colorful art

“Certain types of trusts, however, may only be used in very specific situations and a constructive trust is one of them.”

Trusts are useful in estate planning to avoid probate or minimize estate taxes. A commonly used trust is a revocable trust, often used to pass on assets to beneficiaries and keep them outside of the taxable estate. A constructive trust is a trust used to correct situations where property belonging to one person is held unfairly by someone else, explains the article “What is a Constructive Trust?” from Yahoo! Finance.

A constructive trust isn’t a traditional trust. A revocable living trust requires certain steps, like drawing up a trust document, naming a trustee, selecting beneficiaries, and transferring property or assets into the trust, referred to as “funding the trust.” This is used to manage assets for your own lifetime and potentially for generations to come.

A constructive trust is established by the court, when two parties are involved in a civil dispute over property. It might be created when someone is unfairly given ownership over property, which could happen because of deliberate misconduct or a mistake in a property transfer.

Here’s an example. Let’s say a person sets up a living trust and a trustee commits a breach of fiduciary duty that allows them to take control of trust assets. The estate planning attorney for the person who had the trust created would go to court to have a constructive trust created. This is known as an “equitable remedy.”

The first requirement for a constructive trust is that there is a court action between a property owner and another person, who is wrongly benefiting from the property. Another example: an elderly person’s caretaker coerces her into signing over the title for a piece of real estate. The mother’s legal guardian would bring a lawsuit against the caregiver on behalf of the mother. If the court agrees that the caretaker abused their position to gain ownership of the property, a constructive trust would be created. The property would be placed in the trust, out of the ownership of the caregiver, while the ownership is being transferred to the mother.

The constructive trust is meant to be a short-term arrangement to provide temporary relief. The person who is benefitting wrongfully from the property is directed by the court to transfer it to the trust. If the property itself cannot be returned, they are required to pay money to the trust of the equivalent value.

Here are examples of situations when a constructive trust could be used to transfer property:

  • Undue influence,
  • Duress or coercion,
  • Mistake,
  • Breach of fiduciary duty,
  • Embezzlement, or
  • Commission of a crime, including theft or homicide.

The constructive trust is also used if there is a dispute over how property should be distributed after a person dies. Let’s say the oldest sibling of a family convinces his parents not to write a will, assuring them that he will make sure that assets are distributed fairly to the younger siblings. He then keeps everything or sells assets and does not distribute proceeds. If the other siblings take him to court, the court may establish a constructive trust to provide relief and ensure that the estate is distributed according to the state’s inheritance laws.

Reference: Yahoo! Finance (June 5, 2020) “What is a Constructive Trust?

For more information on asset preservation and estate planning, please visit my estate planning website.

Mr. Amoruso concentrates his practice on Elder Law, Comprehensive Estate Planning, Asset Preservation, Estate Administration and Guardianship.