowly damage a home over a period of years before the harm becomes visible, the beneficial form of ownership known as a trust gradually – and then suddenly – has morphed almost beyond recognition over the last twenty-five years. Eaten away are the traditional limitations on trust duration, trust modification and the type of property that can be held in trust. In some states, irrevocable trusts can last forever, be decanted to another trust with entirely different terms, or even hold legal ‘title’ to human embryos. These changes to centuries of trust law reveal changing attitudes about wealth, property ownership, and personal autonomy. If society truly values equal opportunity for all people, then trust – and trusts – need attention.

Crawford, Bridget J, Less Trust Means More Trusts (March 19, 2019). 76 Washington & Lee Law Review Online (Forthcoming 2019).

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