Among the various distinctions that can operate in the field of trusts is of particular importance, the difference between domestic and foreign trust or trust outside. The first phrase is an allusion to the trust alleging goods (as well as the venue, the residence of the beneficiaries and the administration) mainly located in a different country (in this case in Italy) from that whose law has been chosen for the purpose of the discipline. The trust is foreign or external vice versa whenever there is a coincidence between the sort whose law is chosen in order to cover the phenomenon and the country to which they are most closely related to other important elements (ie the office, administration, etc.) .
Significantly problematic arises the union regarding the validity of the trust site. In this regard, one wonders, however, whether to censor the trust created in Italy by deducting real estate sites in our country if the recipient is not a resident abroad. Such a trust would be characterized by a single foreign element, namely the law to which they refer in order to identify the legislation to which it would be subjected. The answer more satisfying in this regard seems to rely on the concept of evasion of the law (art. 1344 of the Civil Code.). Each time that you would put your trust as a means to circumvent the mandatory rules or otherwise excluded from the availability of parts it would become an instrument of their breach as such subject to an assessment in terms of nullity. Consider the establishment of a trust for purposes of distribution of the assets of the estate in such a way as to be substantially less than the rights of the heirs, or that to which it gives life through the transfer of assets of a company in a state of insolvency in order to reach an apportionment of the assets difformemente compared to institutions in bankruptcy (Milan Court, by order of 16 June 2009). The internal self-declared trust where that settlor, trustee and beneficiary were even a conicidere, easily would be declared ineffective as a place to be to the detriment of creditors’ rights (Court of Milan, 7400/13).
In other cases, the formation of the same contrary, it appears fully permissible and effective. Equally objectionable, in terms of fraud of creditors, the institution would use to escape financial liability, like other acts of disposal (also questionable pursuant to art. 2901 of the Civil Code.). Beyond these aspects remains also appreciate the reference made by Article 13 of the Hague Convention. Only the application of the principle contained in it, is intended to preserve the possibility of non-recognition of a trust by a foreign country to which it is deducted when the important elements in the institution are more closely related to a country that does not knows, will show a case study to which they refer.
Yet the experience of the Anglo-Saxon countries is given to be able to distinguish between trusts serve to give a special allocation to family assets (income trusts) and trusts created for moral purposes (charitable trust), including trusts aimed at promuovimento of business operations (business trust) and trusts created for purposes of social security (pension trust).
He finally speaks of self-declared trust in the event that there should be no transfer of assets by the settlor to the trustee, being therefore these functions coincide in the head at the same subject. This assumption of trust is explicitly considered by some foreign laws and, to the extent that it is a legitimate application in our country, it must also consider the constitution allowed (Court of Reggio Emilia, May 14, 2007).