Trusts

A trust is a legal concept under which legal title to assets originally belonging to a person (known as the settlor) are transferred to another person, persons or corporation (known as the trustee) for the benefit of a third party (known as the beneficiary).

Trusts are recognised in most common law jurisdictions such as England and Wales and the Channel Islands.

People create trusts for a variety of reasons including to safeguard assets for loved ones, a part of their general tax planning or to achieve certain objectives or purposes.

A trustee is the person or corporation tasked with administering the trust for the benefit of the beneficiaries.

A trustee therefore has certain powers and duties (often set out in the trust deed and legislation) and must generally strike a fair balance between the beneficiaries whilst also ensuring that they preserve and maximise the value of the trust.

Although trustees will usually hold the legal title to assets, they do so on behalf of the beneficiaries.

Trustees can usually bring and defend legal proceedings on behalf of the trust.

A beneficiary is a person who is entitled to benefit under a trust. They can call on the trustees to take certain steps and to account for their dealings with the trust and its assets.

Where trustees are not acting in accordance with their duties they can be held to account and sued by the beneficiaries.

A settlor is the person who creates the trust and whose assets generally comprise the trust, at least on its inception.

Protectors are usually seen in offshore and higher value discretionary trusts and are people who are tasked with overseeing the trustees’ administration of the trust and exercise of discretion. They are usually appointed by the settlor.

Protectors may sometimes have the power to add and remove trustees.

There are many different reasons for using trusts. They include:

• co-ownership of a house;
• creation of lifetime gifts for young people;
• tax planning; and
• making special provision for mentally incapacitated adults and in many other differing situations.

A bare trust describes a situation in which a trustee holds in their name an asset over which another party (the beneficiary) has a right to call upon both the income from it and the capital asset itself, at any time.

An interest in possession trust can be useful for individuals or couples who wish to protect their estates for future generations. The purpose of such a trust is to appoint a person to enjoy the benefit of assets (such as income generated from investments or the right to live in a property) during their lifetime, perhaps to provide continued financial support to a surviving spouse or children, whilst also protecting the capital value of those assets for chosen beneficiaries or future generations.

Whilst offering all the benefits of a standard will, a discretionary trust will also includes the appointment of trustees to manage assets held on trust on behalf of a number of beneficiaries. This is another method of safeguarding assets for future generations. It can assist in the slow release of assets in a situation where the estate is considerably large. If a beneficiary of your will has a disability, a discretionary trust may be useful as the arrangement can enable their needs to be met from the assets in your estate, without giving the disabled beneficiary an absolute entitlement.

A charitable trust is an organisation which can be set up by anyone who has decided that they want to contribute some of their assets or income for charitable causes. A charitable trust is a registered charity and can be established as a company or unincorporated association.