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Discretionary Trusts, including Family Trusts, Business Trusts & Property Trusts.
A trust is a legal entity with its own distinct identity. It may acquire and hold property, shares and other such assets in the interests, and for the benefit, of its beneficiaries, the people for whom the trust was created.
Trusts are administered in terms of the Trust Property Control Act, and formed and governed in terms of a written agreement between Trustees and the Founder (or Settlor), known as the ‘Trust Deed’.
A trust has its own contractual capacity and it may acquire and sell property, it may acquire shares in a company, or acquire and dispose of any other assets.
WHY SHOULD YOU SET UP A TRUST?
Protection of Assets
A trust entitles you, as a beneficiary, to the use and enjoyment of its assets without personally owning the assets. As the assets are separate from your personal estate, the trust may protect the trust assets from creditors’ claims against you personally subject to the condition that the trust has not signed surety on your behalf.
As a trust may survive your death, or that of the trustees and/or beneficiaries, the use of a trust provides succession of interests in property as it may continue to exist for an indefinite period.
Depending on the circumstances, the process of winding up a deceased estate may endure for a period of six months to more than a year. In the event that a trust owns the assets, the lengthy procedure is avoided as it simply allows for the transfer of the use and enjoyment of assets to surviving beneficiaries.
Furthermore, the trust assets will not be subject to transfer fees, estate duty, executor’s remuneration and other such expenses, as more fully explained below.
A trust therefore facilitates an efficient transfer of rights and expedites the redistribution of assets to beneficiaries at a fraction of the cost of deceased estate administration.
Benefits on Death
By acquiring assets in a trust, the value of your personal estate is reduced. This implies that any growth in the trust’s assets is excluded from your estate in the event of your death. This reduces your estate’s capital gains tax (CGT) and estate duty exposure, and eliminates executor’s fees in respect of such assets.
Please note: If your Will leaves your farm to your children in equal shares, there could be complications. In terms of the Subdivision of Agricultural Land Act, there are restrictions when it comes to splitting up agricultural land. Leaving the farm to a Trust solves this problem, as the profits of the operation could be paid out in equal shares.
The trustee administers funds in cases where the dependant cannot do so (for example as a result of a physical or mental handicap) and avoids challenges or problems that are commonly associated with the Guardian Fund.
CGT is levied on natural and juristic persons when an asset is alienated for value. In the event of death, CGT becomes applicable as you are deemed to have sold all your assets to your deceased estate. Further, on death a further tax imposed is Estate Duty which is currently levied at the rate of 20% of the value of any assets you have in excess of 2,5 million. However, this dilemma in both instances can be addressed by simply holding the assets in a trust, as it is structured to survive death.
An executor is a person that attends to the administration and winding up of a deceased estate, who is entitled to a fee of 3.5 % of the gross value of the estate plus 6% of its income.
Protection of Minors
If you pass away and a Testamentary Trust has not been provided for in your Will and your children are under the age of 18, their inheritance may be reduced to cash and the proceeds paid into the Guardian's Fund. These funds are not invested in growth investments and may at times be difficult for your heirs to access.
South African law does not allow persons under the age of 18 to inherit directly. This implies that your assets might not be distributed in accordance with your wishes, as it will be sold and the proceeds thereof will be held by the Guardians Fund until your young loved ones reach the age of majority. The solution to this problem is to have all your assets held by a trust, which will be managed by your appointed trustees in the interest of the minors.
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