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Solicitors for a trust
We provide expert and experienced advice on all aspects of trusts law, setting up a trust, lifetime trusts or will trusts, the administration of trusts, tax issues for trusts and disputes over trusts.
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Common considerations with setting up a family trust include :
- Should the trust be a lifetime trust (life interest trust) only or intended as longer term?
- Should the trust be a discretionary trust?
Family trusts – key points
Some of the most important considerations if you are considering setting up a family trust include :
- What is the purpose of the trust? – trusts are commonly set up to preserve assets, ensure that assets are sensibly managed and historically, for minimising tax. All of these issues tend to be complex and especially tax. Trusts are also set up to make provisions for disabled family members to protect their long term interests.
- How long do you want or expect the trust to run for? – some trusts are set up as lifetime trusts, others can last for generations. Thinking through the advantages and disadvantages is essential.
- The importance of flexibility in the trust – in most modern day trust deeds there are very clear provisions as to what powers and discretion the trustees have. These typically address discretion to invest or otherwise and the power or otherwise to release funds in certain situations.
- Choosing the right trustees – perhaps the most important decision. It will be key to decide whether to have mix of people you completely trust and/or those with specific professional experience and skills. With any long term trust, consideration must be given to what happens if trustees become ill, die, are no longer competent or trustworthy and to ensure that the trust deed deals with these eventualities and how trustees might be removed or replaced.
Key clauses in a trust deed
Aside from the issues described above, especially regarding trustees powers and duties, it’s important to recognise the importance of avoiding disputes over trusts, which aren’t rare.
There is a balance to be struck. Trustees will often tend to be stringent about providing information and can be very defensive when approached by beneficiaries. There are often good reasons for this but a better approach can be to ensure that the trustees do provide information to beneficiaries.
Avoiding an expensive and often bitter dispute between beneficiaries and trustees is an important part of the considerations when drafting a trust deed.
If there are a range if beneficiaries, clauses in the trust deed can commonly deal with situations where certain behaviours or actions of a beneficiary impact ion his or her entitlement. It is far from unusual for family trusts to be created with this in mind. Irresponsible or criminal conduct can be examples which might be included as reasons for disqualification. Religious, marriage or lifestyle stipulations may also be considered important.
Can the terms of a trust be varied?
An application can be made, if necessary, by beneficiaries under the Variation of Trusts Act 1958. This is not a straightforward application and will often not happen except where there is clear consensus by beneficiaries so will be of no use if an individual beneficiary simply feels aggrieved about a legitimate and lawful decisions by the trustees to refuse something that beneficiary asks for.