der folgende artikel von bryan hirsch, erschienen in der heutigen ausgabe von "businessday", zeigt in lockerer form die möglichkeiten auf, die die errichtung eines offshore trusts im hinblick auf die sicherung von vermögenswerten möglich macht

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Establishing a trust you can really trust

It’s a good feeling when you arrive at a stage in your life when your financial adviser or bank manager suggests that you establish a trust. It usually means that you have accumulated enough assets to warrant a special implement to protect those assets — assets that are above and beyond the ones that you expect to need in your private capacity.

The trust deed will be the regulating contract that enables the donor to task the trustees with responsibility for taking over control of the assets for the benefit of the beneficiaries. Success hangs on control. Trustees cannot allow the donor to continue to control the assets, because once one sets up one’s trust, the critical factor is that one has to let go as if the assets have already been donated to the nominated beneficiaries. If the settlor does not relinquish all control, then complicated legal problems may arise later, when events such as divorce occur. It is possible that if a trust is not managed correctly, the courts could rule that the assets have to be included in the estate. In that case estate duty will apply.

Successful attacks on trusts by creditors and others have happened when failure to hand over control has been proved.

Trustees have to be mature enough to understand what this relationship is about. They have to be able to differentiate between their personal assets and those of the trust, and when they consider making decisions on behalf of the trust, they must remember to keep all the other trustees fully informed, and obtain their approval for whatever action is contemplated.

Let’s look at the main duties of trustees.

First, it is to act with due care and diligence at a level that can be expected of a responsible person entrusted with valuables belonging to another person. One would consider what action a person who looks after someone’s affairs would have taken in similar circumstances, regardless of the actual relationship between the trustees and the settlor.

Second, the trustee must get acquainted with the detail contained within the trust deed and be satisfied with it. If they are not satisfied with the detail, then they should not accept the nomination to become trustees.

Third, trustees must take control of the assets. They must determine whether there are any risks implied that might threaten the assets. For example, is everything adequately insured, and is money properly invested ?

Has anyone really considered the financial needs of the beneficiaries, now, later and much later?

Fourth, they must think about taxes. Apart from the Income Tax Act, capital gains tax will apply to the trust in the appropriate circumstances. The trust’s assets will not attract estate duty.

The receiver may hold the trustee liable for these payments on behalf of the trust. Trustees are responsible for the submission of the relevant annual returns to the receiver. A clever thing for them to do is to familiarise themselves with all legislation that affects trusts. Better still, they can consult qualified professionals who can advise them along the way.

They should keep complete records of all meetings, discussions and decisions. You are not going to be effective if you try and argue without convincing records to support your cause.

Finally, it is their duty to attend to the distribution of trust capital to beneficiaries. They must first check what the liabilities actually are — before there is any distribution.

By now you will be asking who would want to be a trustee? Well, as long as the trust has been set up for all the right reasons, they will have nothing to worry about. Their role is an honourable one. They will deserve the trust that the beneficiaries have placed in them.

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5. juni 2006, -www.businessday.co.za

den ausführungen ist nichts hinzuzufügen

take care


ffbkdavid@business-podium.com
Creatrust Management AG Offshore Corporate Services