Introduction
Modernity is such that in 2024 some tools for coordinating and managing monetary assets will come to the fore. One of the main such financial instruments is the creation of a trust.
First, it is worth remembering its main function, namely the provision of custody of the property or assets of an individual or organization, managed by a trustee who is a neutral third party.
The goal of a trust agreement
Launching a trust in 2024 starts by meticulously outlining the objectives of the founder, which he elaborates in thorough detail via the trust agreement. The document is crucial for managing and relocating assets, ensuring they align with the initiator's intentions and allowing clear conditions for beneficiaries' access to them. The trust offers flexibility in managing assets and keeps them from various threats, encompassing juridical disputes and economic crises. In a general context, a trust treaty serves as a means to ensure the orderly transfer and subsequent management of assets to a designated third party under predefined conditions. Upon execution of such an agreement, the original owner of the assets forfeits their ownership rights, effectively placing the assets in a state of ownership limbo until either the fund is dissolved or the conditions specified in the trust treaty are met.
Roles of trust participants
Let's determine the key participants of the fund for a more comprehensive understanding of its structure.
- Founder: delegates assets for control and trust management, while also establishing explicit guidelines for their transfer to beneficiaries.
- Beneficiary: the recipient of the benefit under the trust agreement.
- Trustee: a person or legal entity authorized to manage the assets of the founder, solely tasked with operations geared towards maximizing profit. The trustee's duties are explicitly outlined in the trust agreement, with compensation typically structured as a percentage of revenue or another agreed-upon remuneration.
- Protector: optional participant in the fund. He oversees trustee's actions, granting or denying approval for specific operations, and ensuring the utmost security for the beneficiaries.
Goals and formation of the trust structure
A trust is a mechanism for consolidating diverse business entities, from which it derives income. Trust assets may encompass not only finances but also securities, real estate, or even artworks.
At the initial stage of creating a trust in 2024, special attention is paid to defining its objectives and structuring. The stage begins with the founder's analysis of the reasons for founding the trust, which may cover aspects such as estate management, succession planning, charitable endeavors or tax optimization. Determining these objectives is fundamental to opt the appropriate type and structure of the trust.
The originator is tasked with pivotal decisions concerning asset allocation, beneficiary identification, and the formulation of benefit terms. Establishing a trust further involves appointing administrators, encompassing a trustee responsible for asset management and trust adherence, and a protector tasked with safeguarding beneficiary interests and exercising oversight over trustee actions.
Trust categories
Trust funds can be divided into various types. Choosing the form of trust will allow you to predict the peculiarities of its work in the future.
Adhering to the provisions of the trust agreement, the following distinctions emerge:
- Revocable and irrevocable - hinges on whether the founder has the right to revoke the property, return it to his ownership and cancel the contract.
- Fixed and discretionary - in the first case, the beneficiaries and payments under the trust are fixed in the treaty, and in the second, the distribution of assets and the amount of payments is determined by the trust manager himself.
- Blind - when forming this type of trust, the beneficiaries do not know that they are beneficiaries and cannot in any way influence the management of the assets.
Based on the terms of registration, a trust can be:
- Private and public - the former involve family foundations, the latter, for example, charities.
- Regional and international - when establishing a regional trust, the trustee should also be regional. However, for an international trust, it may be located in a jurisdiction entirely separate from the location of all or part of the assets.
According to the conditions for the appointment of trusts, the next can be distinguished:
- Testamentary trust - intended to distribute assets among beneficiaries according to the wishes of the founder of the fund.
- Charitable trust - its purpose is to transfer the assets of the founder of the trust after his death to non-profit charitable organizations.
- A special needs trust, typically daily needs, procedures, or medical care for people with disabilities.
- Qualified terminable interest property trust - its purpose is to distribute assets to beneficiaries at different times. The trust agreement determines the priority of payments, with title passing to the next beneficiary upon the death of the previous beneficiary.
- Bypass trust - established to bypass taxes or significantly reduce the tax burden.
- A life insurance trust is an irrevocable trust created to maintain, invest, and distribute the proceeds obtained from a life insurance policy.
- Credit shelter trust – works by transferring assets to the surviving spouse. At the same time, property is not included in the tax base if it is transferred to other beneficiaries.
- Generation-skipping trust fund: created to transfer assets not to children, but to grandchildren.
Stages of creating a trust
To initiate a trust in the jurisdiction of your choice, you need to go through a certain sequence of steps. In most of the countries listed below, the procedures for registering a trust are of a similar general nature, but each specific jurisdiction may also have its own characteristics and regulations. Main important steps:
List of documentation for establishing a trust
- The articles of incorporation or agreement creating a trust, defining its purposes and terms.
- Personal documents of the founder and trustee.
- Documentation confirming the transfer of estate to the trust, comprising records about real estate, securities, and other assets.
- Documents on the appointment of a protector, if provided for by the constituent papers.
- Any other documents required to register the trust in accordance with the laws of the chosen jurisdiction.
- Roles and responsibilities of the founder, trustee, beneficiaries and protector.
Creation of a trust in Hong Kong
Legitimate structure and overseeing of trusts in Hong Kong
The creation of a trust in Hong Kong is controlled by a specific set of legitimate provisions and stipulations that distinguish this jurisdiction from others. Hong Kong's legitimate framework is grounded on British established law and has a properly-delineated set of trust laws. Besides, the activities of expert trustees are necessarily overseen in Hong Kong. Any of them who, as part of their business, offer qualified trust services in Hong Kong should be certified in conformance to the Trust and Company Service Provider Regime managed by the Registrar of Companies under AML/CFT Ordinance (Cap. 615).
Hong Kong has abolished conditions establishing the life of trusts, meaning that a founder can create a trust that lasts indefinitely. The transfer of movable property for life into a Hong Kong trust (subject to certain terms) is also permitted and protected from foreign forced heritage rules.
Trusts in Hong Kong offer tax benefits, including exemptions for specific trust profits, which can significantly aid in international tax management. However, it's important to note that these tax advantages are contingent upon specific circumstances and necessitate thorough analysis and compliance with prescribed conditions.
Examples of practical application of trusts in Hong Kong
Forming a trust in Hong Kong opens up broad prospects for founders to realize their peculiar needs and goals, thanks to the unique licit and tax regulations of this financial judicature. Hong Kong offers trust structures that can be customized to meet a variety of needs.
Trusts in Hong Kong are often chosen for asset strategizing purposes, allowing the administration and relocation of family wealth and business assets between generations. They allow founders to confirm that their assets are distributed according to their wishes, while minimizing their tax burden and preventing would-be disputes and creditor claims.
Asset safeguarding is another important function of trusts in Hong Kong, especially for business entities with international activities. Trusts present a reliable approach to protecting valuable assets from external risks, including legitimate and economic threats, while keeping key assets such as real estate and intellectual property safe.
To optimize tax obligations, trusts in Hong Kong are also used in tax planning. Taking into account the tax policy of this region, trusts offer favorable conditions for reducing the tax burden, especially relevant for international investors, allowing them to optimize the taxation of international income.
Effective application of a trust in Hong Kong requires an in-depth understanding of local licit and tax requirements, as well as expert advice to guarantee that the trust meets the initiator's objectives and adheres with all relevant rules and stipulations.
Creation of a trust in Singapore
Forming a trust in Singapore is due to a number of legitimate aspects and peculiarities that make this jurisdiction attractive to trust founders. The basis of trust law in Singapore is the principles of British common law.
Trusts in Singapore boast robust confidentiality and security measures, supported by stringent banking confidentiality laws, thereby shielding trustees from claims in potential probate proceedings. The absence of inheritance and capital gains taxes, along with reduced tax rates for foreign trusts, enhances their economic appeal. Founders maintain managerial authority and have the option to appoint a protector to supervise the trust.
The formation of a trust can be carried out through a will, contract or declaration, which needs an accurate expression of the founder's intentions and a clear explanation of the objects and subjects of the trust. Trusts created through a will are subject to the Wills Law and are activated upon the death of the founder, while declaratory trusts are controlled by the Civil Code.
The time of a trust in Singapore is limited to a century. This is determined by the terms of the trust agreement, the distribution of assets among the recipients, or their collective decision to terminate it.
Initiating a trust in Singapore grants a range of perks, comprising tax benefits, asset security, privacy and managerial flexibility, making this jurisdiction a favorable option for conducting trust transactions for the lasting preservation and management of family wealth.
Establishment of the UK trust
Overview of trust law
In England, organization of trust operates under a framework grounded on British common law, encompassing various legislative acts and regulatory reforms meant to enhance trust transparency and management.
The UK Trust Registration Service (TRS) functions targeting to enhance transparency regarding asset ownership within taxable trusts in the UK.
For tax responsible trusts established on or after April 6, 2021, registration should be completed during 90 days of the trustee's tax responsibility beginning. All trusts, irrespective of tax status, must update registration within 90 days of any modifications.
Choosing a leading trustee during TRS enrollment is fundamental, as he serves as the primary connection to tax authorities. If a trust nominates a professional advisor, he can manage TRS affairs on behalf of the trust.
Professional entities running registered trust funds should comply with additional reporting requirements. They are obligated to regularly audit TRS records against trust activities, reporting any significant discrepancies to HM Revenue and Customs (HMRC).
Failure to comply with TRS obligations can result in fines of up to £5,000 for deliberate violations. HMRC sends a warning letter for the first offense, providing 30 days to rectify the situation. Compliance within this timeframe results in fine cancellation.
Tax system for trusts in the UK
Opening a trust in England is subject to a complex tax system, which differs depending on the type of trust. From the 2024/2025 tax year, the UK trust tax system will undergo significant modifications.
The UK trust funds tax system is complex and subject to change, so it is important to seek professional legal and tax advice to ensure compliance with current legislation and optimization of tax liabilities.
Establishment of the UAE trust
Characteristics and advantages of the UAE as a jurisdiction for trusts
Upsides of opening a trust in the UAE resonates with investors, drawn by the distinct perks inherent to this jurisdiction. With the absence of revenue tax, the nation presents an enticing opportunity for creating trust frameworks adapted for estate administration and strategic estate coordination.
Federal Decree No. 19 of 2020 concerning trusts in the UAE introduces a comprehensive controlling structure governing the establishment and operation of trusts in conformance to its provisions. A pivotal amendment introduced by this decree is the formal recognition of trusts as distinct juridical entities upon their registration. This grants trusts inherent monetary self-sufficiency, administrative autonomy, and legal personality, empowering them to independently partake in legal proceedings. Noteworthy is the clear demarcation of trust assets from the personal holdings of the founder, trustee, and beneficiary, providing robust protection in scenarios involving the founder's or beneficiary's demise or insolvency.
The process of forming a trust demands a written form of trust management, which should be accepted and registered by the relevant authority in each emirate. This form should encompass information about the intentions of the initiator, the beneficiary, the property of the trust, its period and the assigned trustee.
Trust funds should meet certain requirements and transactions involving trusts are recorded in the trust's name on the official records.
While the UAE exempts trusts from income tax obligations, it is imperative to recognize that if either the founder or beneficiary maintains residency in domains characterized by substantial tax burdens, the trust may be deemed tax resident in another nation, thereby exposing it to potential taxation.
Structure of trusts in the UAE
Establishing a trust in the Emirates is a complex procedure, given the different types of trusts and their features. There are various forms of trusts in use in the UAE, including charitable trusts and discretionary trusts. Each of these types has its own unique characteristics and purposes.
- Charitable trust: created solely for charitable purposes. It may be aimed at promoting education, improving public health, or other goals recognized as legitimate under UAE law. It provides effective management of charitable assets and are often used for long-term planning of charitable initiatives.
- Discretionary trust: this form of trust, the founder empowers the trustee complete discretion in choosing the beneficiaries who will receive the income or capital of the trust. This flexibility makes discretionary trusts ideal for complex family structures or situations where the needs of beneficiaries may change with time.
Asset protection and privacy in the UAE
Opting to found a trust in the United Arab Emirates represents a strategic maneuver aimed at safeguarding assets and preserving confidentiality. Within the UAE context, trusts serve not solely as tools for wealth administration and estate strategizing, but also as shields against potential future creditor claims, legal judgments, or unforeseen responsibilities. Below delineate the fundamental tenets underpinning asset security and privacy within the UAE framework:
- Protected from claims by the founder's creditors by transferring assets into a trust, as they are no longer considered personal property. Simultaneously, there exists the possibility of creditors making claims against the beneficiaries' shares in the trust. Trustees can employ their discretionary powers to safeguard assets by distributing them to beneficiaries in a manner that minimizes the risk of creditor claims.
- Privacy is ensured by trusts in the UAE, providing a high level of confidentiality. Record about the trust, including beneficiary details, typically remains private, a crucial aspect for individuals aiming to preserve the anonymity of their monetary transactions.
- With ample scope for customization to suit the individual needs of founders, UAE trusts offer flexibility. Various categories of trusts, such as revocable and irrevocable, discretionary, among others, allow for the creation of a structure tailored to the unique circumstances of each founder.
- Leveraging a sturdy legal infrastructure, regions within the UAE, exemplified by the Abu Dhabi Global Market and the Dubai International Financial Center, furnish a formidable legitimate bedrock for trusts grounded in English common law precepts, thereby solidifying the UAE's status as the premier choice for their establishment.
Creation of a trust in Luxembourg
Luxembourg trusts and their legitimate basis
The establishment of a trust in Luxembourg unfolds as a distinctive procedure tailored to this jurisdiction, imbued with its own peculiar characteristics. Luxembourg, owing to its historical backdrop, strategic location, and economic resilience, presents alluring conditions for the creating of trusts.
Since 2003, Luxembourg has enacted the Trust Law, furnishing a legitimate system for international trusts catering to foreign nationals. This legislation enables foreign citizens to assume roles as founders, beneficiaries, trustees, or fiduciary agents within Luxembourg's transnational trust sphere.
The advantages of creating a trust in Luxembourg encompass:
- Catering to the needs of non-residents, the Luxembourg transnational trust establishment framework facilitates unrestricted participation of foreign individuals in roles such as founders, trustees, beneficiaries, or other fiduciary representatives.
- Confidentiality: Luxembourg has a trust register, but the records in it are not publicly available. The process of initiating a trust in Luxembourg entails engaging with expert consultants, appointing a trustee, outlining the roles of all involved parties, gathering requisite documentation, drafting a comprehensive trust deed, effectuating asset transfers, and formally registering the trust.
Luxembourg tax system for trusts
In Luxembourg, the tax system in 2024 is characterized by a wide range of tax tariffs and available benefits. The basic corporate revenue tax rate is 17%, to which an employment fund tax of 1.19% and municipal income tax of 6.75% are added, resulting in a total tax rate of 24.94%. Despite this, the actual rate can be significantly reduced thanks to the various tax incentives and optimizations offered in the country.
VAT in Luxembourg is divided into four categories: standard rate 16%, intermediate rate 13%, diminished rate 7% and ultra-low rate 3%, which is among the lowest in Europe. Businesses with an annual turnover of less than 35,000 euros can benefit from VAT exemption.
Luxembourg also offers favorable tax conditions for individuals, including a zero tax rate on royalties and capital gains on the sale of shares if the owner does not exceed a 10% stake in the company and has held the shares for more than 6 months.
Residents of Luxembourg are taxed on the basis of their overall profit, including all revenue earned both domestically and internationally.
Creation of a trust in the British Virgin Islands (BVI)
Features of the BVI as an offshore region for trusts
The initiation of a trust in the British Virgin Islands (BVI) in 2024 underscores its status as a preeminent offshore domain favored by affluent international families. Recent legislative enhancements in the BVI have ushered in a series of advancements in trust law. These revisions stem from a comprehensive assessment of the global trusts landscape conducted by the STEP BVI Trust and the Succession Law Review Committee, in collaboration with legal experts and scholars from King's College London.
- BVI powers to amend trusts: court can now approve adjustments to a trust without the agreement of adult beneficiaries if the amendment is considered “reasonable in the circumstances”.
- Codification of the Hastings-Bass Principle: this offers a transparent statutory basis for providing relief in cases where the trustee (or other titleholder) or any other interested party has made an error in the exercise of their powers.
- Broadening the international scope: these stipulations safeguard BVI law's jurisdiction over trusts from the influence of international legal systems by widening the definition of "personal relationships" that could potentially affect claims against a BVI trust.
- Enhancing retention protocols: Implements robust measures to fortify the authority retention of founders and any relevant individuals or officials, comprising but not limited to legitimate counsel.
- Liability to maintain and preserve trust documentation: Revisions have been enacted to enhance the record-keeping responsibilities imposed upon trustees of BVI trusts.
These innovations underscore BVI's commitment to remaining at the forefront of the global trust world, focusing on both innovation and user-friendly trust solutions suitable for the modern era of foreign trust planning.
Tax system for trusts in the BVI
Establishing a trust in the BVI includes special tax advantages, making it appealing to global investors and founders. In 2024, the BVI tax system will remain highly beneficial, especially for offshore trusts.
- No corporation tax means the trust's income, including interest, profits, and capital gains, isn't taxed at the corporate level.
- No capital gains tax: BVI trusts are exempt from capital gains tax, making them more attractive for long-term investment and asset management.
- No VAT: There is no value added tax in the BVI, making cross-border transactions simpler and reducing administrative tasks.
- Trust distributions incur no withholding tax, streamlining income allocation to beneficiaries.
- Annual government levy: trusts in the BVI are required to pay an annual fixed government levy. For example, businesses with an authorized capital of up to US$50,000 pay US$350 per year, while companies with a registered capital of over US$50,001 pay US$1,100 per year.
- Income tax: The BVI does not impose income tax on individuals unless they are employees of a local company.
- Property tax: foreign citizens pay $50 per year for the first half acre of land and $150 for each additional half acre.
Tax benefits make the BVI an attractive location for setting up trusts, especially for founders seeking tax efficiency and confidentiality. However, it's essential to consult knowledgeable tax advisors to ensure compliance with regulations and optimize tax advantages.
Creation of a trust in the Isle of Man
Establishing a trust in the Isle of Man is governed by its unique legal system, which has recently been updated to meet modern needs. Key laws governing trusts outline the structure, rights, and responsibilities associated with trusts, as well as the rules for managing trust assets.
Recent updates to Isle of Man trust laws include clarifications on disclosure rules for trusts. These changes outline who can request trust information and when a trustee may reject. Also, revisions restrict the trustee's liability to trust assets in dealings with third parties.
Incorporating the Hastings-Bass rule into legislation is of utmost importance. This rule allows courts to review a trustee's decisions and potentially invalidate them if all relevant factors weren't considered.
All seasoned trustees must possess a Class 5 license to provide trust administration and related services in compliance with the Financial Services Act 2008.
Creation of Cyprus trust
Acknowledging both the advantages and drawbacks is critical when considering the establishment of a trust in Cyprus. One crucial aspect is Cyprus' past attraction to external organizations combating illicit financial activities and tax avoidance. This could result in increased scrutiny and higher risks from both domestic and global tax enforcement agencies. As a result, creators and beneficiaries of Cyprus trusts should expect stricter regulations regarding financial transparency and oversight.
In addition, Cyprus trusts may be subject to geopolitical factors and changes in the global economy, which may have an impact on the administration of assets within the trust and its financial stability.
Considering the aforementioned factors, trust creators may contemplate alternative jurisdictions to create trusts. Certain jurisdictions known for their reliability offer similar services and benefits include Malta, Luxembourg, and Singapore. Before deciding on the choice of jurisdiction, you must conduct a detailed study and consult with the experts of our company.
Creation of a trust in Malta
Malta as an alternative to Cyprus
Malta offers a cost-effective alternative to creating trusts, distinct from Cypriot trusts in its unique combination of upsides and features that attract the focus of founders and beneficiaries. Let's look at the key aspects that make Maltese trusts particularly attractive:
- Legal structure and regulatory climate: thanks to its stringent yet equitable trust legislation, Malta has emerged as a key player in the realm of financial services and asset management. These laws guarantee strong protection for the rights of both creators and beneficiaries, providing a sturdy basis for effective asset management and tax efficiency.
- Privacy: the highest degree of privacy assured by Maltese laws via rigorous data security measures and protection of beneficiary details renders Maltese trusts an optimal option for individuals aiming to uphold the secrecy of their financial dealings.
- Asset management: Malta offers extensive opportunities for personalized asset management within the framework of trusts, presenting a variety of investment strategies and fiduciary options, enabling founders to tailor property management complying to the individual goals and needs of beneficiaries.
- International recognition: Malta enjoys international recognition as a transparent and reliable location, supported by authoritative international regulators and organizations, boosting trust among international investors.
- Stability: the monetary and political stability of Malta creates a favorable climate for long-term investments and strategic asset management, ensuring resilience and developmental prospects.
Tax system in Malta
The tax framework governing trusts in Malta involves diverse tax rates and conditions, comprising:
- Trust income tax: charged at a standard rate of 35%. However, there exists a possibility for tax refunds that can significantly lower the rate to around 5% by reimbursing 6/7 of the tax paid.
- Capital gains tax: usually not required, including profits from selling assets, gains, and interest.
- Gift and inheritance tax rates fluctuate based on the donor-recipient relationship, with immediate family members enjoying a tax-free rate, while distant relatives and unrelated parties encounter rates of 5% or greater.
- Value-added tax: applied to goods and services in Malta at a standard rate of 18%. Some items may have lower rates of 7% or 5%.
- Property tax: rates are established according to the value and category of the property, ranging from 0.3% to 0.8% of its assessed value. These tax conditions may undergo changes due to policy adjustments and reforms, underscoring the importance of seeking current and specialized tax guidance to ensure compliance and maximize available tax benefits in Malta.
Conclusion
When initiating a trust in 2024, a common strategy for managing wealth and protecting assets involves thoroughly understanding the purpose and structure of the trust, as well as selecting the most suitable legal jurisdiction. We carried out a comprehensive examination of various jurisdictions comprising Hong Kong, Singapore, UK, UAE, Luxembourg, BVI, Isle of Man, Cyprus, and Malta, discerning their distinctive attributes and merits.
Given the insights presented, we strongly recommend consulting experienced professionals at our legal consultancy firm. Crafting and overseeing a trust entails a multifaceted and weighty endeavor, necessitating profound expertise in legislation and global norms, coupled with a nuanced comprehension of each jurisdiction's intricacies. Our skilled experts possess extensive proficiency in trust mechanisms, we stand prepared to guide you towards the most advantageous route to achieve your financial objectives.
Entrusting this responsibility to experts who assure the precision, reliability, and discretion of each transaction is vital, given that contemplating the establishment of a trust is a significant commitment that can profoundly impact your monetary situation and entrepreneur endeavors.
Upon initiating contact with us, you shall be furnished with bespoke counsel carefully customized to meet your peculiar needs and goals. Our paramount objective is to equip you with comprehensive insights essential for making judicious decisions regarding the establishment of a trust in 2024. To engage with us, please choose a contact method from the "Contacts" section that aligns with your preferences.
