To ascertain what type of trust will suit your needs, a detailed consultation process with a trust or fiduciary law specialist will indicate the precise need and appropriate form of trust. This can be one or more of the following:
- Testamentary Trust
- Discretionary (family) trust
- Vested trust (bewind trust)
- Charitable trust
- Umbrella trust
- Guardians trust
- Special trust (in compliance with section 1 of the Income Tax Act)
Testamentary trust (mortis causa)
Testamentary trusts are the most common trusts in use. They are especially suited to the protection of interest of minors and other dependants who are not able to look after their own affairs. These types of trusts come into being only after the death of the testator. AThe trust is administered by trustees appointed in terms of the will, and is usually ended after a predetermined period or at a determined event like a minor turning 21 or the death of an income beneficiary.
Assets that form part of an estate may be moved to this trust, with or without limited rights such as usufruct. A testator appoints the trustees in a will.
The trust is formed by placing a trust clause in a will, which serves the same purpose as a trust deed. During the estate settlement period of the deceased estate, the appointed trustees apply for a letter of authorisation at the same office of the Master of the High Court as where the estate is registered.
A testamentary trust may further be both a discretionary or vested trust:
Payment of income and/or capital is subject to the discretion of the trustees and all non-allocated income is taxable in the hands of the trust. This type of trust may thus be utilised to save on income tax by splitting incomes. Capital beneficiaries may only be determined at a later stage.
The income and capital beneficiaries are already determined and described. The income is taxable in the hands of the income beneficiary, which could also be the capital beneficiary. The capital beneficiary thus gets immediate property rights, subject to the terms of the will or trust act.
Living trust (inter vivos)
Living trusts are ideal for keeping growth assets out of your estate and are thus a superb medium to limit estate duty and to protect assets from generation to generation. A living or inter vivos trust comes into being during the lifetime of the settlor or founder with the signing and registration of a trust.
A living trust is formed as an arrangement between the founder/settlor and the trustees. The founder/settlor is the person that takes the initiative to create a trust.
The interested parties in a living trust are the founder/settlor, the trustees, the persons or company appointed to take control over the assets and take responsibility for the administration and management thereof; and the beneficiaries or person who, in terms of the trust act, are entitled to the income and/or capital of the trust.
After signature of the trust deed, the trust is registered with the Master of the Supreme Court in whose jurisdiction most of the assets are situated or where the administration is to take place.
A living trust can take several forms:
A trust that comes into being through an agreement between the founder and the trustees. Assets are sold to the trust and a loan account (debt) is created, or assets can be donated, but with donation tax implications.
A charitable trust is a particular kind of trust that may be classified as non-taxable in terms of the Income Tax Act. Capital loans are made to a trust. The trust is so structured that it pays no income tax. The trustees then make donations to charities, schools, churches, etc. on your behalf and according to your wishes. Because there is no income tax applicable, you may make large donations.
This is a trust linked to a pension, provident, retirement annuity or preservation fund as well as group schemes. The trustees of the fund/scheme obtain an additional option to, in specific cases, transfer the death benefits to the trust for management to the benefit of the beneficiaries.
These trusts are created as an alternative for monies due to minors that must, under certain circumstances, be paid into the Guardians’ Fund of the Master of the Supreme Court. Examples of such monies are yields from policies and cash inheritances for which no provision had been made with trusts. This trust is authorised to receive, and to manage to their advantage, any benefits accruing to minors from the Guardian’s Fund – from death claims to life and endowment policies. It is a safe alternative for the Guardian’s Fund to pay benefits into the trust rather than to the remaining guardian, who will not necessarily act in the best interest of the child.
These types of trusts, which are taxed at the same rate as a natural person, may only be created to benefit a person suffering from serious mental illness as described in the Mental Illness Act, Nr 18 of 1973, or that suffers from serious physical deformity. Testamentary trusts benefiting any living family member, of whom the youngest turns 21 in a tax year, may in certain cases also be classified as a special trust.