Any attorney that specializes in trust law and the drafting of trusts is known as a trust attorney. These attorneys, based on their training and expertise in trust law, are able to advise clients, draft trusts, and register the trust. Trust attorneys first functioned solely under English common law as it defined a trust and its creation, however, with the adoption of the Uniform Trust Code (UTC) by many jurisdictions in the United States, trust law has become more standardized.
The UTC was enacted in 2000 in order to give an outline for states to draft their own trust laws. Amendments have been made to the UTC in years following its creation, but the code true to its original form. States may alter parts of the code in the creation of their trust laws in order to provide clarity and additional provisions for laws in that state.
The UTC works in accordance with other legislation that affects trusts such as the Uniform Probate Code (UPC), the Uniform Trustees’ Powers Act, and the Uniform Custodial Trust Act. Trust attorneys must be knowledgeable of these acts in order to legally create trusts for their clients.
Trust attorneys first act as an advisor to their clients in recommending the right trust for the intentions of the client. Many trust attorneys make the recommendation for a living trust so that the client may avoid certain costs and to ensure that the terms of the trust are carried out as intended. However, if the client desires a different type of trust, such as a testamentary trust, the attorney must act accordingly.
Trust attorneys can also draft the Last Will and Testament for the client and by doing so a testamentary trust can be created. The testamentary trust, if drafted, is an integral part of the will and is subject to the decision of a Probate court. Again, many trust attorneys advise their clients to not establish this type of trust.
The next step is the drafting of the trust. The legal document that establishes the trust is known as the “trust instrument” or the “trust deed”. The trust attorney must abide by the trust law statutes in the region that the trust is created as well as the Uniform Trust Code.
A trust will list trustees as appointed by the grantor. Either the trust attorney or the grantor can notify the listed trustee(s) of their appointment to manage the estate of the trust. The trustee(s) must then respond with their decision regarding their appointment. The trust is then finalized by the grantor and trust attorney.
After the trust instrument has been drafted and finalized to the specifications of the client, the trust attorney must register the trust with the local courts. The court may then decided whether a trust is valid. If considered invalid, the trust attorney and the client must work to alter the trust so that it is acceptable in the opinion of the court.