By Jason T. Johns

A resulting trust is created by operation of law in Illinois based on the presumed intent of the parties and comes into being either at the time title vests, or not at all.  In re Wilson’s Estate, 81 Ill.2d 349, 355 (1980); First Nat. Bank & Trust Co. of Rockford v, Illinois Nat. Bank & Trust Co. of Rockford, 19 Ill.2d 385, 388 (1960); Hanley v. Hanley, 14 Ill.2d 566, 571-572 (1958); Paluszek v. Wohlrab, 1 Ill.2d 363, 366 (1953); Estate of Wilkening, 109 Ill.App.3d 934, 943 (1st Dist. 1982); Caudill v. Beil, 127 Ill.App.3d 847 852 (4th Dist. 1984).  If the resulting trust does not arise at the time title vests, it will not be deemed to arise or be created later on if the donor changes his mind.  Hanley, 14 Ill.2d at 571-572; Paluszek, 1 Ill.2d at 366; Hocking v. Hocking, 76 Ill.App.3d 29, 34 (5th Dist. 1979).

“A resulting trust arises when one party provides the consideration for a transfer of title, but the title to the property is transferred to a different party.”  Hocking, 76 Ill.App.3d at 34; see also Wilson’s Estate, 81 Ill.2d at 355; In re Estate of McCormick, 262 Ill.App.3d 163, 167 (2nd 1994).  A resulting trust may also arise when both parties contribute to the consideration, but title is taken in only one of them.  Caudill, 127 Ill.App.3d at 852 (“a trust results in favor of the other to such proportion of the property as is equal to the proportion of the consideration contributed by him.” (internal quotation marks and citations omitted)).  It is the intent of the provider of the consideration that controls.  McCormick, 262 Ill.App.3d at 168.  The consideration need not be cash, but can be a note or other assets.  Hocking, 76 Ill.App.3d at 35.  Evidence of the payment of the consideration by one not in title raises a prima facie rebuttable presumption of a resulting trust.  Wilson’s Estate, 81 Ill.2d at 356; McCormick, 262 Ill.App.3d at 168.

The party arguing for the existence of the resulting trust has the burden of proving the trust by clear and convincing evidence.  First Nat. Bank & Trust Co. of Rockford, 19 Ill.2d at 388; Wilson’s Estate, 81 Ill.2d at 356; Paluszek, 1 Ill.2d at 366; Judgment Services Corp. v. Sullivan, 321 Ill.App.3d 151, 155 (1st Dist. 2001); Hocking, 76 Ill.App.3d at 35; McCormick, 202 Ill.App.3d at 168.   If there is any other possible or reasonable explanation, then no resulting trust will be found.  First Nat. Bank & Trust Co. of Rockford, 19 Ill.2d at 388.