| dc.description.abstract | This article identifies and details the emergence in an increasing number of states of a new trust law that rejects the fundamental tenets of traditional trust law. This alternative concept of the trust liberates the trustee from any meaningful accountability to the beneficiary, the very core concept of traditional trust law. In short, these states are enabling the creation of what might be described as a "nonfiduciary trust."
When we identify a person, an object, a relationship, or a concept, the word we use connotes certain characteristics. These are not spelled out and do not have to be. There is a shared understanding. At the margin, there may be disagreement as to certain of the characteristics. However, there are core elements that are undisputed. In the event that there is disagreement as to the core elements, then communication becomes considerably less efficient, the prospect of misunderstandings and
disappointed expectations becomes very real, and the costs and adverse consequences of reliance on a particular understanding grow exponentially.
In the case of the "trust," the characteristics associated with the concept have not remained stable. One need only consider the collapse of the traditional rule against perpetuities, which limited the outer limits of the lifespan of the trust. Likewise, the widespread enactment of statutes permitting self-settled discretionary asset protection trusts is a direct repudiation of the long-established principle that the settlor could not resort to a discretionary trust of which he is a beneficiary to shield his assets from future creditors. | en_US |
