Aug 1, 2005 12:00 PM, By Alexander A. Bove, Jr. member, Bove & Langa, P.C., Boston

By: By Alexander A. Bove, Jr. member, Bove & Langa, P.C., Boston

Most estate planners know the three basic elements of a trust: a trustee, a corpus, and one or more beneficiaries. Many commentators regard the presence of a beneficiary as the most important element, because without a beneficiary there would be no one to enforce the trust and hence there could be no trust.¹ There is, of course, one traditional, notable exception to this rule: A charitable trust may have no beneficiaries per se and still not fail. That is because it is well-settled law that the attorney general in the applicable jurisdiction has the power to enforce the trust.

Because of the beneficiary requirement, there has been a problem for those who want to create trusts to care for pets, maintain family property (such as antique cars or homes) or sustain a family business. Such trusts, considered to be established for a purpose rather than for beneficiaries, would fail as non-charitable purpose trusts. This is because neither the antique automobiles, nor the cats and dogs, nor the family home could sue the trustee to enforce the trust — and none of them is capable of having a personal representative.

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