WHY YOU NEED A TRUST o Asset Protection o Estate & Succession Planning o Tax Management o Social Benefits o Confidentiality Asset Protection o Business Creditors o Liability Claims o Relationship Property Claims Business Creditors o Business Failure o Company – Limited liability o Directors – Personal Guarantees - Trading while Insolvent o Insolvency Act 2006 o Property Law Act 2007 Liability Claims o Clients o Employees o Public o Liability Insurance Relationship Property Claims o Property (Relationships) Act 1976 o Wide Reaching o Pre Marital Property o Children’s Inheritances o Section 44C Estate and Succession Planning o Wealth Protection o Certainty o Flexibility o Business Continuity o Tax Liabilities Tax Management o Taxation of Trusts o Income Splitting o Tax Avoidance o Beneficiary Allocations Taxation of Trusts o Beneficiary Income o Trustee Income o Losses Income Splitting o Sliding Tax Scale o Aligning Top Personal Tax Rate with Trust Rate o Minor Beneficiary Rule o Structures Tax Avoidance o Penny & Hooper o IRD Revenue Alert o IRD Compliance Focus o Appropriate Remuneration for Personal Skill and Effort o Commercial Reasons Beneficiary Allocations o Vests Absolutely Social Benefits o Working for Families Tax Credits o Student Allowances o Residential Care Subsidies Working for Families o Family Scheme Income o New Rules Student Allowances o Parental Income Test o New Rules Residential Care Subsidy o Excess Gifting o Abolition of Gift Duty Confidentiality o No Public Register o Assets held in Trustees names Summary o Imperative for asset protection o The sooner the better o Useful tools for future planning o Still some tax benefits o Limited use for social benefits HOW TO SET UP A TRUST & HOW A TRUST OPERATES Certainty of Intention Certainty of Subject Matter Certainty of Objects SETTLORS - MEMORANDUM OF WISHES Settlor (Single or Joint) Trustee(s) Beneficiaries TRANSFER OF ASSETS TO THE TRUST Settlement • Essentially a gift Transfer at Fair Market Value • Acknowledgement of Debt & Gifting THE RULES o Trust Period / Perpetuity Period 80 years / beneficiaries Coming of age 18-25 o Treatment of Income & Capital of the Trust Classes of Income & Capital Beneficiaries Distribution or Retention of Income & Capital Gains generated from Investments To what end should income or capital gains be used… THE RULES o Final Distribution of Trust Funds What Happens on the Vesting Date (final distribution date) Who will be the final beneficiaries Who decides who gets what (will the Trustees be given that responsibility or will it remain with the settlor(s) & be fixed upon their death) THE RULES o Management & Administration Powers Trustee Act 1956 Unanimous Decisions v Decisions by Majority o Resettlement and Amendment of Trust Deed Allowing for changes in personal circumstances or changes in law THE RULES o Appointment/Removal of Trustees What if the settlor(s) die? What rights should the final beneficiaries have? THE RULES o Power to Appoint or Add/Remove Beneficiaries Ability to appoint a beneficiary as a final (capital) beneficiary o General Clauses Conflict of Interest – Independent Trustee Indemnity – Trustee liability & Trust Assets Remuneration – Compensation for Professional Services TRUST OPERATION o IT’S IN THE HANDS OF THE TRUSTEES Advisors advise - TRUSTEES decide o Minimum Requirements for Active Management Annual Trustee Meetings Keeping of Trust Accounts A Trust Management Plan TRUST OPERATION o Best Practice Fundamentals Providing a secure & accessible place for key trust documents Maintaining a separate trust bank account Meeting at least annually Retaining all records that pertain to the making of a decision Maintaining a schedule of key beneficiary information DOB / Address / Living Situation / Educational Needs / Dependants TRUST OPERATION o Trustee Meetings & Resolutions Seek out Professional Advise in Advance Prepare an Agenda Meetings are Essential for the Review Of: Annual Accounts & Tax / Investment Strategy / Gifting Programme / Income & Capital Distributions or Advances Resolutions are essential for: Borrowing Money, Buying/Selling Property or Investments (meetings via email can be useful & provide an appropriate paper trail for decisions) Trustees and Beneficiaries NATURE OF A TRUST What it means to be a Trustee The status of a beneficiary in a Trust NATURE OF A TRUST A relationship established by a settlor but it is essentially between the trustees appointed to care and manage property and entrusted for them to hold and the beneficiaries for whom the property is ultimately held. Making a Will or settling a Trust Provide for your children and grandchildren Protect the equity /wealth accumulated over a lifetime Retain significant assets such as a business or farm Trust Advantages:Put in place now while you have a clear plan for your family Protect you and a surviving spouse in old age May help protect your children’s inheritance Give confidence that only your beneficiaries will inherit Trustees must act in the best interests of the beneficiaries The Nature of a Trust A relationship between the trustees appointed to care and manage property and entrusted for them to hold And the beneficiaries for whom the property is ultimately held. Who can be a Trustee A trusted friend – familiar with your financial circumstances & the family Your lawyer, accountant other professional adviser ( if they are prepared to do so) A trustee company operated by your professional advisers A separate trustee company specifically for your trust A trustee company such as Guardian Trust, Trustees Executors, Public Trust & Prudential Trustees need to be pro-active Familiar with the Trust Deed and who the beneficiaries are Ensure ownership of the Trust assets is under their care Contribute to and review all investments – act prudently Aware of family circumstances Trustees need to be pro-active For a trust that operates a business – be very aware Ensure that all trustees are unanimous and act in the best interests of the beneficiaries. Record decisions and be aware of the financial state of the Trust. What it means to be a beneficiary The Rights of a Beneficiary A controversial matter Fixed interest / Discretionary interest The rights of a beneficiary To always be considered in the deliberations of the trustees To be treated impartially (unless the deed permits otherwise). To be informed – to know they are beneficiaries Entitled to Financial statements Copies of the Trust deed and any variations, including the names of the trustees Details of distributions Balance Perspective The fiduciary obligation to inform must be balanced against the need to know. Matters of confidentiality The effect of knowledge on a beneficiary. GIFTING BACKGROUND Applied since 1885 Protection of Estate Duty base Expensive to Administer Minimal Revenue Antiquated System SITUATION NOW Repealed from 1 October 2011 Documentation still required Solvency Statement REASONS Matrimonial Creditor Protection Rest Home subsidy eligibility MATRIMONIAL Covered in later presentation Power of Section 44 Courts view CREDITOR PROTECTION Unscrupulous disposition of property Remedies for Creditors Legitimate dispositions Donor Trust Property Debt REST HOME SUBSIDYS Gifts within 5 years $6,000 per application Gifts beyond 5 years $27,000 per application Examples May 2004: Trust initially owed $500,000 (Deed of acknowledgement of debt) May 2004: Trust received gifts of $54,000 Balance of Debt $446,000 May 2005: Trust received gifts of $54,000 Balance of Debt $392,000 May 2006: No gifting that year May 2007: Trust received gifts of $54,000 Balance of Debt $338,000 May 2008: Trust received gifts of $54,000 Balance of Debt $284,000 May 2009: Trust received gifts of $54,000 Balance of Debt $230,000 May 2010: Trust received gifts of $54,000 Balance of Debt $176,000 May 2011: Trust received gifts of $54,000 Balance of Debt $122,000 May 2012: Trust received gifts of $122,000 Balance of Debt $0 Take a moment to stretch your legs