At OCI we’ve spent a lot of time trying to make the process of ordering a Trust as simple (and as painless) as possible!
Assuming you’ve worked out where you want to register your Trust and who the Settlor should be the next step is to download complete and sign a Trust Order Form.
If you’ve not already done so please download and print the OCI Trust Order Form. It may be a good idea to keep it close by whilst you browse this page as it will make it easier to understand what you are about to read.
As you will see there are a number of details that we need in order to establish an Offshore Trust. Unlike a lot of Offshore Practitioners our approach is to obtain detailed instructions from the outset in order to maximize the chances of the Trust withstanding a legal challenge should that unlikely possibility ever occur.
A person who forms (or who passes assets to) a Trust is called a “Settlor”. At the beginning of the Form the Settlor’s details need to be clearly set out. Only one Settlor is required although if assets being transferred to the Trust are (at present) jointly owned by you and a partner it may prudent for legal reasons to nominate both persons as Settlors.
You will need to give the Trust a name. In the event that your first preferred name is not available you may wish to provide us with two names, a first choice and second choice.
Question 4 asks to set out the purpose of the Trust. A general answer here will suffice. Commonly such Trusts are established for the purpose of asset holding or estate planning purposes.
Persons who are to receive a benefit from the Trust are called Trust Beneficiaries. The Settlor may be a beneficiary though not the sole beneficiary. There must be at least one beneficiary named in the Trust deed (which is the document that “gives birth” to and governs the operation of the Trust)
There are essentially two ways that you can approach the issue of who to name as Beneficiaries (and when). The first (more traditional) method is to clearly set out in the Trust Deed the names of the persons (which may include you and eg your spouse/partner) that are to ultimately benefit from the Trust. Some people feel more comfortable if they can see, from the outset, their names appearing as beneficiaries in the Trust Deed.
Discretionary or Potential Beneficiaries
In most western countries however if an onshore resident is named as a Beneficiary and that fact becomes known to authorities then the Trust might be deemed to be a local resident for tax purposes and made liable to pay taxes onshore on its worldwide earnings.
The second, more creative approach is to set up a Discretionary Trust and to maximize the “Discretionary” nature of the Trust to avoid any person’s names appearing in the Trust Deed. One of the key features of Discretionary Trusts is that the Trustee retains the power to add or substitute further beneficiaries after the Trust has been formed. What you can do in this instance is nominate (in the section of the Form asking for details as to beneficiaries) an internationally recognized charity (eg Oxfam or The Red Cross or something of that ilk) to be the primary beneficiary of the Trust, at the outset. (This means that the Charity’s name would appear in the Trust Deed as the primary or class 1 beneficiary).
If your wish is for the Trustee to add or substitute beneficiaries at a later time all that needs to be done is to tell us the names of those persons and when, (after formation of the Trust) you would like us to add those persons as primary beneficiaries. Please see the example set out in the attached Trust Order Form in terms of how you might go about wording such a request. By taking this approach (and whilst it is unlikely that the Trust deed will ever be discovered), if the document were accidentally found by persons acting on behalf of your creditors (or the Revenue Authorities) they would still be unable to establish whether you (or your partner or family members) are presently entitled to any income (or Property) from the Trust.
Finally if it is your wish that certain persons (egg a “Prodigal Son) never receive a benefit from the Trust you can set out that person/s details towards the end of the Order Form in the section headed “Excluded Persons”.
How is the Trustee to pass on Income and Property?
Obviously, so far as it is possible to do so at this time we would like you to let us know your wishes, as to how and when we are to pass on income from the Trust. You can be as general or as specific as you like, bearing in mind that you can always change your mind and express contrary (or further/other) wishes at a later time. Question 5 sets out some detailed guidelines in this regard; beneath the explanations we have set out an example as to how you may like to set out your wishes.
Another factor that you may wish to keep in mind is that you can pass on income from the Trust to some beneficiaries whilst leaving capital assets of the Trust to others. If the Trust owns a property for example you may wish for the rent to be paid to a spouse during his/her lifetime with the ownership of the property to be passed on to a child/children upon his/her/them attaining a certain age of (eg/say 30 years).
Next you might like to click on and read this page: What is a Protector. Rather than repeating what is set out there we will simply point out that it is not mandatory to appoint a Protector. Also if one is appointed the matters in respect of which the Protector’s permission are required should be limited and specific otherwise there is a risk that the Protector may be deemed to be controlling the Trust from onshore (which could result in the Trust becoming liable to local taxes).
Trustee Powers and Special Provisions
In terms of setting out what Powers the Trustee is to have, there are essentially two ways that such an issue can be approached. You may wish to specifically and in detail set out or limit what the Trustees powers are to be. The downside of this is that if the Trustees powers are seen to be limited then the Trust may leave itself open to challenge as a sham (for being allowed to be controlled by someone else).
Alternatively you may wish to take the more cautious and conventional route which is to allow the Trustee to have standard Discretionary Powers. Even if you take this approach the Trustee’s Discretionary Powers will be clearly set out in the Trust Deed (See also What is a Trust Deed) a draft copy of which will be provided to you after we have had the chance to convert your wishes, as set out in the order form, into a Draft Trust Deed.
For legal reasons it is extremely important that the Trustee be (and be seen to be) in control of the Trust. If a Trust is seen to be controlled from Onshore there is a risk that the Trust may be challenged as a sham or deemed by the authorities to be a local resident for tax purposes.
Also, you will need to consider who should be the signatory on any Trust Bank accounts. So as to ensure that the Trust is seen to be controlled by the Trustee it is not advisable for either the Settlor or a Beneficiary to be the sole signatory on the account. Whilst the most cautious approach is to appoint the Trustee as the sole signatory another option might be to nominate you and the Trustee as co-signatories meaning that two signatures would be required to move funds.
Other Practical issues
Whilst Belize & Seychelles IBCs have some of the most extensive privacy features of any IBCs in the world if an IBC alone is established to do business abroad, (and underlying legal ownership of the IBC were ever discovered) you may leave yourself vulnerable to attack by Creditors, Lawyers or Revenue Collectors. On the other hand a Trust alone can be an awkward structure with which to do business and invest as everything has to be handled by a Trustee and some Companies do not like doing business with just a Trust alone.
By establishing a dual structure you can have practical control and commercial input in respect of your offshore assets and investments, whilst at the same time enjoying the enormous asset protection and tax planning benefits that only an International Trust can offer.
If you would prefer to talk to someone before you place an order (or if you need help to complete the order form) please Contact Us.