The Study On Domestic Testamentary Trust

Testamentary trust is an important section of the trust system from the very beginning, for which plays an indispensable role in property inheritance of decedent, property dispute between successors, ensuring the ancestor’s will be implemented after death, achieving tax avoidance under some portions of the country’s tax rules properly. It is the trust system design for implementing the decedent’s will that makes it more flexible, which specially acts on the trustee’s responsibility as well as the independence of the fiduciary property, and which is much superior to traditional inheritance system. As a matter of fact, testamentary trust system gradually migrates to domestic law-system country to meet varieties of citizens’requirements for distribution of private wealth, also as auxiliary system for traditional inheritance.With 《Trust Law of People’s Republic of China》 released, testamentary trust system has been officially admitted in2001. Even though, testamentary trust system is still in blank capacity in society for various reasons:First of all, the clauses of testamentary trust law are too simple that it cannot be applied in practice. Secondly, there are logic conflicts in the system of testamentary trust legislation. Moreover, the citizen lack of understanding of testamentary trust as well as social trust. For these difficulties above, the author intends to discuss the topic in following four parts (four chapters&nine sections in total).Chapter1:First of all, domestic economic develop rapidly. Private wealth is accumulating. Against these backgrounds, the citizen desire for new requirements of the heritage distribution. Though the traditional inheritance law system still plays the leading role, it can hardly meet the citizens’ diversification and liberalization requirements. Second, it has been proved that testamentary trust system with its three aspects of function can be regarded as auxiliary system, solving the problem of accumulated private wealth inheritance between generations, which represents in the second section with the distinctive function analysis of testamentary trust system (related to the first section).Chapter2:The main part is trust system analysis, including system definition, concept&feature investigation, and relevant similar concept analysis. Then it comes to analyze the involved jurisdiction clauses with the legislative background of trust law at that time.Chapter3:It makes comparison of testamentary trust system around countries®ions. Since Britain is the origin of the system, the paper explores the established background, and then switches to the world’s most developed country-United States for further research. What follows next is again to explore testamentary trust system legislation for something worth learning. The last it turns to the neighboring country-Japan, whose rules of law belongs to the Chinese legal system at first and then belongs to the continental law system, including investigation of testamentary trust development situation in Japan, the legislation survey and its new development, which are worth to emulate.Chapter4:Based on Chapter2and Chapter3, it draws the conclusion that those current problems in domestic testamentary trust system’s development mainly due to legal inadequacy and social obstacles. Aimed at these two problems, detailed research works and improvement suggestions are appropriately put forward.