The trust fund is an institution regulated by the Civil Code that allows placing a destination constraint on the assets included in it (necessarily immovable property, movable property registered in public registries, or credit securities), thus creating a separate patrimony from the one constituting subject (such as married or civilly united persons, or even third parties), aimed at fulfilling the family’s needs.
Methods of Establishing a Trust Fund
In particular, regarding the methods of establishing a trust fund by a third party, it is expressly provided that this can be done either through a public deed (requiring acceptance by the spouses), or through a will (holographic, public, or secret).
In this regard, there is no doubt about the admissibility of attributing assets to the trust fund as a legacy, either as a real legacy (for example, the third party can directly attribute the assets to the spouses, constituting them directly in the fund), or as a modal legacy (for example, the third party can bequeath the assets to the spouses, imposing on them the obligation to constitute them in the fund), or as a legacy of a contract of a trust fund (for example, the third party can impose on the beneficiary of a testamentary bequest the obligation to establish a trust fund for a specific family).
The Controversial Issue of the Admissibility of Attributing Assets to the Trust Fund as an Inheritance
More controversial, however, is the admissibility of attributing assets to the trust fund as an inheritance.
Supporters of the negative thesis rely on the universal nature of the call to inheritance – and, consequently, on the heir’s succession to the entire patrimonial situation of the deceased (de cuius) – which would therefore be incompatible with the typical characteristic of the trust fund, which can only include the types of assets indicated above.
On the other hand, the positive view admits the establishment of the trust fund through inheritance, arguing that, in this case, the formation of the trust fund would occur ex-post and by exclusion, only on the categories of assets capable of being bound to the fund.
There is also an intermediate position, according to which the trust fund can be constituted not only through a legacy but also through the appointment of an heir pursuant to Article 588, paragraph two, of the Civil Code (so-called institutio ex re certa), or the division made by the testator under Article 734 of the Civil Code, in which cases the designated heir is assigned specific immovable property, registered movable property, or credit securities.
The Establishment of a Trust Fund with a Will: Is It Possible?
Regarding the applicability of the provision of Article 167, paragraph two, of the Civil Code (which requires the necessary acceptance of the spouses, by public deed, for the completion of the trust fund established by a third party during their lifetime), also to the hypothesis of establishing the fund through a will, the following distinctions must be made:
- In the case of a legacy, acceptance by the spouses would not be necessary, but each of them could reject the bequest, according to the general principles concerning succession by a particular title (although, prudentially, it is still preferable to formalize the definitive act of the legacy through a public deed in the presence of witnesses).
- To the extent that the admissibility of establishing the trust fund as an inheritance is considered, the acceptance of both spouses would be necessary, even if the bequest was made in favor of only one of them. This is because acceptance is not consent to the acquisition of the inheritance but rather consent to the establishment of the trust fund, which is necessary since, given the matrimonial nature of the trust fund, the testator is not allowed to modify the family’s patrimonial regime.
