In a basic trust these section generally ensures that the grantor remains in control of the living trust. It usually stipulates the right of the grantor to amend or revoke the trust at any time, therewith rendering the trust revocable. In addition it clarifies the sole role of the grantor as grantor, trustee and beneficiary of the living trust. The declaration therefore grants the grantor the right to retain all income, profits and control of the trust assets until he or she dies.

Being a diligent trust attorney in San Francisco, I regularly include a homestead right within this section. Such a feature is often used by provident estate planning attorneys in California to uphold homestead rights for the grantor despite the fact that he no longer legally owns the respective property (because it has been transferred to the trustee).

Another point of high importance is a provision dealing with incapacity of the grantor. Because the successor trustees does not receive any control of the trust until the grantor dies, there must be a precaution for the case that the grantor becomes mentally ill or otherwise unable to manage his own estate. Usually a clause stipulates that the successor trustee takes over control of the trust as soon as the grantor becomes incapacitated. This section is often complemented by naming someone (often a medic) who is entitled to determine grantor’s state of mind. Often a person (whom the grantor literally trusts) is named here, e.g. the family doctor.

Finally a provision clarifies that the trust becomes irrevocable upon the death of the grantor.