Trust Registration Formalities

The trust in financial planning and the advantages of a trust

Custodianship of the assets
Custodianship of the assets of the trust prevent assets from being squandered or wastefully dissipated, for example, in those instances where the beneficiary is a minor or is insolvent or is incapacitated or is too irresponsible or inexperienced in money matters.
Governance (management and control of trust assets) is facilitated:
Where may owners with divergent expectations and requirements own the same asset the management of the assets becomes complicated if not impossible.
Protection of assets against creditors
A discretionary trust enjoys creditor protection in the event of the trust beneficiary's insolvency. The assets of the trust are held by the trustees and the creditors who are the beneficiaries cannot attack the assets if the beneficiaries have no vested rights to the assets.

Estate duty and related savings

Estate duty and related savings are achieved by divesting oneself of ownership of growth assets in favour of a trust. In so doing for as long as the trustees keep the trust going and retain the assets for the unvested and unspecified benefit of the planner’s descendants no estate duty need be paid on the death of the descendant.

Definition and Duties of Trustees
The trustee can be either a person or a legal entity such as a company. A trust may have one or multiple trustees. A trustee has many rights and responsibilities; these vary from trust to trust depending on the type of the trust. A trust generally will not fail solely for want of a trustee. A court may appoint a trustee, or in Ireland the trustee may be any administrator of a charity to which the trust is related. Trustees are usually appointed in the document (instrument) which creates the trust.
A trustee may be held personally liable for certain problems which arise with the trust. For example, if a trustee does not properly invest trust monies to expand the trust fund, he or she may be liable for the difference. There are two main types of trustees, professional and non-professional. Liability is different for the two types.

The trustees are the legal owners of the trust's property. The trustees administer the affairs attendant to the trust. The trust's affairs may include investing the assets of the trust, ensuring trust property is preserved and productive for the beneficiaries, accounting for and reporting periodically to the beneficiaries concerning all transactions associated with trust property, filing any required tax returns on behalf of the trust, and other duties. In some cases, the trustees must make decisions as to whether beneficiaries should receive trust assets for their benefit. The circumstances in which this discretionary authority is exercised by trustees is usually provided for under the terms of the trust instrument. The trustee's duty is to determine in the specific instance of a beneficiary request whether to provide any funds and in what manner.

By default, being a trustee is an unpaid job. In modern times trustees are often lawyers or other professionals who cannot afford to work for free. Therefore, often a trust document will state specifically that trustees are entitled to reasonable payment for their work.

Definition of a Trust

In common law legal systems, a trust is an arrangement whereby property (including real, tangible and intangible) is managed by one person (or persons, or organizations) for the benefit of another. A trust is created by a Donor, who entrusts some or all of his or her property to people of his choice (the trustees). The trustees hold legal title to the trust property (or trust corpus), but they are obliged to hold the property for the benefit of one or more individuals or organizations (the beneficiary, a.k.a. cestui que use or cestui que trust), usually specified by the Donor, who hold equitable title. The trustees owe a fiduciary duty to the beneficiaries, who are the "beneficial" owners of the trust property.
The trust is governed by the terms of the trust document, which is usually written and occasionally set out in deed form. It is also governed by local law. The trustee is obliged to administer the trust in accordance with both the terms of the trust document and the governing law.
Different Types of Trus
Testamentary trust (mortis causa)
Testamentary trusts are the most common trusts in use. They are especially suited to the protection of interest of minors and other dependants who are not able to look after their own affairs. These types of trusts come into being only after the death of the testator.
The trust is administered by trustees appointed in terms of the will, and is usually ended after a predetermined period or at a determined event like a minor turning 18 or the death of an income beneficiary.
Assets that form part of an estate may be moved to this trust, with or without limited rights such as usufruct. A testator appoints the trustees in a will.
The trust is formed by placing a trust clause in a will, which serves the same purpose as a trust deed. During the estate settlement period of the deceased estate, the appointed trustees apply for a letter of authorisation at the same office of the Master of the High Court as where the estate is registered.
A testamentary trust may further be both a discretionary or vested trust.
Discretionary trust
Payment of income and/or capital is subject to the discretion of the trustees and all non-allocated income is taxable in the hands of the trust. This type of trust may thus be utilised to save on income tax by splitting incomes. Capital beneficiaries may only be determined at a later stage.
Vested trust
The income and capital beneficiaries are already determined and described. The income is taxable in the hands of the income beneficiary, which could also be the capital beneficiary. The capital beneficiary thus gets immediate property rights, subject to the terms of the will or trust act.
Living trust (Inter Vivos)
Living trusts are ideal for keeping growth assets out of your estate and are thus a superb medium to limit estate duty and to protect assets from generation to generation. A living or inter vivos trust comes into being during the lifetime of the Donor or founder with the signing and registration of a trust.
A living trust is formed as an arrangement between the founder/Donor and the trustees. The founder/Donor is the person that takes the initiative to create a trust.
The interested parties in a living trust are the founder/Donor, the trustees, the persons or company appointed to take control over the assets and take responsibility for the administration and management thereof; and the beneficiaries or person who, in terms of the trust act, are entitled to the income and/or capital of the trust.
After signature of the trust deed, the trust is registered with the Master of the Supreme Court in whose jurisdiction most of the assets are situated or where the administration is to take place.