1.1.4 Efficacy of Revocable Trusts as Will Substitutes
The rule that a trust cannot exist without a separation of the legal and equitable title raises an issue as to the efficacy of revocable trusts used as Will substitutes. In the basic revocable trust the settlor is the sole trustee during his or her competency. In addition, the settlor retains the right to amend or revoke the trust. Maryland has no case directly upholding this standard arrangement. There are cases, however, where the Court discusses revocable trusts without raising the issue as to such arrangements being illusory. In Upman v. Clarke, 359 Md. 32 (2000) the Court noted but did not otherwise discuss that the property was placed in trust initially with the settlor as sole trustee. Other jurisdictions have held that the revocable trust is valid as a trust because it has another beneficiary at the death of the settlor. Due to the revocable nature of the trust, however, this beneficiary has a very tenuous hold on the trust. See Restatement of Law of Trusts (Second) § 56 Comments f; Farkas v. Williams, 125 N.E. 2d, 600 (Ill., 1955) (“A contingent equitable interest in remainder.”) The Maryland Courts addressed an analogous situation in an irrevocable in trust in U.S. v. Baldwin, 283 Md. 586 (1978). In that case the settlor retained a life estate in the assets, the right to name himself as trustee, and a limited testamentary power of appointment so that he could name any person as the remaindermen. In Baldwin, the Court held that the remaindermen had “vested remainder in the trust corpus, subject to divestment by Baldwin’s exercise of his testamentary power.” Baldwin at 595. This created a beneficiary separate and apart from the settlor. See also Pope v. Safe Dep. &Tr. Co., 163 Md. 239 (1932). Presumably, the Court of Appeals would uphold the basic revocable trust arrangement if it is presented to it. It cannot be denied, however, that there is a fundamental tension between the basic principles underlying a law of trust and the recognition of a revocable trust as a “trust.” A trust is characterized by the bundle of fiduciary obligations that the trustee owes to the beneficiary.