Study On The System Of Testamentary Trust In China

Testamentary Trust is the trust established upon unilateral legal act. Different from common contractual trust, Testamentary Trust is a form of trust relying on testament, which is established and effective with testament at the same time. Because Testamentary Trust is able to fulfill the various kinks of designs and achieve distinct goals provided by predecessor to his property, other than basic inheritance of property, before his death, it is commonly applied in many countries where there are developed industries of trust. Testamentary Trust can not only flexibly complete the plans and designs related to inheritance of property, but also avoid the disputes relating to inheritance at a certain extent, in order to achieve the maximum of the benefits of inheritance. Besides, with regard to China where there are dramatic accumulation of individual wealth and an increasing number of disputes relating to inheritance, Probate Trust is a kind of legal system having a considerable practical value. However, since China’s Trust Law was published in 2001, Testamentary Trust has been less used in practice and the core reason is that most of the terms stipulated in China’s Trust Law are provided to contractual trust, but not Testamentary Trust. Although there are some terms specialized in Testamentary Trust, they only focus on individual circumstances. Thus, the unclear definition and nature of Testamentary Trust given by the currently effective law in fact result in the logical confusion among those terms regarding establishment, effectiveness, registration and other aspects of Testamentary Trust. In order to research what Testamentary Trust should be and further provide practically appropriate suggestions on the development of legal system, this essay shall clarify the legal system of Testamentary Trust in the following five parts:The first part starts with the definition of Testamentary trust. This chapter will attempt to clearly define Testamentary Trust by combining the characteristics of trust and testament. Then, it will further point out the connotation and extension of Testamentary Trust through the clarification in terms of the characteristics and kinds of Testamentary Trust. Next, this chapter will show the significance of developing the legal system of Testamentary Trust via the discussion on its different functions.The second part focuses on the legal effect of Testamentary Trust. First, this chapter will state the formal elements of establishing Testamentary Trust from the aspects of qualification of establisher, form of establishment, publicity and others. Second, it will further clarify the substantial elements of establishing Testamentary Trust in terms of objection of trust, qualification of beneficiary and fiduciary estate, especially emphasizing the scope, independence, ownership, change of property rights and other aspects of fiduciary estate in detail. Finally, this Testamentary shall introduce the fiduciary and overseer who respectively plays an important role in the process of performance of Testamentary Trust.The third part mainly discusses the specific effects after effective of Testamentary Trust and analysis their rights and obligations of trustor, trustee, beneficiary and supervisor in order. Especially focus on the obligations of trustee and the rights of beneficiary.The fourth part states the change and termination of Testamentary Trust. Then it respectively discusses the changes of subject, property and contents of Testamentary Trust, especially for the election of new trustee.The fifth part analyses the existing problems of present system of Testamentary Trust in China, mainly including: whether trustee accepts shall not be as Testamentary Trust establishing precedent condition; Trust registration effectiveness gives rise to an obstacle for effective of Testamentary Trust and Publicity settings; Trust property’s ownership is unclear; poor convergence to Portion System of succession law and lack of supervised by supervisor. Finally give a solution satisfied the present status to solve the problem.