The concept of a Trust is over 900 years old and originates from English law. Over time the South African law on Trusts has been developed by legislature, the Courts and legal practitioners into the law have today.
A Trust can be described as a legal relationship which has been created by a person (known as the founder), by placing assets under control of another person (known as the trustee), during the founders lifetime (known as an Inter Vivos Trust) or on the founder’s death (known as a Testamentary Trust) for the benefit of third parties (the beneficiaries).
The Founder is the person who creates the trust and makes the initial funds available to the trust and is also known as the “Donor” or “Settlor”.
The Trustees are responsible for the administration of the trust property. They must act within the law and comply with the provisions of the Trust Deed.
The Beneficiaries are the persons who benefit from the trust, either now or in future. There cannot be a valid trust if there is not at least one beneficiary.
An Inter Vivos Trust is created by means of agreement (a contract) between the founder and the Trustees, during the lifetime of the founder. The agreement is called the trust instrument (the Trust Deed) and is signed in accordance with the Law of Contracts and registered with the Master of the High Court.
The Trust Deed is a legal document, requiring specialized legal expertise to draft.
A Testamentary Trust is created on the death of the testator in terms of specified provisions as set out in the testator’s Last Will and Testament.
Misperceptions about Trusts
These are some commonly perceived disadvantages of Trusts:
- Firstly many people are under the impression that one needs to be wealthy to set up a trust, nothing could be further from the truth, in fact the best time to set-up your Trusts is just before you start to acquire your large assets or when you set up your business or practice – protection from day one.
- A further common myth that pervades is that the Government is “looking” at trusts. Trusts were previously not defined in the Income Tax Act as tax payers, this clearly gave rise to serious abuse of trusts for tax purposes. The Government has since 1991 made various amendments to the act to combat these practices. Since 2002 there have been no more amendments, so we can safely assume that there is a degree of stability in that area. Furthermore, the manner in which we will advise that you use your trusts, and the way they hold assets and trade, are securely within in the ambit of all existing laws and specifically the Income Tax Act.
- Transfer duty: After the 2011 State Budget read by Minister of Finance (Feb 2011), the transfer duty of Trusts was leveled to that of Natural Persons!. This means that from 0-750k, there is no transfer duty, 750k to 1m = 3%, 1m-1.5m = 5% and above 1.5m = 8%. This is excellent news for people purchasing properties via Trust!
- The issue of Control: legally and technically, once a trust is formed, the assets that are held in trust are separated from the individual. The control of the assets is no longer in the hands of the individual. The reality however is that the individual, by being a trustee of the trust, will be privy to all decisions and retain negative “control”.
- Administration: a trust must be properly administered especially with Trust Accounting. The Trust Property Control Act requires that a simple set of annual financial statements be submitted. Please note that it is not mandatory that the financials be audited, as this will result in unnecessary further costs.
- The higher tax rate opinion: trusts are the most highly taxed entities or person in South Africa, they are taxed a flat rate of 40%. However there are mechanisms to minimize tax payable through the use of a trust. Paradoxically, by use of the “conduit principle”, tax efficiencies can be achieved through a Trust that cannot be achieved personally or through a Company. In short whether you have an income tax or capital gain, the taxation in the Trust can be minimized if not avoided.
Here are the facts…..
…. and compelling reasons why a Trust is the only legal vehicle affording holistic Asset Protection and Estate Planning for your assets, during and after your lifetime.
The concept and benefits of a trust
- A trust is a separate entity from an individual, totally distinct as one person from another, however not unlike a Close Corporation (CC) or Private Company (Company) but quite unique, in that it is not a creature of statute, but it is the product of a contractual arrangement. The Income Tax Act, Deeds Registry Act, Transfer Duty Act, Value Added Tax Act and the Insolvency Act afford a Trust legal personality.
- A CC or a Company are entities created by completing and registering certain statutory forms with the Registrar of Companies which then registers the CC or Company and it comes into being. In contrast, a Trust is created by contract in a legal document, commonly referred to as a Trust Deed. The following points are important to remember: a Trust, while not a legal persona is separate from you; a trust is not owned by any natural or juristic person; and a trust never dies or terminates, unless it is terminated by agreement or sequestrated if it is unable to pay its debts. The latter qualities make a Trust the only entity which will afford total asset protection and estate duty savings along with a myriad of other benefits.
- There are various types of trusts, namely;
- Testamentary Trust,
- Vesting or Bewind Trust,
- Special Trust and
- Discretionary Trust
Only Discretionary Trusts are used for our purposes, as the other forms of trusts are of no benefit in affording the necessary asset protection and estate duty savings and Capital tax saving benefits that Discretionary Trusts are able to offer.
Find out more about the Twin Trust Structure (TTS) as a way of structuring your entities for Asset Protection, Tax Efficiency and Succession. Read more …
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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