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Attorney Randy Ratliff

Constructive Trusts

Estate Planning Lawyer Serving the Nashville Area

When planning one’s estate, there are several different tools available, including not only traditional documents such as wills, but also more modern vehicles known as “trusts.” Generally speaking, a trust is a legal arrangement through which a trustee holds property for the benefit of a beneficiary. This may be during the trustor’s lifetime (an inter vivos trust) or through a will that makes the trust effective after the trustor’s death (a testamentary trust). If you are interested in setting up a trust to accomplish a particular purpose, such as qualifying for certain government benefits, avoiding probate, or providing for a loved one with special needs, a skilled Nashville estate planning attorney at the Randy Ratliff Law Offices, PLLC, can help. We can also explain the concept of another kind of trust known as a “constructive trust” and help you determine whether such an entity may have resulted from a particular situation.

Constructive Trusts

The most important thing to know about constructive trusts is that, unlike traditional trusts, they are not the result of careful, intricate planning by an estate and trusts attorney. Rather, a constructive trust is a trust that is a “legal fiction,” that is, a trust that was never actually set up. With a constructive trust, no one called an attorney, made an appointment, and went in to take care of the task of putting his or her affairs in order.

How Does a Constructive Trust Work?

Sometimes, a given situation calls for the law to step in and create a legal arrangement that was not originally intended in order to avoid an unfair result. This is what happens when a court declares a constructive trust. In essence, the court is declaring that one party held property in trust for another – even though no formal legal arrangement to this effect actually existed – in order to avoid one party being unjustly enriched at the expense of the other. After declaring that a constructive trust exists, the court may order one person to transfer the “trust property” to the intended party rather than continue to hold it himself or herself.

In order to avoid situations in which it is necessary to go to court and request that a constructive trust be declared, as well as other unpleasant situations that can result from a lack of adequate estate planning efforts (such as higher taxes or the embarrassment of one’s affairs becoming public record in a nasty court battle), it is important to talk to an attorney about writing a will, setting up an appropriate living trust or other document, and/or entering into a power of attorney agreement so that your wishes are known and honored both now and in the years to come. As the old saying goes, “Failing to plan is planning to fail.” In the world of wills, trusts, and estates, failing to have a proper estate plan is tantamount to planning to let the state legislature decide who gets one’s property at death. When no estate planning efforts have been made, property is simply passed according to the law of intestate succession in the state in which the deceased person resided. Most likely, this de facto “estate plan” will not be the same as what the person would have wanted, had proper thought and consideration been given to the inevitability of leaving one’s loved ones behind at some point in the future.

Talk to a Nashville Trusts and Estates Attorney

Doing the right thing and taking care of estate planning needs now, rather than leaving a mess behind for one’s family to deal with later on, is possible and can be a relatively smooth process. Experienced estate planning lawyer Randy Ratliff can help you get started when you are ready to take this important step. For an appointment, call the Randy Ratliff Law Offices, PLLC, today at 615-656-8282 or contact us online. We serve all of Davidson and Williamson Counties, including in Antioch, Hermitage, Madison, Goodlettsville, Joelton, Franklin, Brentwood, Nashville, and Cool Springs. We also handle, trust administration, elder law matters, and family law cases, and we look forward to potentially working for you.