Probate and trust law is substantively complex. This is due in part because of the terminology. Although the terms do not apply exclusively to probate matters, there is often confusion about the distinction between a “resulting trust” and “constructive trust.” Contrary to what it may seem, these really are not probate or estate concepts. Further, neither of these are trusts in the sense that they are expressly created by an individual to circumvent the probate administration process, protect assets, etc. Instead, both of these theories are remedies a court may order when property has been wrongfully taken or transferred.
A resulting trust arises where property is transferred under circumstances indicating that the transferor wanted the transferee merely to have a beneficial interest in the property. A constructive trust may be imposed by a court to provent unjust enrichment. It may be appropriate where a person who holds title to property is under a duty to convey it to another on the ground that he/she would be unjustly enriched if he were permitted to retain it. An example of when a cosntructive trust may be appropriate is when an individual misappropriates assets and generates income from those assets. In such circumstances, a court may construct/create a trust so that the principal amount of the asstets and the gains/income are returned to the wronged party. A constructive trust arises without regard to the intention of the parties to the transaction.
Contat regarding resulting trusts, constructive trusts, express trusts or probate litigation.