Section 11.2 Nature of Custodianship

• Library: Trusts and Powers 2013 Supp

B. (§11.2) Nature of Custodianship

The term “custodianship” is not as well-defined or understood as the terms conservatorship, trust, and agency, although custodianship has been around for years. Sometimes a minor’s custodianship may be referred to as a statutory trust or an independent conservatorship without court supervision. It differs from a trust because the right to possession and control of the custodial property resides in the custodian, and the legal and beneficial title to the property in a custodianship resides in the minor beneficiary. The minor’s ownership of property in a custodianship is the same as the minor’s title interest in property administered by a conservator under § 475.130.2, RSMo 2000. Judson v. Walker, 55 S.W. 1083, 1085 (Mo. 1900). Under a trust, the trustee holds legal title together with the right of possession and control, and the beneficiary has equitable or beneficial ownership.

Although neither a custodian nor a conservator has title to the property they administer and are similar in that respect, the broad powers and discretion granted custodians in the law, as contrasted with the necessity of following the more detailed...