What is the Difference Between Express Trusts and Implied Trusts?

Trusts are broken down into two general classes: implied and expressed. But what does this mean? What makes one different from the other? Well let's explore the legal aspects of both. This can help you tremendously when dealing with trusts and going through any court procedure as a result of one.

What is an Express Trust?

An express trust is created by a person based on an oral or a written statement in which a trust will form. This statement can use any words or language just as long as there is a complete set of terms expressed. This means that there should be a description of the property as well as the people involved and their appropriate roles in the agreement. In the case that a trustee is not specifically name the courts may appoint one. The entire statement must show that one person is the holder of the specified property that belongs to, or that benefits, another.

What is an Implied Trust?

An implied trust is one formed by the courts, to be more precise, the courts of equity. It is created due to the circumstances or acts of the parties involved. There are two categories of implied trusts to consider.

The first is a resulting trust. This is implied by law to sort out all of the presumed intentions involved. This does not take into consideration the expressed intent. It is a matter that is dealt with legally, weighing all of the evidence.

The second category is a constructive trust which is created for the purpose of being fair to each party. This trust does not consider the intentions involved, only that justice is worked into the situation or outcome.

What Does This Mean?

This plainly means that it is always best, when deciding to create a trust, that the parties sit down and design it. Use easy to understand language. Sometimes people try to use technical terms that they don't fully understand which can create some serious complications. If you want to be in control and choose for yourself the essential factors then do so in a comprehensive way. Don't get fancy.

Also, use an explanatory voice when making the statement. Don't be afraid to be thorough. It is always best to spell out exactly what you want so that there won't be any problems later. If the courts have to choose what they think is best for the parties involved the process can end up taking a lot of time and may or may not end with the desired results.