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POSSIBILITIES OF USE OF TRUST IN RECRUITMENT IN THE CITY ATTORNEY
HABITUAL *
By Natalio Pedro Etchegaray
CONTRACT TRUST
What is the trust?
For fully coincide with the purposes of this presentation and clarity
transcribe verbatim the concepts that Dr. Jorge Roberto HAYZUS
TRUST begins his book, edited by Astrea, in June 2001:
"The trust provides a framework and legal basis for the allocation of economic
benefits of ownership of certain assets, according to
the owner's will and purpose for the future. It is a way of disposal of the property
'ata' property for a specific purpose in the interests of persons other than
who receives the property.
"Until the time the trust was introduced in the Argentine positive
right, there was no other means available to carry out acts of
of the property could achieve a similar result. Although
was conceivable that the owner establish the fate of their property
projection for the future, according to a third, missing
rules that would provide the necessary instrumentation and ensure full recognition of the
expression of will.
"Now that the law has been inserted 24441 into the main trust
civil law, it should be noted the flexibility of this institute, co-
defined --- Laureano
* Seminar Moreira, November 2001.
Rev. of Not. 868 ACADEMIA NAC. THE NOTARIES page. 100
mo contract and located, therefore, in the broad field of
autonomy of the will. As discussed below, has many applications, both
in particular order and in the world of business and practical interest
derives precisely from three main attributes that set out below:
a) The property in question are disposed of by its owner, who transferred
'in a fiduciary capacity. " It is not the same as the transfer of ownership by way
consideration or not, but it is an act of disposal holder.
b) The transfer 'in a fiduciary capacity' surrounding the property
immunity from creditors of the receiver and creditors
original owner of the recipients of the goods.
c) The goods are covered by a management regime
according to its nature and intended destination, being the holder
subject to obligations derived from reason and the nature of management that has been entrusted. " Intention of this work
The intention of this work is of interest to the notary on
advantages of hand, as a possible solution to a need or problem
posed by requesting the use of the trust agreement and the subsequent transfer of property
in trust.
In other words, to popularize the concept, subject, key features,
the operation of this figure, for use in the field of business
simple individuals, societies
family and the small and medium enterprises , suggesting its application
this side of the world's largest financial and real estate. WARNING
. In this paper I will address only the legal basis
of a trust agreement, without including in the analysis or testamentary trust
financial. Analysis of the law
24441 Subjects: trustor, settlor or constituent
is the owner of the property, according to the trust agreement is
agree to transfer the trust property to a person or entity, which will be the trustee
(art. 1).
Sets the destination of the assets transferred to the termination of the trust
(arts. 1 and 4 inc. D).
has the power to designate the beneficiary and the trustee, which in both cases can be
itself (arts. 1, 2 and 4 inc. D).
can restrict the trustee the power to dispose of or encumber the assets transferred
(art. 17).
can retain the power to revoke the contract (art. 25 inc. B).
can request the judicial removal of the trustee for breach of its obligations
(art. 9 º inc. A).
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can prevent by contract that the recipient forward
rights (art. 2).
With judicial authorization may bring an action in defense of the trust property
when unreasonably fails to do so the trustee (art. 18).
will be the beneficiary if they resign or shall not have to be the designated
or any other beneficiary or trustee (art. 2). Trust
is the natural or legal person to which the trustee conveys the property
of the trust assets (art. 1).
exercises his office for personal gain who is designated in the contract (beneficiary),
which may be the same settlor (art. 1).
the end of the contract must transfer ownership of the trust assets
who is established in the contract (or its successor trustee),
can also be the same settlor (arts. 1 st, 2 nd inc. D). Only
may make a public offering to act as trustees of financial institutions
or specially authorized companies to act as such
(article 5).
should act with prudence and diligence of a good businessman,
on the basis of trust that you have placed (art. 6).
must necessarily account for their management to the beneficiary,
least once a year. The settlor, if they have been agreed in the contract
(art. 7).
unless otherwise stated, is entitled to reimbursement of expenses and
of retribution. If the contract does not fix, so will the judge (art. 8 º).
can only resign if it is intended in the contract
(art. 9 inc. E).
Court may be removed from office, at the request of the beneficiary or settlor
for breach of their duties (art. 9 º inc. A) ...
shall cease by death, legally declared disability, bankruptcy
and also, if it were a person, for settlement in the event of dissolution
(art. 9 º incs. B, c and d).
The trustee lost will be replaced by substitute
designated in the contract or the procedure in the same (art. 10 º).
If the substitute under the contract or not accept the contract does not provide for
anything about it, the judge will appoint a financial institution or a corporation specially authorized
by the National Securities Commission to act as financial trustee
(art. 10 º).
In cases of replacement, the trust assets will be transferred to
new trustee (art. 10 º).
shall be responsible for the liquidation of assets if
insufficient trust assets to satisfy its obligations
execution of the trust, must then dispose of the goods and deliver
produced creditors in the order of
privileges provided for bankruptcy (art. 16 º).
Rev. of Not. 868 ACADEMIA NAC. THE NOTARIES page. 102
not need under the settlor or beneficiary
dispose or encumber the trust property when the purposes of the trust require,
except what had been agreed in the contract (art. 17).
is entitled to exercise all appropriate action to defend
the trust property, as against third parties as against the beneficiary
(art. 18).
has prohibited from acquiring for himself the trust property (art. 7).
may not be beneficiary or trustee (art. 7 and
majority interpretation of the doctrine, except for the guarantee trust).
Your liability (Article 1113 of the Code. Civil)
extends to his personal assets when damages can be reasonably sure that the thing
trust property will END result, did not (art. 14 º). Beneficiary
is the natural or legal person individually in the contract to receive the benefits of management
entrusted to the trustee (sections 1 and 2 º).
If the person appointed does not occur while the contract must contain
in this data can be identified in the future (art. 2).
may designate more than one beneficiary. In that case, unless otherwise indicated
the contract, will attend the benefits equally (art. 2).
substitute beneficiaries may be designated for cases de no aceptación,
renuncia o muerte del titular (art. 2º).
En caso de vacancia total, el beneficiario será el fideicomisario y en su defecto
el fiduciante (art. 2º).
Salvo disposición contraria del contrato, los derechos del beneficiario se
transmiten por causa de muerte y el mismo beneficiario puede transmitirlos
por acto entre vivos (art. 2º).
Si el beneficiario fuera un incapaz, el plazo del dominio fiduciario se extiende
hasta el cese de la incapacidad o la muerte del beneficiario (art. 4º inc. c).
Puede solicitar al fiduciario rendición de cuentas según lo establecido en el
contrato. Sin perjuicio de ello, el fiduciario deberá rendirle
accounts with no more than once a year (art. 7).
can order, with citation of the settlor, the trustee's judicial removal
for breach of its obligations (art. 9 º inc. A).
beneficiary's creditors may be subrogated to his rights or
exercise their rights to the fruits of the trust assets (art. 15 º).
Unless otherwise agreed, it is not necessary
consent to dispose of or encumber the trust property (art. 17 º).
With judicial authorization may bring an action originally
should be borne by the trustee (art. 18 º).
Trustee is the person
whom the trustee must convey the trust property
when the deadline or the status of the trust extinctive (arts.
1, 4 º inc. d).
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based attorney may be the settlor, the beneficiary or any other natural or legal
, except the trustee (sections 1 and 7).
will be the beneficiary in case of vacancy by resignation or absence of the person originally designated
(art. 2).
His successors have the same rights (arts. 3262, 3263, 3264 and consistent
Code Civil). Key features of the trust
is indispensable set up on contract or by will.
not couched in the law, no limits are set, except in the financial-
trust in respect of legal proceedings and transactions that the parties may freely agree
purpose of the trust agreement (
full autonomy of the will).
The purpose of the trust must be clearly stated in the contract, and she
frames and limits the powers of the trustee.
The owner (trustor) conveys, without any pecuniary consideration,
to another person, whether natural or legal person (trustee) the trust property of certain goods
.
The contract must clearly identify or describe the characteristics or requirements
goods that constitute the trust estate.
Although the transferor (settlor) does not receive any consideration, not
can say that is a typical transfer for free.
transfer is a "fiduciary", meaning that it is framed by the trust the settlor
inspires trust, which ultimately is the root cause
designation.
The dispositive powers of the new owner are conditioned by the purpose,
the reason, the nature of management that has been entrusted with, in
occasions, the letter of the contract, which can impose
consult the settlor or a beneficiary before dispose of or encumber the trust property.
The purchaser (trustee) shall exercise the rights under their property
fiduciary managing the trust assets for the benefit of
natural or legal person (beneficiary) listed in the contract.
The beneficiary or beneficiaries, as they may be one or more natural or legal, should be individualized
clearly in the contract or at least
given the necessary data to do so in the future. Having
concur plurality of recipients by equal parts, unless otherwise
the contract.
may be designated, with the same identification requirements, beneficiaries
substitutes.
substitution occurs when the first beneficiary does not accept, surrender or die
.
In case of non-acceptance, resignation or death of the beneficiary, without having planned
substitutes, the trustee and beneficiary, and lack of it, it will
the settlor.
may be prohibited in the contract that the recipient forward their rights
Rev. of Not. 868 ACADEMIA NAC. THE NOTARIES page. 104
a universal or singular successor, ie due to death or inter vivos act
.
management concept is very broad, always be exercised in compliance
purposes of the trust.
The conformity of the settlor or the beneficiary to dispose of or encumber the trust property
not be necessary, except that they have been agreed in the contract
.
The trust assets are assets affected
purpose of the trust and, therefore, be attacked by both the creditors of the former owner
full (trustor) and creditors of their respective owners
Limited (Trust).
The only action that permitted the creditors of the settlor is the fraud.
Any natural or legal person may be trust, but to offer publicly
as such should be a financial institution authorized under the law
matter or a legal person
the National Securities Commission has authorized to act as trustee.
prudence and diligence of a good businessman,
under contract law and set the limits of the rights and obligations of the trustee.
The trustee's personal assets are not liable for the obligations
this contract in the execution of the trust. Unless expressly recognized
gratuity in the contract, the trustee has
entitled to remuneration and reimbursement of the costs to place while
the exercise of their duties.
In any case the trustee can be relieved of its management accountable
the beneficiary, rather, must do mandatory
once a year.
If I had not specifically reserved in the contract, the trustee may resign
no compliance with the management responsible.
The settlor or beneficiary, in this case-are summoned to attend justice
request the removal of the trustee for breach of its obligations
.
death, incapacity or bankruptcy of the Trust declared a cease
cause of its management as such.
If the trustee is a legal person, its dissolution, liquidation or bankruptcy
cause the termination of its management as such.
The contract should provide for the replacement of the trustee, and was appointed his substitute or agreeing
the procedure to follow in case of vacancy.
If it becomes impossible to meet the replacement trustee
under the contract, as such court shall appoint a financial institution or a society
specially authorized to act as financial trustee for
the National Securities Commission.
For the transfer of ownership of the assets of the settlor to fiduciapág. NP 105
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rio, compliance with legal forms according to the nature of the goods
.
If the property were recorded, for third-party effectiveness should be
reason for transfer.
If this is so stated in the contract, the trustee may acquire ownership
fiduciary of assets acquired with the fruits of the trust assets,
or with funds raised by their willingness.
This incorporation should be stated in the act of acquisition and registration
dominial.
The settlor can not revoke the trust if he had not
reserved this possibility in the contract or subsequent agreement.
Heritage Trust can not be found bankruptcy.
In case of failure of the trust assets to meet
purpose of the trust, the trustee will liquidate the assets and deliver the result
creditors, according to the order of the privileges provided for
bankruptcy.
The trustee may, and should take all the actions necessary to defend
Heritage Trust, even against the recipient. Failure to do so,
the settlor or the beneficiary, prior judicial authorization, may supplant
in that role. Creditors of the beneficiary
be operable on the fruits
Heritage Trust and become subrogated to the rights of the former.
The contracting parties may establish the term or condition establishing trust
extinctive they want. The maximum term of the trust is
thirty years, except that the beneficiary is incompetent, in which case
extends until the day of termination of disability or dies.
The parties have wide latitude to provide any cause of extinction
the trust.
On the expiry or extinctive status of the trust, the trustee is required
delivered to persons designated as trustees, or its successors
, the assets comprising the trust assets in compliance with
documentary forms and formalities necessary for that
operate transfer and, case is registered in the records. Terms
basic
the contract must contain a) Mention essential for the legal nature of the trust
Although the law does not expressly stated, the contract must clearly arise
what is entrusted to the Trust management.
must indicate "the purposes of the trust", and that compliance
that purpose by the trustee is the essential cause, the economic plan, family
, altruistic, for the fulfillment of which the settlor conveys property owned
Trust.
The existence of a key request to the trustee and the necessity of circumstances
management that arise implicitly entrusted the letter of
the following articles of the Law 24441:
Rev. of Not. 868 ACADEMIA NAC. THE NOTARIES page. 106
1 A: the trustee is obliged to exercise the trust property for the benefit
who is designated in the contract.
4 º inc. e): the contract must express ... rights and obligations of the Trust
.
Article 6: the trustee must comply with the obligations imposed by law or convention
with prudence and diligence of the good businessman
acting on the basis of trust placed in him. Article 9
inc. a): judicial removal of the trustee for breach their
obligations.
Article 17: the trustee may dispose of or encumber the trust property when required
the purposes of the trust ...
b) notices required by law
1) Identify the settlor, the trustee and the beneficiary or to
data to identify the latter in the future (art. 2).
2) Identification of the property subject of the trust or, if
the description of the requirements and characteristics to be taken (art. 4 º
inc. A).
3) Determination of how other property shall be incorporated
the trust (article 4 inc. B).
4) The term or condition imposed makes the trust (article 4 inc. c).
5) The destination of the goods at the end of the trust (article 4 inc. D).
6) The rights and obligations of the trust (article 4 inc. E).
7) The substitution or replacement of the trust (article 4 inc. E).
c) Additional provisions of the law can be repealed in the contract
These property relations or management of trust assets that the law resolves
as a supplement, but that the parties may derogate agreeing
other solution on the contract.
1) EQUALITY BENEFICIARIES: the solution is legal if the
contract does not say anything about it. However, the contract can be established
different proportions to distribute the benefits (art. 2).
2) FREE TRANSFER OF THE RIGHTS OF BENEFICIARY:
the solution is legal if the contract does not say anything about it. However, the contract may prohibit the transmission
the rights of the beneficiary,
both inter vivos and by cause of death (art. 2).
3) TRUSTEE'S RIGHT TO RECEIVE A
SALARIES AND REIMBURSEMENT OF EXPENSES: If the contract says nothing about it, this is the solution
legal. However, by contract can be established free
the work of the trustee (art. 8 º).
4) THE TRUST CAN NOT RESIGN: is the solution legal, but the contract may authorize
(art. 9 º inc. e).
5) IF YOU HAVE PROVIDED IN THIS AGREEMENT, THE ACQUIRED ASSETS
WITH THE FRUITS OF THE ADMINISTRATION OR SUBROGApág. NP 107
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TION NOT JOIN THE HERITAGE TRUST: the legal
solution, therefore, to be part of the estate trustee
the goods to be purchased with fruit or with the provision of capital trust must provide the contract
. In that case, you must determine how
that such property will join the Heritage Trust (arts. 4 º inc. by
13).
6) THE TRUSTEE UNDER NO NEED the settlor or beneficiary
TO PROVIDE OR SEVERE PROPERTY
TRUSTED: for the law, the trustee's powers are limited only by
purposes of the trust. May be limited by contract
further, adding the need for the express
the settlor or beneficiary. We shall return to this point so
related business attorney (art. 17 º).
7) The Trustor CAN NOT revoke the trust, is the solution
of law. But the trustee can change it, reserving that power
in the contract (art. 25 ° inc. b).
8) IN CASE OF FAILURE, THE HERITAGE TRUST
MUST BE SETTLED: he is also a legal solution. However, the contract can be agreed
the settlor or beneficiary
authorized to provide new resources to avoid liquidation (Article 16).
d) basic appearance, if not included in the contract, solve
justice is a basic fact of the trust for which
the law does not bring extra solution, but given the silence of the contract , refers
the case to justice.
1) APPOINTMENT OF TRUSTEE OR SUBSTITUTE ESTIMATED
a procedure for choosing: if the contract failed to appoint substitute trustee
or does not specify a procedure to fill the vacancy
, the judge will appoint a trustee to a financial institution or a society
specially authorized by the National Securities Commission to act as financial trustee
(art . 10 º).
e) Understanding referred exclusively to the parties
There are basic issues which the parties are free to incorporate or not
the contract, expanding legal remedies.
1) ESTABLISH OTHER GROUNDS FOR TERMINATION OF TRUST:
the law defines two reasons: to meet the deadline or extinctive
condition and the decision of trustee to revoke the trust, provided there
reserved in the contract. However, the parties may freely set in the contract
any other grounds for termination of the trust (art. 25 º
inc. C).
2) ANY OTHER RELEVANT CONTRACT ON THE ADMINISTRATION OF THE TRUST
: framed by the concept of autonomy
of the will, trust law allows parties reRev.
's Not. 868 ACADEMIA NAC. THE NOTARIES page. Regulation 108
freely in any future contingency contract for the development of management
entrusted to the trustee.
Analysis of some cases of special interest
Effects Notarial contractual clause which requires the consent of the settlor or beneficiary
to dispose of the trust assets
(art. 17 º)
Front breach of a contractual provision that imposes on the trustee
the need to have the consent of the settlor or beneficiary
to alienate or encumber the trust property, the doctrine between
two positions: a) must be declared ineffective act
device has not obtained such consent; b) only makes it a mere failure by the Trust
, with consequences only internally to
relations between subjects of the trust agreement, not to affect the
acquirer.
For my part, I correct the first of these conclusions,
indicated in paragraph a).
I think that the express reference to article 17, Law 24441, when it allows
than by the contract was cut dispositive powers of the settlor,
provides one of the basic features of the institute of the trust.
This legal entity must be analyzed as an independent structure with its own characteristics and
tipificantes, one of which would be just this:
the possibility of restricting the powers of the trustee.
not appear consistent analysis of the scope of the domain that has the owner trustee in the light
of Articles 1364 and 2612 of the Civil Code when
respectively, ban imposed by contract not to alienate the clause declared invalid
or disposition made by a landlord, but has been forced to do so
.
These articles set a principle applicable to such property right structure
as the Civil Code, but not necessarily be extended to the trust property
, especially regulated by law and later
own basic characteristics.
the same quality of legislation, that is, creators of a new institution with its own characteristics
, Articles 14, 15 and 16 of Law 24441 when
repealed in respect of the owner trustee, the universal principle recognized
about the goods registered in the name of the debtor
are the common pledge of his creditors.
If it were only one aspect referred to the internal relationships of trust
subjects he had not specifically mentioned, and
that this situation would fall within the autonomy of the parties contracting
and lag in the estimates established in paragraph e) of Article
4 of Law 24441, concerning the rights and obligations of the trustee.
When it has been stipulated in the contract, the need for consultation to the trustor
or beneficiary by the trustee is an issue that transcends mere
internal relationship between ellos.Así have recognized Propaganda Records. NP 109
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usual piety, to establish the need to record and publicize this limitation of power devices
owner trustee.
As always, the notary will find this situation in two moments of its role
:
a) upon request to authorize a deed in which an act is documented
device owner does not have fiduciary compliance
after the settlor or beneficiary, despite the contractual provision that imposes
have it;
b) having to use as a title history
issued a trustee sold the good without the prior consent of the settlor
or the payee, when required by the contract of trust.
In these cases, the notary, whatever their doctrinal position on
of perfection of title, has two possibilities:
a) refuse to provide their services, b) accept
intervene and advise the contracting parties the possibility of imperfection of title and doing so stated in writing
it authorizes.
In this as in other cases where different approaches are evident
doctrine, the professional alternative to the notary is the second since the election
way forward is for the contracting parties. Here, a
being informed by the clerk, may occur
particular advice and decide whether or not to grant writing. Importance
foreseen the possibility that the settlor can revoke
advance the trust (art. 25 º inc
. B)
This is one of the inevitable that must be treated with the settlor
in the stage of the process called the doctrine of attorney as "first audience",
ie at the meeting or at previous meetings to be shaping up the contract
that ultimately would result in the writing.
Despite being based on trust that he deserves the trust settlor,
should be aware that it may diminish or disappear
over the long term than the law allows management to agree to
trustee.
then appears as a good solution, rather than an exercise in divination
about what the proper term for the trust, the settlor
in the contract reserving the possibility of revoking the trust
when necessary.
Obviously, as the trust agreement contains statements
common will and trust settlor should be noted
interest to the revocation of this untimely and, where appropriate, compensation provided.
Revocation of trust by fraud
settlor's creditors (art. 15 º)
As I said earlier, the law creates a specific system 24441 and the Rev.
Not. 868 ACADEMIA NAC. THE NOTARIES page. 110
typical for the operation of the trust domain, but by no means
can be inferred that have repealed the legal solutions to existing situations
its constitution.
therefore to distinguish between two legal situations
settlor's assets, before and after they agreed to set up property trust
.
Once established, the trust property has its own ground rules and operating
, for example, a separate estate of the settlor and the trustee
, subject in their ability to manage and dispose
the entrusted management purposes and contractual expectations.
But to what extent this transfer is effective against
who already had the real possibility of attacking the assets of the settlor, for example, their
creditors? The same law expressly makes clear 24441 to say in his article
15, they retain the action of fraud. The same is true even though the law would not have said
. Consequently, in this sense does not innovate, so
stated that that is a redundant expression and that the situation would
identical, although nothing had been expressed in the law.
Therefore, forecasts and interpretations of law, jurisprudence and doctrinal
on fraud-action-action to set aside the legal acts (Article
961 and related provisions of Civil Code) are in full force and are applicable in respect of acts
provision made to be a property
Trust. Same
assessment can be made on the application of Articles 118 to 120 of the Act
24522.
can recognize then that, despite speculation by some highly imaginative
operators, the use of trust
not ensure that the settlor can oppose it with some effectiveness against the actions of creditors whose claims
preceding the date of
fiduciary transfer of the domain. Can
reconciled the trust and the
legitimate heirs?
Unlike what was stated in the previous paragraph regarding the possibility
for the settlor's creditors to demand the repeal of the acts
held by it in injury or fraud of their rights, the law 24441
says nothing about the possibility of the settlor's heirs to sue,
the latter's death, the reduction of
fiduciary transfers that might affect legitimate.
Faced with this silence of the law, the doctrine is divided:
a) ensuring that any transfer of property trust
exceeds the disposable portion may be reduced by the settlor's heirs
;
b) those who understand that legitimate regime has been modified by
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based notarial law 24441, as it is a law in the same range as the Civil Code, by amending
, timely as it could be said of the law 14394. Therefore
and within the scope of this work, I think the message to
notary must be: to advise on these situations, but
any way obstruct or attempt to dissuade the settlor, it is impossible to predict today
which will, in this and in a few years, the doctrinal and jurisprudential
position.
could also distinguish whether or not they are heirs heirs
beneficiaries of the trust management or recipients end of the trust assets
(trustees). Can
designated more than one trustee?
No legal provision permitting. Everything depends on a correct and detailed regulation
way to take decisions, in a kind of plural
between trust administration. It can also be collegial, is
say the decisions between the Trustees taken in the same way in a directory
corporation, specifying the quorum, majorities
necessary, how to take the documentation and reliable record of
decisions.
management can also be distributed among the trustees, including
sector-related professional expertise with each of them.
For the same reasons stated in point
contractual limitations on the powers available to the trustee, I think the forecast
Civil Code regarding the administration and disposition of condominium
rules do not apply to domain trust, so that can be harmonized and up
repealed by the contract. Can
hired a trust between spouses? While the domain
trust born of transferring ownership of property to a trustee
for the rest of this legal institution is based on the figure
of an order or command that is made to the trustee.
It is then to reconcile this dual nature: first, business
transmissive property on the other, an order to act, not by command
of obedience, but as a contract.
In principle, business transmissive property onerous
-sale, transfer rights onerous, barter, payment in kind and similar-
character as well as free-gift and duty-free transfer is prohibited between spouses
.
however, allowed the contract of mandate and, in fact, daily
granted powers of attorney between spouses.
Moreover, the transfer of the trust property is not necessarily onerous or gratuitous
.
What, then, the plot that should prevail in this business complex:
the banned or allowed? I think
touring the Civil Code can be stated that our deRev.
's Not. 868 ACADEMIA NAC. THE NOTARIES page. 112
Rech, to prevent contracts between spouses, it is necessary to find a
expressly prohibited by law.
Thus:
Art 1217: The Convention on the property that each leads to marriage
and donations that doeth the husband to the wife, can only be
before marriage.
Article 1231: The wife can not do in the marriage contract
a donation to the husband. Art
1358: The purchase and sale agreement can not take place between husband and wife
. Art
1441: There can be no transfer of rights between those who can not hold together
buying and selling.
Article 1490: Can not exchange, those who can not buy and sell.
Art 1494: All the provisions on the price, consent and other requirements essential
sale is applicable to the lease. Art
1807: They can make donations: 1) the spouses to each other during
marriage. Art
2073: Take in the purchase and sale of annuity transfer
movable or immovable.
not find, however, no prohibition to the mandate,
location service, the annuity with cash transfers, mutual, bond,
management rights of others.
If the transmission is not profitable for the trustee, on the other hand, has
prohibited from acquiring the assets it holds, I see no problem
public order, arising from the existence of a couple, that may be agreed between spouses
a trust agreement in which, obviously,
what prevails is the trust and the importance of the order and in which the domain transfer
Trust has no other purpose than to allow the formation
a special fund, administered the funds will
it to put the order.
emphasize and reiterate: as the trustee can not acquire for itself
property in trust, never be covered up with a trust
a sale or donation between spouses. Appendix
Outline of a type of trust deed
Case Management: management trust agreement.
transfer property in trust. The youngest recipient of the settlor.
broad discretion available to the trustee. The trustee is the settlor
.
(Alternative): no power available initial assets.
This is a management trust. This means that the owner-trustor
-transmitted to the administrator-trust-the trust property
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usual one or more immovable properties for administered in accordance with the operating
possibilities that allow for its destination.
In the initial example, the trustee may do all such acts
necessary to fulfill the purposes of the trust, including acts of disposition or encumbrance
because the contract does not forbid it.
In the alternative, only allows the trustee
dispose of or encumber the trust property if we had unquestionable authority of the settlor.
Net revenues obtained by the administration, after deduction of ten per cent
remuneration of the trustee and a like sum to
reserve fund must be submitted annually to the beneficiary so far
cessation of the trust, which will come when first anniversary of the day
get a college degree for the practice of a profession regulated
or turns 25 years old, whichever comes first.
In the original example, the trust assets can be modified by replacing
or replacement of property held in trust originally
without consulting the trustee, in the alternative, with your permission indubitable.
Accordingly, net income both examples of the administration
not enter the trust assets, and imposing deliver, less
of remuneration of the trustee and contribution to the reserve fund, the beneficiary.
At the end of the trust, the trust assets revert to the settlor
heritage or their heirs universal or singular. The latter is given
case when the settlor has transferred by inter vivos or testamentary trustee
their rights.
rights are established and duties of the trustee, including his remuneration and replacing
. Also, determine the timing and the dates on which
the trustee is accountable.
also refers to the rights of the beneficiary, being forbidden the possibility
agrees that the law, to give up their rights.
Determine the settlor's rights, reserving the possibility
to revoke the trust, a right which the law will agree only if
explicit recognition in the agreement.
recognizes the settlor will be possible to instruct the trustee regarding the management
. These instructions are binding on the trustee
but remain in the area internal trust without projecting third
who contract with the trustee.
deed is imposed for any agreement to amend.
It provides that the trustee is the repository of all documentation, including
titles.
is expected for failure of the trust assets to meet
the purposes of the trust.
are fixed addresses of the parties.
Transfer is the trust domain. Appearing
. (Owner settlor, his spouse and transferee trustee)
Rev. of Not. 868 ACADEMIA NAC. THE NOTARIES page. 114
INVOLVED itself ... and EXPRESS: A) Trust Agreement
OF DIRECTORS. AA (settlor) and BB (TRUST)
agree to the establishment of a management trust on the property
that detailed below, in which the trustee shall have the powers, obligations and limitations
him by the law, in the
terms and conditions thereof, as they were not modified, expanded, limited or deleted by this
. To this end AGREE:
FIRST: PURPOSE: To manage, maintain, operate, replace and dispose
trust assets according to their nature,
care and precautions that may require a good businessman. The powers conferred
the trustee are wide, full and unlimited.
(VERSION) ONE: PURPOSE: To manage, conserve and exploit
the trust assets according to their nature,
care and precautions that you may require a good businessman.
powers conferred on the trustee are wide and full with the sole limitation of not having
a consideration or free of property trust whose domain is
broadcast this event. We are specifically prohibited, for the same
: transfer, encumber or given as security, without prior authorization
reliable trustee, granted by instrument indubitable. Transfer is excepted
domain to the trustee or his successors to
time of termination of the trust, or third-party creditors or purchasers
in case you need to make the goods be enough to fulfill the trust
.
SECOND: OBJECT OF THE TRUST PROPERTY: The form: a) Real estate
listed at the end of this and that the settlor
forward in trust to the trustee. b) All types of goods entering
replacement or substitution of the above written.
(VARIANT) SECOND: OBJECT OF THE TRUST PROPERTY: The
are: a) Real property that is listed at the end of the present and transmit the settlor
in trust to the trustee. b) All kinds of goods
, with the consent of the settlor reliable
indubitable given an instrument, join the replacement or substitution
indicated in point a) above.
THIRD: BENEFICIARY: CA ... personal data, son of the settlor.
FOUR: TERM. This contract will run from today until
three hundred sixty (360) calendar days from the date the beneficiary get his college degree
for the exercise of a profession regulated in the
Argentina, or the day the beneficiary twenty five (25)
years of age, whichever comes first.
FIFTH: DESTINATION OF GOODS TO THE END OF THE TRUST. DESIGNATION
FIDEICOMISARIO.Al
occur completion trust and after discharge of all obligations, the remaining assets will be broadcast
full ownership to the settlor or his heirs
universal or singular, who for this purpose are designated trustees.
SIXTH: RIGHTS AND OBLIGATIONS OF TRUSTEE. The fiduciapág. NP 115
Etchegaray: Possible uses of the trust
in hiring based attorney
usual river has the broadest powers and authority to hold office,
comply with and enforce the asset and liability obligations imposed on it
by this contract and the law of matter. To that end, acting with diligence and prudence
on the basis of trust placed in him,
have the most extensive legal capacity to acquire rights, incur obligations and stand trial
respect of the trust assets, with the limitations contained
the law of matter and in this contract.
annually must file accounts and beneficiary to the trustee as
documented within ninety (90) days of the December 31 date set for closing
the years. The trustee is entitled to be reimbursed
the costs incurred in the interest of the administration. If the losses cast
financial year, the deficit will be refunded by the trustee.
(VARIANT) If the year then throw losses
deficit may be offset by the performance of trust assets.
SEVENTH: RESIGNATION, REMOVAL AND REPLACEMENT OF TRUSTEE.
The trustee shall cease its activities in the following cases: I) Resignation
submitted to the trustee. II) for removal at the request of the settlor or the beneficiary
order in both cases to subpoena testimony for the trustee.
III) On death or judicially declared inability of the trustee.
substitute trustee is appointed DD Lord (complete personal data).
If it has died or is incapacitated, unwilling or unable to accept
office, the substitute trustee shall be appointed by the settlor, within thirty days
have occurred due to resignation or removal.
In all cases the Trust effective change will occur once the property passed to the trustee
substitute. The transfer may be made by act
given by the settlor and the trustee ceases, or their rightful claimants, noting
forms required by the nature of the trust assets.
Where is sufficient to submit the court order
ordering the removal.
EIGHTH: COMPENSATION OF TRUSTEE. The trustee charged on management
ten percent (10%) of annual liquid
administration of trust property.
NINTH: RIGHTS AND DUTIES OF settlor. I) revoke this
contract at any time by notice to the trustee with an anticipation
of ninety (90) calendar days. The revocation will not have retroactive effect.
II) receive from the trust accounts documented accountability, ninety (90)
calendar days after the end of each fiscal year. The surrender
deemed accepted, if not observed within thirty (30) calendar days of receipt
. III) To sell their rights on this contract,
without prior authorization of the trustee. IV) Formulate,
within the purposes of the trust, on the administration of property held in trust
, which must be complied with by the trustee. V) receive, in full ownership
at the end of the trust, the trust assets. VI) In
shortfalls in the trust property, the settlor must pay
Rev. of Not. 868 ACADEMIA NAC. THE NOTARIES page. 116
agreed to the trustee's fees and expenses that would have made of its
pocket.
TENTH: RIGHTS OF BENEFICIARY. I) will be entitled to receive
year, after deducting the trustee's fees and an amount equal
to form a reserve fund, the fruits and revenues produced by
trust assets. If circumstances so permit administration, the trustee may advance
monthly to the beneficiary a
proportion of the annual settlement. The retention for the reserve fund to total it will cease
an amount equal to the average of average annual benefits.
The entire pool shall be delivered to the end
beneficiary of the trust. II) If the income, the higher the reserve fund were insufficient
to cover obligations in the administration of the trust assets,
the trustee may postpone the delivery of funds to the beneficiary until the trustee
resolve the matter. III)
The beneficiary may not transfer their rights to third persons or entities, whether by act inter vivos or
cause of death.
ELEVEN: AMENDMENTS TO THE PRESENT. Except the right to revoke
total settlor has reserved any modification on
of the powers, rights and obligations of the trustee shall be discharged
agreement between them and granted by deed.
TWELVE: DEPOSITARY. All instruments
trust assets held by the Trust will, who will be responsible for their safekeeping.
THIRTEEN: FAILURE of the Trust Estate.
SETTLEMENT. PROCEDURE. In case of failure of assets under trust
to meet the obligations of the trust, the trustee will be the liquidator
and conducted in accordance with its nature and
conditions prevailing in the market. The remainder will be given to creditors in the order
the privileges set for bankruptcy. The settlor
may request the removal of the liquidator, in the same circumstances
it can request removal the trustee.
FOURTEEN: ADDRESSES. The parties set their homes in the following
:
Trustor / Trustee Trustee ... ... ... These homes
Beneficiary can be substituted for each of the parties, provided that
reliably communicate to others.
FIFTEEN: TERMINATION OF TRUST. This trust
be extinguished by: I) Compliance with the condition contained in clause four of this
. II) On the revocation of the settlor under clause NINTH
present. III) For failure to fulfill the purposes of the trust
. IV) by decision matching trustor and trustee.
V) Any other ground provided for in this contract.
B) TRANSMISSION OF TRUST ESTATE. FIRST: AA
CONTRACT PERFORMANCE IN TRUST TRANSMITTING A
page. NP 117
Etchegaray: Possible uses of the trust
in hiring based attorney
usual BB TRUST MASTERY of the following assets: (
DESCRIPTION OF PROPERTY TRANSFERRED IN ACCORDANCE WITH TITLE OR FLAT).
- Second: a) The transferor transfers to the purchaser all the rights inherent to the domain
trust and possession of the property described,
in the terms and conditions of the above. b) states that: 1)
is not inhibited to dispose of his property; ... (Continue as in any writing
domain transmission) ... THIRD: The purchaser declares: a)
to accept the transfer of ownership, b) found in possession of the property transferred from
... (continue as in any other writing
domain transfer). FOURTH: The spouse of the seller gives the nod ...
NOTARY RECORDS: Yo ...
LEO authorizing the appearing that the issued and signed before me, I can attest.
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