A Declaration of Trust and a Trust Deed

the O Reilly connection

I was wondering is there a major difference between these two types of documents?

Peregrinus

No, there isn't. They are overlapping catogories.

A deed is a written document that deals with an interest in property and that is signed, sealed and delivered.

A declaration of trust is a document that declares trusts that affect property.

In other words, whether a document is a deed depends on the form of the document, how it is executed, etc; whether it is a declaration of trust depends on the substance of the document; what it says. So the same document can be both a deed and a declaration of trust, and the two terms can be used interchangeably for such a document.

(But the two terms are not identical; you can have a deed that is not a declaration of trust, and you can have a declaration of trust that is not in the form of a deed.)

the O Reilly connection

Does a Declaration of Trust have to be witnessed and notarized?

Peregrinus

https://www.boards.ie/discussion/comment/122660253#Comment_122660253

Witnessing

A deed needs to be witnessed so if your declaration of trust is contained in a deed, yeah, it has to be witnessed.

Similarly, a will needs to be witnessed so if a declaration of trust is included in a will — which is not uncommon — it will be witnessed.

But there's no general rule that declarations of trust, as such, need to be witnessed.

Notarization

Notarisiation isn't really a big thing in Ireland so, if you have an Irish document that is going to be used only in an Irish context, it is very unlikely that you will need to have it notarized. But it's a big thing when it comes to getting a document created under the law of one contry recognised and given effect to in the law, or in the courts, of another country. The usual reason for getting a document notarized in Ireland is tha tyou want to bring to to some other country and have it onforced or recognised there in some way. It's conceivable that you might want to get a decaration of trust notarised if, e.g., some of the trust property is in another country and you want to try to get the courts of that country to recognize rights in the property that arise under the trust.

But that's a very specific circumstance. In 99.9% of cases, the question of getting a declaration of trust notarised does not arise.

the O Reilly connection

I see. So when it comes to giving a trust a name, does that apply to Declarations of Trust in addition to Deeds of Trust?

Peregrinus

I don't understand the question. The document that establishes a trust will sometimes give it a name; more often, not. A trust can operate perfectly well without a name. If it's convenient for it to have a name and the trust documents don't give it one, the people who are interested in/affected by the trust can usually find one that they will use.

For example the will of John Smith mighnt include a clause to the effect that

"I leave my property Blackacre to my brother Joe upon trust for my halfwitted brother Jim and for any children he may have and, if Jim dies without being survived by any children or more remote issue, then on trust for the Charitable Society for Bewildered Gentlefolk or, if that charity no longer exists at the date of Jim's death, then on trust for any other charity with similar aims which my brother Joe may select."

That would typically be referred to, if the need arose, as "the John Smith Will Trust", but there wouldn't normally be any document formally giving it that name.

the O Reilly connection

That's awesome! Thank you!