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Trusts- more than a clever mechanism for money laundering

The use of UK-based trusts can help control the direction of assets and continues to offer financial security, reduced tax liabilities and peace of mind for the future, writes Jane Whitfield, solicitor for Barrett & Co.

The root of much of the misunderstanding of trusts seems to stem from the fact that the trust structure has no equivalent in many European jurisdictions. As a result, they do not recognise trusts or fully understand how they work.

The general view of trusts among policymakers in these countries (and also in the UK to some extent) is therefore that the trust is simply a clever mechanism for money laundering.

However, this view fails to recognise how powerful a trust can be for perfectly legitimate purposes, and also fails to acknowledge the depths of the trust’s roots in centuries of English legal history. For almost 1,000 years, families have been using trusts to preserve and manage their wealth for the benefit of their heirs.

Some of the main benefits a trust can provide include:

• Safety net – asset protection from life events such as bankruptcy or divorce

• Safeguarding the family – protection for a family member who lacks mental capacity

• Spendthrift beneficiaries – asset protection from those beneficiaries who may wish to spend, spend, spend

• University and education – provision of education fees for children or grandchildren

• Residential care – provision of care home fees for elderly parents or grandparents

• Tax and succession planning – reduced inheritance tax (IHT) payable on death

The increase in multiple marriages
and relationships is adding layers of complexities to the family landscape, with many families now embracing step-parents and step-children as well as half-brothers and half-sisters.

Combine this with our ageing population and the resultant growth in care responsibilities, and we end up with strains on both family finances and family interactions.

Creating a trust is an effective way
of sheltering family wealth, particularly for parents and grandparents who are concerned to ensure that the savings and investments they have worked so hard
to achieve will definitely benefit their descendants.

But for all settlors (where they are also trustees) the trust remains a unique vehicle to enable them to retain control of what happens to the trust assets and when. Effectively, settlors can give away their property but with strings attached.

Another advantage of establishing a trust is that the settlor can dictate who benefits from the trust and when, ensuring assets pass to the ‘right’ people at the ‘right’ time. By contrast, under English and Welsh law, if you leave a gift in your will
to your children, the default age at which they will benefit is 18 – unless you state a later age expressly in the will. Even then, if you do state a later age in the will, there could be adverse IHT consequences if the stated age is later than 25. Generally, no such constraints exist with a trust.

The signposts advisers should be looking for when considering when to suggest
a trust as a possible solution include the following:

Control

Does the client wish to give assets away but say who will benefit and to what extent; whether the property may be sold or used for certain purposes and who will benefit from it in the future?

Protection

Does the client wish to give away some
of his or her wealth to benefit other members of the family, but is concerned that it will be dissipated? A trust can restrict the amount and type of benefit received from the trust assets. For example, a grandparent may want to help his grandson with university expenses, but does not want him to spend the money on a fast car.

Flexibility

A trust allows trustees to adapt to circumstances as they arise. If an individual makes an outright gift, they cannot change their mind and give it to someone else. Suppose someone has two adult children: one has highly-paid employment and the other is still studying. With a flexible trust, the income could be used to benefit the child with a low income. If, in later years, if the highly-paid child takes a career break to raise a family, whereas the other child
is earning a good salary, the trust income could then be used to help with the costs of raising grandchildren, for example.

First published in Zurich’s Advice Matters

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