Types of Offshore Trusts
Trusts are a very useful legal instrument for many people who are emigrating. They serve a number of purposes, with different types of trust being used in a variety of circumstances. Trusts are particularly useful for inheritance planning; some trust types are best suited to inheritance tax mitigation, while others are best used for probate avoidance or other estate planning purposes. It is vital that you choose the right trust type in order to ensure that it is compliant with the law and that your wishes are carried out.
Unlike an express or implied trust, a constructive trust is not created by an agreement between a settlor and the trustee. A constructive trust is imposed by the law as an "equitable remedy". This generally occurs due to some wrongdoing, where the wrongdoer has acquired legal title to some property and cannot in good conscience be allowed to benefit from it. A constructive trust is, essentially, a legal fiction. For example, a court of equity recognising a plaintiff's request for the equitable remedy of a constructive trust may decide that a constructive trust has been "raised" and simply order the person holding the assets to the person who rightfully should have them. The constructive trustee is not necessarily the person who is guilty of the wrongdoing, and in practice, it is often a bank or similar organisation.
An express trust arises where a settlor deliberately and consciously decides to create a trust, over his or her assets, either now, or upon his or her later death. In these cases, this will be achieved by signing a trust instrument, which will either be a will or a trust deed. Almost all trusts dealt within the trust industry are of this type. They contrast with resulting and constructive trusts. The intention of the parties to create the trust must be shown clearly by their language or conduct. For an express trust to exist there must be a certainty to the objects of the trust and the trust property. In the USA Statute of Frauds provisions require express trusts to be evidenced in writing if the trust property is above a certain value, or is real estate.
Fixed trust: in a fixed trust, the entitlement of the beneficiaries is fixed by the settlor. The trustee has little or no discretion. Common examples are:
- A trust for a minor ("to x if she attains 21")
- A life interest ("to pay the income to x for her lifetime") and
- A remainder ("to pay the capital to y after the death of x")
A hybrid trust combines elements of both fixed and discretionary trusts. In a hybrid trust, the trustee must pay a certain amount of the trust property to each beneficiary fixed by the settlor. But the trustee has discretion as to how any remaining trust property, once these fixed amounts have been paid out, is to be paid to the beneficiaries.
an implied trust, as distinct from an express trust, is created where some of the legal requirements for an express trust are not met, but an intention on behalf of the parties to create a trust can be presumed to exist. A resulting trust may be deemed to be present where a trust instrument is not properly drafted and a portion of the equitable title has not been provided for. In such a case, the law may raise a resulting trust for the benefit of the grantor (the creator of the trust). In other words, the grantor may be deemed to be a beneficiary of the portion of the equitable title that was not properly provided for in the trust document.
a trust that uses distributions from income or principal as an incentive to encourage or discourage certain behaviours on the part of the beneficiary. The term "incentive trust" is sometimes used to distinguish trusts that provide fixed conditions for access to trust funds from discretionary trusts that leave such decisions up to the trustee.
In contrast to a revocable trust, an irrevocable trust is one in which the terms of the trust cannot be amended or revised until the terms or purposes of the trust have been completed. Although in rare cases, a court may change the terms of the trust due to unexpected changes in circumstances that make the trust uneconomical or unwieldy to administer, under normal circumstances an irrevocable trust cannot be changed by the trustee or the beneficiaries of the trust.
Private and public trusts:
A private trust has one or more particular individuals as its beneficiary. By contrast, a public trust (also called a charitable trust) has some charitable end as its beneficiary. In order to qualify as a charitable trust, the trust must have as its object certain purposes such as alleviating poverty, providing education, carrying out some religious purpose, etc. The permissible objects are generally set out in legislation, but objects not explicitly set out may also be an object of a charitable trust, by analogy. Charitable trusts are entitled to special treatment under the law of trusts and also the law of taxation.
Here the terminology is different between the UK and the USA: In the UK, a protective trust is a life interest which terminates on the happening of a specified event such as the bankruptcy of the beneficiary or any attempt by him to dispose of his interest. They have become comparatively rare.
Or, more accurately, non-charitable purpose trust (all charitable trusts are purpose trusts). Generally, the law does not permit non-charitable purpose trusts outside of certain anomalous exceptions which arose under the eighteenth-century common law. Certain jurisdictions (principally, offshore jurisdictions) have enacted legislation validating non-charitable purpose trusts generally.
Resulting trust: a resulting trust is a form of implied trust which occurs where (1) a trust fails, wholly or in part, as a result of which the settlor becomes entitled to the assets; or (2) a voluntary payment is made by A to B in circumstances which do not suggest gifting. B becomes the resulting trustee of A's payment.
A trust of this kind can be amended, altered or revoked by its settlor at any time, provided the settlor is not mentally incapacitated. Revocable trusts are becoming increasingly common in the United States as a substitute for a will to minimise administrative costs associated with probate and to provide centralised administration of a person's final affairs after death.
A post-mortem trust constituted externally from a will but imposing obligations as a trustee on one, or more, legatees of a will.
The trust is empty at creation during life and the will transfers the property into the trust at death. This is a statutory trust.
Testamentary trust or will trust:
A trust created in an individual's will is called a testamentary trust. Because a will can become effective only upon death, a testamentary trust is generally created at or following the date of the settlor's death.
Unit trust: a unit trust is a trust where the beneficiaries (called unit holders) each possess a certain share (called units) and can direct the trustee to pay money to them out of the trust property according to the number of units they possess. A unit trust is a vehicle for collective investment, rather than disposition, as the person who gives the property to the trustee is also the beneficiary.
Choosing an Offshore Jurisdiction and Offshore Trust Structure
There are many variables which need to be considered in order to choose the best offshore solution. Broadly speaking, there are two obvious variables: location and type of a trust. These variables are, however, more interconnected than one might first suppose. Each offshore trust' location has its own law which regulates both the type of business entities which may be formed within the jurisdiction and the specific structure and commitments of such entities.
In order to make the best choice, you must first clearly define the type of offshore business you conduct now, and may wish to conduct in the future, and your objectives for going offshore: different offshore structures work better for certain types of offshore trusts than others and the best structure and jurisdiction is contingent upon what you hope to achieve.
The eventual value of having an offshore trust will depend on the overall structure, and on the particular country or countries in which the owner resides. To optimise your results, it is generally preferable for the offshore trust to not be a controlled subsidiary of the main company; and it will normally be even better if the main settlor are not resident in the same country as the main company.
The offshore geographical location is also important. It may, in certain situations, be more important than the type of business entity you form. By forming an offshore trust entity you will also be forming a relationship with a place; sometimes you may be required to visit there to open a bank account, and to conduct meetings. It is therefore, important to consider whether it will be expensive to travel there, whether you would enjoy visiting or vacationing there, whether you will be able to communicate with the local community, whether there is sufficient infrastructure present to support your operation.
The Elements of a Typical Trust
The trust deed or settlement: this agreement may be drawn up in a wide variety of ways and still constitute a valid trust. Obviously, the trust deed should reflect the wishes and requirements of the settlor, but should contain at least the following five elements:
- A brief description of the settlor(s)
- A definition of who is to act as trustee and how the Trustee may retire or be replaced
- A definition of the powers given to the trustee and any restrictions on his power
- A description of the assets of the trust fund, how assets may be added to the trust fund and how the assets are to be managed
- A definition of whom is to benefit from the trust
The Settlor of a Trust
The settlor is the person or persons who give their assets to the trustee and thereby transfers the legal ownership of those assets to the trustee. It is this transfer of ownership that provides the trust with many of its legal benefits. The settlor will ensure that the trust deed defines or recommends to the trustees how the benefits of the Trust should be distributed. (Terminology note: in the USA settlors may also be referred to as grantors in certain contexts.)
The Trustee of an Offshore Trust
The trustee is the person or corporate entity into whose ownership the assets of the trust have been transferred. The trustee has a duty to ensure that the wishes of the settlor as stated in the trust deed (and perhaps subsequently expanded upon in a letter of wishes or by verbal instruction) are carried out and to administer the assets of the trust fund in the interests of all of the beneficiaries. As noted above, the trust deed should provide for the removal, replacement or resignation of a trustee.
The Beneficiary of a Trust
The beneficiary is the person, persons or other legal entities who will ultimately benefit under the trust deed. They may be specifically named by the settlor and their benefits specifically set out. Alternatively, a class of persons may be nominated (e.g. grandchildren) from which the trustee is to choose to who shall benefit and to what extent.
Normally the trustee is guided in this choice by guidelines given to him by the settlor (see letter of wishes). Obviously, a charity may be one beneficiary, or the sole beneficiary of a trust.
Almost any identifiable 'class' can be made a beneficiary of a trust, and almost any legal and possible condition can be placed on the distribution of the assets by the trustee. The settlor may be a beneficiary of the trust, but he should not be the only beneficiary, as this will normally invalidate the trust.
The beneficiaries of a trust have legally enforceable rights and can seek a legal judgement compelling the tustee to act in accordance with the terms of the trust deed.
The Trust Funds
The trust fund consists of the assets of the trust. Obviously when a trust is in the process of being established it may be reviewed by a variety of the settlor's advisors for legal and other reasons. The nature and location of the reviews will be related to the purpose of the trust. They will usually include at minimum a legal review in the jurisdiction of the governing law, to insure compliance with the relevant law, and some review to consider the tax ramifications of the tax for both the settlor and the beneficiaries.
While these reviews are necessary in many cases and certainly prudent, not all final details of the trust need be provided to allow the appropriate review. In particular, we recommend to our clients that they establish a trust with an initial nominal trust fund of US$ 100.00. This is certainly a sufficient amount to establish the trust. Once the trust has been reviewed to the satisfaction of the settlor and accepted by the trustee there should be no reason for third parties to see the trust deed again. At that point the settlor may avail himself of the clause permitting additions to the trust fund, and add whatever additional assets he desires to complete the trust fund. In fact, additional assets may typically be added to the trust fund at any time by the settlor, subject only to the approval of the trustee, which is very unlikely to be withheld.
The Name of the Trust
Although it is not legally necessary to name a trust, in practice the associated parties must refer it to in some way. Certainly in the likely event that the trust at some point requires a bank account, a securities account or the like, that account must have some name.
To answer this requirement, most trust deeds include a name for the trust. The initial reaction of many settlors is to name the trust after their family. Obviously this is acceptable, and perhaps even normal. Moreover, it may be somehow comforting to have the trust so named, especially in those cases of a settlor who is less familiar with the principles of equity and Common Law.
However, we strongly suggest that such names be avoided. If confidentiality is desirable, a name should be chosen which is unrelated to the identity of the settlor or the beneficiaries. This is especially true if the name of the trust is likely to become known in any way. For this reason, we suggest names such as the "Palm Trust", the "Island Settlement" or similar. Some clients even prefer an approach which is intentionally designed to divert intention from the settlor and beneficiaries. For example a Mr. Robert Jones establishing a new trust as the settlor might choose a name such as the "Jones Trust" or the "Jones Family Settlement".
The name of the trust is simply that of course - a name - and is in law unrelated to the settlor or beneficiaries. Any name may be chosen; it is simply for convenience of reference.