What is a Trust?
A trust is a fiduciary arrangement which authorises a trustee to hold assets on behalf of a beneficiary (or beneficiaries). The beneficiary shall have an equitable interest in the trust assets. The trustee has the responsibility to manage the trust assets for the beneficiary’s benefits. For example, a trustee is allowed to invest in real estate with the trust fund and a trustee is required to pay the relevant taxes and duties.
The Singapore trust law is derived from the English trust law and principles. All trust matters are governed by the Trustees Act (Cap 337). The Monetary Authority of Singapore issues licenses and regulates the Trust companies according to the Trust Companies Act (Cap 336).
What are the main purposes of a Trust?
There are 9 purposes for creating a trust:
1. Financial management
If the beneficiaries who inherited the trust assets are young children, a reliable trustee may be appointed to properly preserve and manage the trust assets for the young children’s benefit.
2. Estate preservation and management
Most often than not, a trustee(s) is appointed by a deceased under the will. Under the will, a trustee is authorised to transfer and divide the deceased’s estate to the beneficiary (or beneficiaries).
3. Retirement planning
Pension plans can be considered as trusts where an employer is the settlor and the employees and the employee’s dependents are the beneficiaries of the pension plans.
4. Benefits of the Employee
Some companies held trust assets for the benefit of its employees and the employees’ dependents.
5. Protection of asset
Trust assets are not claimable by the creditors in the event where the settlor (i.e. person who creates the trust) is bankrupt.
6. Investment
A trust can be used for investment purposes, such as unit trust and mutual fund.
7. Corporate usage
Trusts can be used to secure a party’s interest in the tangible or intangible assets, for example, real estate as tangible assets or stocks as intangible assets.
8. Charities
A trust is a common tool used by many charitable organisations to make sure the trust assets are being utilised in the proper manner.
9. Tax savings
A trust may help a trustee to reduce his or her tax liability.
What are the main benefits of a Trust?
The main benefits of a trust are wealth control and preservation of assets. For wealth control, a settlor can specify the terms and conditions of the trust, deciding when and to whom the trust assets will be distributed to. This is especially important for a settlor who appoints a trustee under his or her will to manage and/or distribute their estate for the benefit of the beneficiary (or beneficiaries).
Whereas for assets preservation, a trust provides for better protection of one’s assets from creditors or lawsuits. As mentioned above, trust assets are not claimable by the creditors in the event where the settlor (i.e. person who creates the trust) is bankrupt.
What type of Trusts exist?
1. Testamentary Trust
A testamentary trust is made using a will. It becomes effective after the settlor has passed away. This type of trust is useful when a settlor has young children, dependant with special needs, beneficiary (or beneficiaries) who are unable to manage huge assets etc. Such a trust is irrevocable.
2. Private Family Trust
This type of trust is useful when the settlor intends to protect his wealth for the benefit of his family members. It can be made by way of a will, deed or declaration. It protects the trust assets from the creditors (bankruptcy), exchange controls, hostile governmental authorities and probate proceedings.
3. Revocable trust
A trust which can be cancelled, terminated or changed by the settlor. A settlor intends to have control of his assets placed in a trust. However, assets under this type of trust are subject to estate duty and the assets are not protected from the creditors if the settlor becomes bankrupt.
4. Irrevocable trust
Once the settlor placed their assets in the irrevocable trust, they cannot reclaim the assets back. The assets no longer belong to the settlor’s estate upon the settlor’s death. The assets under this type of trust are protected from the creditors provided that the irrevocable trust has been made for more than 5 years prior to bankruptcy.
5. Collective investment trust
This is solely for investment purposes. It includes unit trusts, business trusts and real estate investment trusts. However, this type of trust can be risky and costly as high fees and charges are often involved.
6. Charitable Trust
A charitable trust is not required to comply with the rules of creating a trust i.e. certainty of object and perpetuity. It has tax relief and exemptions. There are no beneficiaries to be specified under this type of trust.
7. Discretionary trust
A discretionary trust empowers the trustee with complete discretion to decide on the distribution of the assets i.e. to whom the assets are distributed to, the portion of the assets to be distributed, and when to distribute the assets. This type of trust protects the assets from creditors if the settlor becomes bankrupt.
8. Asset protection trust
This type of trust protects the settlor’s assets from their investment or business losses. The assets placed into the asset protection trust are not considered as part of the settlor’s estate. Thus, it protects the assets from creditors if the settlor becomes bankrupt. The assets placed in this type of trust will be distributed upon the settlor’s death.
Creating a Trust
Trusts can be created by a trust instrument, for instance, a contract, a will or a deed. There are several conditions in creating a trust:
Certainty of intention
The settlor has the intention to create a trust.
Certainty of subject matter
Trusts to be created shall concern the specific assets.
Certainty of object
A trust is normally created for the benefit of legal persons unless it is a purpose trust where there is no beneficiary.
Constitution
A trust is created once the trust assets are transferred to the trustee(s). Transfer of the trust assets is not required if there is a declaration of trust where the settlor declares himself as a trustee who manages the trust assets for the beneficiary.
Formalities
Compliance with the laws governing the creation of a trust.
Capacity
The settlor has the capacity, legally and mentally, to create a trust.
For more information or advice on creating a trust please feel free to contact us for a no-obligation discussion.
