Family Trusts in New Zealand: The Basics
More and more ‘average’ Mums and Dads are choosing to use a family trust for a variety of reasons that include:
Protection against professional liability claims Safeguarding your assets from financial disaster To gain tax advantages (in certain circumstances) Preparing for possible capital gains or death taxes Maintaining confidentiality about your financial affairs Preparing for the time you might need residential care planning Protection of assets against unexpected business debts Reducing the chance of relationship property claims by future partners Providing for your family even after you’re gone, as a mechanism for estate planning
A Trust is best described as a legal relationship created by a ’settlor’ whereby persons (the Trustees) hold assets for the benefit of beneficiaries. Trusts are most commonly used for asset protection purposes, although they can also be used for trading purposes. The asset protection benefit arises from that fact that when a Trustee holds an asset subject to a Trust and a beneficiary enjoys the use of the asset, neither of them holds legal ownership of the asset.
Applying this to a common everyday example, take the situation where Mr and Mrs Smith jointly own their own home. They wish to protect the home from being exposed to the risks of the family business. To do so, they will establish a Family Trust of which they will be the Trustees along with an Independent Trustee.
The beneficiaries of the Trust will be themselves, other family members and potentially Trusts set up for any of these people. The Smiths will then enter into a Sale and Purchase Agreement whereby they sell the home to the Trustees of the Trust and commence a gifting programme.
As Trustees of the Trust, they resolve to allow themselves to occupy the home as beneficiaries. In the future, should a problem arise in the business that mean Mr and Mrs Smith are personally exposed to a claim, their house is protected as they no longer personally own it. This is often referred to as the practice of “controlling everything but owning nothing”.
Finally a word of caution: They must be done correctly and with a view to understanding your entire financial and life situation. Your accountant or lawyer should be taking a holistic view of your circumstances to work out other matters which may impact on how your trust is structured. This may include strategies and structures to minimise tax, and estate planning issues.
Getting it wrong at the start could cause financial loss and pain in the future.
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