Asset Protection
As individuals we face a number of possible situations which can result in us losing all of our hard earned assets, cash, investments and properties.
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- Divorce
- Business creditor claims
- General creditor claims
- Other claims
- Retrenchment
- Sureties
The following are common scenarios which can result in substantial personal and corporate loss:
- A distressed business (new or established) will result in short-term obligations to creditors, for unpaid rental, supplier invoices, staff salaries, SARS taxes, bank loans, bank overdrafts and the like;
- Surety signed for any person or business will result in exposure to any claims for outstanding debt.
- Divorce is an emotional time, and very often irrational decisions are made which may result in assets being sold or liquidated unnecessarily.
- If married in community of property, you may face claims by creditors of your spouse.
- Generally your creditors may lay claim to your assets if you cannot pay your debts.
- Retrenchment for any variety of reasons, can leave you financially vulnerable, unable to meet your obligations, and place your assets at risk to creditors.
- Any individual may face a claim for damages, potentially resulting in the attachment of assets.
The above scenarios paint a bleak picture, but can be avoided and contained through the establishment of a Trust, or a combination of Trusts. The Trust is the only legal vehicle which can offer the individual total asset protection, achieved by virtue of the fact that a trust is not owned by the individual, and has a legal personality of it’s own quite distinct from the individual.
Once assets have been moved into a Trust, they no longer belong to an individual. There are certain laws that need to be borne in mind before the assets are secured. There is a window period prescribed in the Insolvency Act, which affords creditors protection from delinquent creditors. The Act prescribes that if a creditor has a claim against an individual who is solvent, and who has moved, sold, transferred or donated his assets, the creditor may within a 6 month period reverse such transactions and attach the assets.
Assets must be timeously transferred into a trust so that this time period elapses, and the transferred assets are not liable to attachment under the relevant sections of the Act.
The situation is even worse if the individual is insolvent at the time of the transfer of assets, as the window period is extended to 24 months before the assets are secured from a creditor attachment
Benefits on Death
Proper Estate planning is essential to ensure a seamless flow of the benefits of your estate to your heirs, and to minimize or eliminate the Duties and Taxes triggered by death. A Trust is the only vehicle that eliminates any of these triggered events, and a smooth transition of your life’s hard-won assets is achieved.
- No Capital Gains – Capital gains tax is a form of tax levied on natural and legal persons, it was introduced on the first of October 2001. The tax normally only comes into effect when an asset is sold that has appreciated in value, there are other instances where the tax will be deemed to have been triggered, one such event is your death, you are deemed to have sold all your assets to your deceased estate. Therefore all the assets that you own at the time of your death, including properties, will attract CGT at a rate of 10% (we will for simplicity sake ignore roll-overs and exemptions for now) this is further exacerbated by the fact that the tax is due in cash, even though no money has changed hands or been received, this could leave your estate in a illiquid position. This can be avoided by merely placing all the assets in trust. The trust does not die and therefore the CGT will not be triggered, saving the investor substantial amount of CGT (10% of the value of the growth of any assets in your estate at the time of your death).
- No estate duty – On the death of an individual the receiver of revenue lurks ever so near to get a further portion of the investor’s estate in the form of estate duties. Any person who dies or who owns property in this country will be subject to Estate duties, please note that this covers all your world-wide assets. This also affects any non-resident or foreign national who has property in this country. The scope of property and assets is very widely defined and covers numerous classes of property and assets and all forms of rights to property, policies, annuities, investments and business. The tax is levied at a rate of 20 % of the net value of any assets you have in excess of 3.5 million, after certain deductions have been made. This is a massive amount of money to have to part with as a result of your death; the real sting in the tail is that this is a tax on after-tax money and assets, and in certain cases, intangible assets such as goodwill, which might be worthless after your death but yet attract Estate Duties.It is crucial to establish the correct structure in order to ensure that you pay a minimal amount (if not Zero) of death duty. An average estate will pay approx 30% of any net value of such estate. It is important to note that certain assets which are not directly owned by an individual could be deemed to be their assets i.e. Usufruct rights, any interests in property, assurance policies. The latter along with all assets, business properties, movable assets, investments, cash unit trusts, shares, time share are valued and will form part of the estate of the individual, and after certain deductions of debts and exemptions, the net estate in excess of 3.5 million is taxed at 20%.The solution to this frightening proposition is simple, by establishing the Family Trust and ensuring that all the assets are held by trust, the trust never dies, our law allows for the Trust to continue in perpetuity. On the death of the individual they should pay zero Estate duty.
- No executors fees – The investors death is again a hunting ground for further costs, not only is the estate subjected to CGT, and estate duties but also to executor’s fees. An executor is the person or company or firm that winds up the estate of the individual, for this task they are entitled to a maximum fee of 3.5 % of the gross value of the estate plus VAT in certain circumstances (please note the GROSS value of the estate before deducting liabilities etc). This is one of the most under-stated costs, and the impact is not adequately explained to people. Ordinarily an individual’s gross estate is quite substantial, and accordingly executor’s fees will be substantial. Again the solution to this is the formation of a trust, as the individual will not own any assets, and as all the assets are held by a trust or combination of trusts, the estate should have zero or inconsequential value, thereby eliminating the executor’s fees payable.
- Protection of minors – Our law does not allow for minors to directly inherit, therefore an individual who wants to leave all or any assets to minor persons will not be able to do so, or persons not adequately addressing the issue in their wills or via testamentary trusts will end up with a situation where all the assets will be liquidated into cash. This is the position as the funds or the cash needs to be held by the Guardians Fund. The fund can only hold cash as they do not have the ability or resources to administer assets, this great fund is controlled by the Government, and pays interest of +- 2%. In the event monies are not claimed, they are forfeited to the state, a wonderful thought!In the interim the minors will have limited or no access to the fund for their needs, education, health, well being housing. Your dream of passing the fruits of your hard earned work in establishing your legacy to heirs is impossible as the Guardians Fund can only hold cash, and all your efforts will come to zero. The solution is to have all your assets and your properties in a trust, as the trust survives your death; any beneficiary may benefit and access assets immediately. Also bear in mind that property administered by your appointed Trustees will accrue at a much better rate than the interest earned in the Guardians Fund.Saving of costs on death, in establishing a trust a host of costs can be saved as the entity continues in perpetuity.
- Donations tax: This is another one of SARS anti avoidance mechanisms; you are not even allowed to give your assets away, other than to your spouse, and certain tax exempt institutions. You are limited to donations of R 100k per annum, this places you in an invidious position, if you wish to give assets or cash to children or parents or family or dependents, if you do you will face a taxation of 20% on any amount over 100k, this can be resolved by making these persons beneficiaries of your trust, a trust is exempt from donations made in pursuance of the trust.
Important: There is no necessity for a trust to terminate, a trust does not die and can therefore continue in perpetuity. This allows for the continuation of the assets which allows for future generations to benefit from your labour, no costs, no transfer, no cancellation of bonds, there is no Estate Duty, CGT or executors fees.
On the death of any individual, their estate is frozen, this is necessary in order for the Executor to wind up the estate, i.e. collect assets, pay debts, taxes, and only after that to make over bequests then distribute benefits to the beneficiaries and Heirs. All the while Spouse and dependants of the deceased have no access to any monies or assets; complex estates could take numerous years between 2-5 years to wind up
As a Trust holds the assets and cash, they are immediately accessible versus the situation where an individual dies and takes it 2-5 years to wind up, causing unnecessary and untold hardship to the spouse and dependents.
Should you need a Trust Formed – Click Here to Place an order! – or simply Call Mumbi Legacy at 011 392 2550.  Click Button below to claim R2,000 voucher for Trust Registration
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