What is a Trust and what are the Benefits?
Trusts are becoming a popular way to structure business and personal affairs. If you are considering using a trust in any way, you should be clear on the legal obligations and the relationships involved. Always make sure you obtain proper advice before setting up a trust. Most lawyers are proficient in this area, but it is still advisable to talk to a legal advisor specialising in this area.
What is a Trust?
A trust is a type of legal entity that can own and hold title to property held for the benefit of one or more persons. It is a legal relationship, which is created when a person (known as a settlor) places assets in the control of another person (trustee) and these assets are intended to benefit other people (beneficiaries) or they are for a specified purpose. The person who creates a trust is known as the trust creator, grantor or settlor.
- The person who administers the trust and holds its properties is called a trustee.
- The people who are intended to benefit from the trust are known as beneficiaries.
Even though the assets, which are transferred to the trust through the trustees, become the property of the trustees, the fact is they only hold those assets on trust for the benefit of others (the beneficiaries). The trustees are the temporary owners of the property and they have to deal with it as set out in the trust.
Definition of a Trust
The most commonly used definition of a trust is;
'A trust is an equitable obligation that binds a person called a trustee to deal with property over which he/she has control (called a trust property) for the benefit of other people (beneficiaries) and of whom he himself may be one and may also benefit anyone else who may enforce the obligation'.
It is not an accepted as a legal entity like a company so action can be brought against it for liabilities which have no limitation under law.
Not only a Tax Saving Device
A trust is a flexible structure, which has been used for hundreds of years for various purposes. Many find it better to run business and non-business activities through a trust, rather than a company. Many people see a trust as a tax dodge, or as something used by the wealthy to retain ownership of property so it is kept away from people they owe money to (creditors).
Most people's knowledge of trusts is vague. While a properly constructed trust provides advantage to beneficiaries and others involved in the structure, trusts continue to be a legal means of protecting assets belonging to the family. They also benefit members of the family. It is more than a tax saving device, although it is acknowledged that tax saving can be achieved through proper management and allocation of profits made by the trust.
Main Reasons for Forming a Trust
Some of the reasons for forming a trust include the following:
- Estate Planning.
Although there is no longer estate duty or wealth tax, it is still sensible to arrange proper estate planning using a trust. - Protection from Creditors.
By having assets (that you or your business owns) safely secured in a trust, any potential loss of those assets to creditors (if the business runs into trouble) is averted. A trust is used to protect assets against claims resulting from business debts or other liabilities. This protection or exposure to potential liabilities is a big advantage with trusts. - Tax Savings.
If the trust is properly administered, then the correct allocation of income belonging to the trust, beneficiaries and others will result in taxation savings. This tax advantage is another reason why trusts are used. - Claims by Family Members etc.
If you transfer your assets into a family trust while you are alive then those assets will not be subject to any claims after your death from family members or others that you don't wish to benefit with your assets. - Matrimonial or Relationship Property.
You can use a trust to prevent your assets being classified as relationship property (used to be called matrimonial). This means your spouse would be prevented from claiming a share of your assets if it became necessary to divide this relationship property up. It can also be used to secure assets from other relationships such as defacto or similar. It can help you prevent your assets going to parties that you do not want to benefit. - Asset Testing in Retirement.
Another important advantage of a trust is when your assets are asset tested for various benefits and subsidies. If the assets are held in your name they will not be exempt from inclusion in the assessment for rest home subsidies etc. If they are held by the trust they are excluded - because they do not belong to you personally. The trust has to be set up correctly, of course, because it can be challenged if its sole purpose is to deprive you of income and assets, simply to allow you to qualify for a subsidy or other benefit.
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