A Trust creates a separate legal Entity that is allowed to own assets and through the trustees, transact in its own name. An individual is therefore protected in their own name, as well as protected in their capacity as trustee.
A Trust is an entity that has the capacity to outlive the founder. In the event of an individual passing away, the trust will continue to operate as normal and will not incur any unnecessary taxes or forced sales of assets.
Benefits of a Family Trust
Setting up of a Trust:
An “Inter Vivos” trust is established during the lifetime of the Member (should it not be trustee). The process of registering a trust is fairly easy, but it is of utmost importance to consult with an experienced trust specialist to draft the trust deed. The trust deed is the contract that dictates the relationship between you as the founder and the trustees.
One of the primary advantages of a living trust is that it offers tax efficient management and control of assets after death. The growth in the estate is “pegged” and the value will increase in the trust. A trust creates a separate legal entity that owns the assets outside of the Member’s personal estate, and therefore do not form part of the calculation of Estate Duty.
Taxes and costs of up to 35% on death can be saved, including:
1.1 Estate Duty (20% of Estate) as the Trust will continue to persist after death.
1.2 Capital Gains Tax (13,65% CGT) on growth assets.
1.3 Executor Fees (at 3.99% of the Gross Estate).
This is a particularly unnecessary and avoidable tax. Executor fees are calculated on the gross value of an estate and deducted before any other expenses, therefore the executor can receive up to 30% of a net estate.
1.4 Transfer duties on immovable property (as property ownership does not transfer to anyone after death).
Bank accounts and cash reserves will not be frozen during the winding up of the estate, which can take up to 2 (two) years. A trust will ensure rapid access to capital and income after death.
Protection of Minors. In South African Law, a minor cannot be the registered owner of property, therefore the asset is liquidated and the proceeds invested in the Guardian Fund at 3% interest rate. Assets are also protected against spendthrift children, who will not be able to reduce the assets to zero.
Multi-ownership of assets. Some assets can not be divided for example business, farms or other property. By placing these types of assets in a trust, the heirs can be the beneficiaries of the income generated by the assets.
Confidentiality. Upon your death, your Will becomes a public document. A Trust does not form part of an estate and therefore the list of assets held in a trust remain confidential.
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