An introduction to 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 Settlor, 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 Settlor, 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 in deed form. It is
also governed by local law. The trust
law developed in England at the time of
the Crusades, during the 12th and 13th
centuries. The crusading nobleman
trusted one of his friends to manage his
estates for the benefit of the
crusader?s family. Thus the crusader was
the first trust settler, his friend was
the first trustee and the family were
the first beneficiaries. Though it has
many variations of form and exists in
many jurisdictions, trust law is
universally considered to be
well-settled?stable and predictable.
Were this the only consideration, an
offshore trust could be created in any
one of dozens of offshore
jurisdictions..
Purpose and creation of Trust
In forming the trust the main parties
involved are:
Settlor
In law a Settlor is a person who settles
properties or assets on express trust
for the benefit of beneficiaries. The
property or assets can be in form of
funds, shares, cars, boats, real estate,
(movable or immovable property) and even
non entities such as patents or rights.
Trustee
Trustee is a legal term that refers to a
holder of property on behalf of a
beneficiary. In all cases, the trustee
may be a person or company, whether or
not they are a prospective beneficiary.
The trustee must be independent from the
Settlor and has all rights and full
control over the actual running of the
trust. The trustees administer all of
the affairs attendant to the trust. This
includes investing the assets of the
trust, insuring 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 many
other administrative duties. However it
is possible to draft a separate
agreement between the Settlor and
Trustee ensuring the Settlor retains
full control and can benefit from the
Trust itself.
Beneficiary
The beneficiaries are beneficial (or
equitable) owners of the trust property.
A beneficiary will normally be a natural
person, but it is possible to have a
company as the beneficiary of a trust,
and this often happens in commercial
structures, generally speaking, there
are no strictures as to who may be a
beneficiary of a trust.
The main purpose creating a Trust are:
Asset Protection
From an asset protection standpoint, it
is always sound financial planning to
separate oneself from ones assets.
Trusts have been used for years to
protect one's assets from future and
potential future claims on ones assets.
One common trust structure used for
asset protection is the discretionary
trust. The creation of a discretionary
trust, of which the Settlor may be the
protector and a beneficiary of the
trust, but not the trustee and not the
sole beneficiary. In such an arrangement
the Settlor may be in a position to
benefit from the trust assets, without
owning them, and therefore without them
being available to his creditors. Such a
trust will usually preserve anonymity
with a completely unconnected name (e.g.
"Cow Trust"). The above is a
considerable simplification of the scope
of asset protection.
Privacy
Trusts may be created purely for
privacy. The terms of a will are public
and the terms of a trust are not. In
some families this alone makes use of
trusts ideal.
Estate Planning
Trusts are frequently used for estate
planning and often appear in wills. One
particular way that trusts are used for
estate planning is in the case of forced
heirship, which is when the law of the
country dictates who gets what,
regardless of the wishes of the
deceased. While there are a number of
solutions to this problem, one of the
most popular, and the one that is the
use of a foreign trust structure in
jurisdiction to hold the assets
indefinitely without ever triggering
heirship rules since elements within a
trust structure can be created so that
they never die.
Unit Trusts
The trust has proved to be such a
flexible concept that it has proved
capable of working as an investment
vehicle: the unit trust. A unit trust is
a form of collective investment
constituted under a trust deed. Unit
trusts are open-ended investments;
therefore the underlying value of the
assets is always directly represented by
the total number of units issued
multiplied by the unit price less the
transaction or management fee charged
and any other associated costs.
Tax Planning and Avoidance
The tax consequences of doing anything
using a trust are usually different from
the tax consequences of achieving the
same effect by another route (if,
indeed, it would be possible to do so).
In many cases, except for US persons,
the tax consequences of using the trust
are better than the alternative, and
trusts are therefore frequently used for
legal tax avoidance.
Charities
In some common law jurisdictions all
charities must take the form of trusts.
In most jurisdictions, charities are
highly regulated. Some people are lured
into creating charitable trusts that
will not and substantially engage in
charitable work built for the purpose of
asset protection or tax avoidance. This
will not work and should be avoided.
However, legitimate charitable trusts
and charitable remainder trusts can be a
key element in successful tax reduction
structures.
Offshore Trust
Strictly speaking, an offshore trust is
a trust which is resident in any
jurisdiction other than that in which
the Settlor is resident. However, the
term is more commonly used to describe a
trust in one of the jurisdictions known
as offshore financial centers or,
colloquially, as tax havens. Offshore
trusts are usually conceptually similar
to onshore trusts in common law
countries, but usually with legislative
modifications to make the more
commercially attractive by abolishing or
modifying certain common law
restrictions. By extension, "onshore
trust" has come to mean any trust
resident in a high-tax jurisdiction.
Like a traditional trust in that it
comprises a relationship or arrangement
entered into by a person or group
designated to be the ?Trustee,? and a
distinct person or group of people
designated the ?Settlor,? by which
provisions are made in a binding,
written legal form known as the ?Trust
Deed,? in order to hold title to assets
and property, to manage said assets in
accordance with the trust deed, in order
to provide a series of benefits and
distributions to a person or group of
persons designated as the
?Beneficiaries?. The trustee and/or the
trust company charged with the
management of the trust are bound by a
fiduciary duty o uphold the agreement,
and they agree to the rules and
requirements set out by the trust deed.
The primary benefit of a trust is the
protection it offers. Assets are kept
out of reach of creditors and judgments.
The other benefit of creating offshore
trust is The Settlor can transfer any
assets he own and legally declare he
does not own them, assets that belong to
the trust cannot be seized, Settlor
secrecy and confidentiality guarantee
and most important trusts are free from
taxation.
In creating an offshore trust it is
critical to critical that your offshore
trust be located in a jurisdiction that
favors foreign beneficiaries and in a
country that is strong politically.
Setting up your offshore trust must be
carefully performed and engagement
should only be conducted with a
qualified service provider. There are
many provisions that need to be included
in the trust in order for the asset
protection provisions to stand strong
under legal scrutiny. Selecting the
proper jurisdiction is critical because
not all jurisdictions offer strong asset
protection benefits. Offshore Labuan
can assist with your offshore trust
establishment and aid in your asset
protection, we establish trusts, bank
accounts and companies for a worldwide
audience.
Recommended Offshore Trust
Jurisdiction
As mentioned above selecting the proper
jurisdiction are critical in forming an
offshore trust therefore we recommended
Labuan as one of that jurisdiction, not
only its provide strong asset protection
benefits but its also backed up by
strong government policy and well
qualified trust service provider.
Nevertheless we also can assist you
establishing an offshore trust upon your
request and your selected offshore
jurisdiction.