The Legal Considerations Of Setting Up A Trust

 

In terms of the law, a trust is a relationship where one party is able to hold property for the benefit of another party.  Trusts are set by a settlor who moves all or some of their assets to a board of trustees.  The trustee will hold the property for the benefit of the beneficiary.  Trusts have been around for many years and have contributed to estate and property law. For advice on whether a trust is right for you talk to one of the Auckland trust lawyers; most law firms have one.

 

What Is Included In A Trust?

A trust is a legally binding document and this is why it is very important to be clear on the intentions of this document.  There are a lot of cases that have gone to court where people dispute a trust deed after the death of the settlor.  These cases can be extremely expensive and it is something that you want to avoid and you can do this by being clear from the start. For this reason, it is essential that you consult one of the Auckland trust lawyers to make sure your is set-up correctly to avoid any possible challenges in court.

 

When you set up a trust, the subject matter will need to be clearly identified.  The specific property that is held under the trust will need to be stated in the document.  This property can be a real one, tangible, intangible or personal.  People will generally include cash, shares, businesses and real estate in the trust.

 

The beneficiaries will also need to be clearly identified in the document.  This will stop a lot of problems later one.  The law governing trusts will allow the settlor to include people who have not been born at the time of the forming of the trust.  This will include any future children or grandchildren they might have.

 

If you are setting up a trust for a specific purpose such as funding further education for your child or grandchild, this will also need to be stated.  The objective of the trust can also be to benefit a charity.  In these cases, it is important that the beneficiaries of the charity are not related in any manner to the relatives of the settlor or the trustees.

 

The Trust Administration

The property and assets held by the trust will fall under the legal ownership of the trustees.  There are times when people forget about this and continue to act as the legal owner.  However, any decisions made regarding these assets will need to be in the best interests of the beneficiaries and not the settlor.

 

It is possible for a trust to have more than one trustee and it is a good idea to have more than one particularly if one is a qualified professional such as an accountant or lawyer.  The trustees will have a fiduciary duty to the beneficiaries of the trust and may have some other roles they need to play.  This can include having a duty to inform and care for the beneficiaries.  The trustees will be under obligation to adhere to these duties, but it can be removed through legal action.

 

Trustees can be people or a company.  The trust itself is not legally recognized as a person and it cannot be sued.  However, any litigation against a trust will be filed against the trustees and this is why the names of the trustees will need to be clearly stated.  The right and responsibilities of the trustees will be bestowed by the trust instrument or the jurisdiction.  When there are no trustees for a trust, the court can appoint them.

 

The Responsibilities Of The Trustees

The primary job of a trustee is to administer affairs on behalf of the trust.  This will include the investigation of assets held in the trust, the accounting for and reporting to the beneficiaries at certain times.  The trustees will also be responsible for the filing of the tax returns for the trust and will need to perform other duties as required by the law.

 

This will include the maintaining of memoranda as well as meeting agendas and minutes from the Annual General Meeting.  They may also make decisions as to whether or not the beneficiaries should receive the assets or not, but this will depend on the set up of the trust.  Trustees can purchase liability insurance to protect themselves from any potential legal challenges.

 

For legal advice on a Trust, hire an Auckland trust lawyer. McVeagh Fleming is one of the larger law firms and they can help. You can get more details from their website www.mcveaghfleming.co.nz.