A question clients sometimes ask is whether they should wind up and terminate their Trust. New Zealand has one of the highest numbers of Trusts per capita in the world and many family homes are held by a Trust.
However, in order to ensure the benefits of a Trust are realised the formalities of the Trust must be respected. Importantly, all Trustees need to approve all decisions being made in relation to the Trust. We quite often find clients are frustrated when they want to quickly borrow some money in the name of the Trust, and are told that they need their Trustee to approve the documents and a Trustee Resolution needs to be prepared. Clients often ask our advice on whether they really need their Trusts.
There are several important reasons why it may remain important to keep your Trust.
Any individual who is exposed to an element of risk in their personal lives – for example, company directors, doctors, school principals, school boards of trustees, builders, property developers – should strongly consider retaining their family Trust. If any claims are made against you personally, if your family home is held by a Trust then, provided your Trust has been set up correctly and administered property, your Trust will provide protection to your family home from these claims.
A properly set up and administered Trust can provide protection to assets held in the Trust on the breakdown of a relationship. While this might not be a consideration to parents who have set up a Trust and continue to be in a happy relationship, parents should strongly consider retaining their Trust structures in order to provide some protection for their children’s future inheritance from the breakdown of any relationships.
One of the key benefits to retaining your Trust is that you can have control over when your children receive their inheritance. Any assets held by the Trust will not necessarily be distributed to your children on your death, but instead the Trustees can decide when it is appropriate to provide this to them. This can be in different sums over a period of time, rather than one-off payments. This allows flexibility to ensure that your children do not receive any inheritance at a time when it may not be appropriate for them to – for example, if they are young, bankrupt, will have tax consequences, or are in a relationship that is at risk of ending.
There can be tax advantages in keeping your Trust, and/or there may be tax consequences to you if you terminate your Trust, and so before considering terminating your Trust we strongly recommend that you speak to your accountant or tax advisor to understand the consequences of this.
For some clients, the above considerations may not be relevant and so it might be entirely appropriate to terminate the Trust. However, most of the time we find that when clients ask the question “Do I really need my Trust?” and consider the above benefits to the Trust, they typically keep their Trusts in place due to the important protection it continues to provide.
If you would like further information or advice on this topic, feel free to contact our Auckland based Trusts and Estates lawyer Bethan Boscher by email firstname.lastname@example.org or call on (09) 9155458.
Disclaimer – this article prepared by Bethan Boscher (a Senior Solicitor of Morrison Kent, Auckland) is intended to provide a general overview of the area of law only. It is not exhaustive, does not purport to cover all details and should therefore not be relied upon exclusively or be construed as personal advice.