What Is A Trust, And Why Should You Create One?

A Trust is like giving your money to “mum” to look after until the summer holidays and is not just something used by the old and grey.

Trusts are like the piggy bank on top of the kitchen cupboard, just out of reach until “mum” says it’s ok to spend some and gets it for you….

So, what is a Trust in legal terms?

A trust is a legal concept which enables assets (cash, investments, property) to be held for the benefit of others (in the piggy bank). Control of the assets transferred, is held by the trustees, usually 2 or more. The trustees own the assets and they can be friends, family, or a company. The trustees (“mum”) administer the trust for the beneficiaries.

The trust is created by a person(s) who is called the settlor. The settlor owns the asset (pocket money) that is transferred to the Trust (piggy bank) and on transfer, ceases to own it, or have any control over it.

The Trust is created for other people or beneficiaries. For example, you put money in the piggy bank to save for birthday and Christmas presents, or parents can save safely for their children’s education and university.

It is possible to be a “mum” as in trustee and, also, be a beneficiary.

The settlor, who put the money in the piggy bank, can also be a beneficiary and a trustee looking after the money.

The purpose of the Trust will determine whether it is effective for one person to have more than one role, i.e. a trust for Uni fees will have parents or grandparents as a settlor and trustees, but also potentially the beneficiary, if they are going to pay the fees.

The distinctive feature of a Trust is the separation of legal ownership and beneficial ownership of the money in the Trust fund.

The trustees are the legal owners of the money, but the trustees must always put the interests of the beneficiaries above their own. So, if you set up a Trust (you are the settlor) you no longer own the money, the trustees do.

Why would I want to set up a Trust?

Trusts are used as a means for individuals (and families) to control how their assets & money are held and transferred to others. Control is a major aspect of Trust planning, and they are used to protect assets in the long term.

Trusts allow you to put measures in place to protect your assets from risk. Some of the risks that may be mitigated for are:

• Bankruptcy
• Loss of heirlooms/”family money” through divorce or re-marriage
• Incapacity arising through a health event;
• Being too young or inexperienced to deal with property
• Certain taxation outcomes

One of the main drivers to use a Trust could be financial and tax based. However, for many families that may be only part of the reason, with other motivations, some listed above, being the main reasons for the use of a trust.

How is a Trust started?

Some Trusts are started automatically by operation of the law without any written document.

For example, when someone dies without writing a will (intestate) and funds need to be held for a minor child.

However, for most legal systems a Trust is created by the signing of a Trust deed, which outlines the settlor’s clear intention to create the Trust.

The Trust document will also set out who the trustees are, what assets, money and investments are being transferred. The beneficiaries will be named individually, or as a group (such as ‘children of x’), and the powers given to the trustees for administering the Trust.

In some Trusts, a person may be excluded from being a beneficiary, for example if the objective is to mitigate for Inheritance Tax, then the settlor will be excluded. This is because the Tax Man will say you haven’t actually given the money away, which is necessary to be effective for Inheritance Tax.

How long do Trusts last?

The maximum time you can have a trust in England is 125 years, which should be long enough for most people. Of course, the trustees may decide that the Trust assets should be given to the beneficiaries before that time.

Trusts and Tax

Trusts are occasionally represented as just devices to avoid tax. In reality, there are virtually no circumstances in which anyone would be well advised to set up a Trust purely to gain tax advantages.

Having said that, Trusts can have a key role in helping families negotiate the complexities and costs of inheritance tax. Trusts are used in this capacity to ensure that family wealth is passed down generations, before the Tax Man takes his hefty cut.