Making distributions to trust beneficiaries to save tax at all costs

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A trust can hold and distribute trust funds at any time, but this must be done in accordance with both the terms of the trust instrument and the purpose for which the trust was created. This may involve distributing the income of the trust among family members in a tax-effective way over many years, or providing capital from the trust at a time when it will most benefit the beneficiaries in the future, for example when purchasing a home. In practice, often trustees disregard the purpose for which the trust was set up, as reflected in its objective in the trust instrument, and blindly allocate all income and capital gains to beneficiaries (without making any payment to them) in an attempt to avoid or save tax. Little do they realise that they are slowly undoing the purpose of the trust. The tax tail should never wag the estate plan dog.

Be careful of unintentionally turning a discretionary trust into a vesting trust

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Families set up trusts to achieve the benefits of asset protection and Estate Duty minimisation. Asset protection trusts include a large spectrum of legal structures that are set up in order to mitigate the effects of divorce, attacks from creditors, and bankruptcy on the part of the beneficiary. Their main objective is the protection and maintenance of trust property for the benefit of the family members of the founder, often in perpetuity.

Can the founder of a trust be replaced?

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There seems to be a misconception regarding the position of the founder of a trust, as often we notice that a founder has already been ‘replaced’ in a trust, or we receive a request to replace the founder. The motivation for replacement stems from the death of the founder; an arbitrary person initially being named as the founder in the trust deed after the estate planner was told when they registered the trust that they could not be the founder, trustee and beneficiary; the fact that the family has lost contact with the arbitrary founder; the fact that the founder became unable to act (such as when the founder developed a mental illness such as Alzheimer’s Disease); the fact that people are getting divorced or are ending a relationship; etc.

The younger generation as estate owners and trustees

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When the founding father of Dubai – Sheikh Rashid – was asked about the future of Dubai he said: “My grandfather rode a camel, my father rode a camel, I drive a Mercedes, my son drives a Land Rover, his son will drive a Land Rover, but his son will ride a camel… As an example, Millennials (from mid 20’s to 40) in the US only controls 7% of the wealth. To put this share of control into context, at a similar age the Baby Boomers controlled 21% of the wealth. Only 11% Millennials are found to have a ‘relatively high level’ of financial literacy, whereas 28% were rated ‘very low”. This, together with the reality that the greatest wealth transfer ever of $30-trillion (R400-trillion) over the next two decades – mainly from the Baby Boomers who control 50% of the wealth for the past 20 years – will take place to the younger generations, will impact the world of wealth management, preservation (and use). The question remains – is this generation financially educated and suited to handle such a ‘gigantic’ wealth transfer?

Can you bypass Estate Duty through the use of a trust?

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Estate Duty is a material ‘death tax’ that very few people take cognisance of. Luckily, in terms of Section 4(q) of the Estate Duty Act, but subject to its strict requirements, relief is provided to surviving ‘spouses’ who may have contributed to the accumulation of their assets, by allowing a deduction of the value of all property, which accrues to the surviving spouse, from the gross estate of the deceased. No Estate Duty is therefore payable on qualifying assets. This provides some relief for surviving ‘spouses’ who may end up having to part with assets they used to share with their spouses, just to pay Sar’s tax bill. The definition of ‘spouse’ for this purpose includes a permanent life partner and not only a legal spouse in terms of the Marriage Act or the Civil Union Act. People are advised that this deduction can also be applied when a trust is set up to basically avoid/bypass Estate Duty. Such a structure is commonly referred to as a “Widow’s Trust”. Section 4(q) was however cleverly crafted by Sars and people will be ill-advised to take such advice, which may leave you ‘out-of-pocket’ upon your spouse’s death if you have not made provision for this tax. The purpose of this section is only to postpone the payment of Estate Duty and not the avoidance thereof.

Can trustees refuse to account to the Master?

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In a recent case (Weir-Smith v Master of the High Court of South Africa, Gauteng Division, Pretoria case of 2020), the wife, after exhaustive attempts to obtain information from the trustees - as part of a process to protect, and provide for, her minor children (who are beneficiaries of the trust) - turned to the Master for help. The Master then requested information from the trustees in terms of Section 16(1) of the Trust Property Control Act, requiring trustees to account to the Master, failing which they could be removed as trustees in terms of the Act. The trustees had a history of not accounting to beneficiaries as required in terms of the Doyle v Board of Executors case of 1999, which created legal precedent that beneficiaries are entitled to information. The Master’s request was, however, very taxing as he asked for a ‘shopping list’ of information for a period of twenty four years – which was from inception of the trust. The trustees brought an application to Court challenging the Master’s decision in terms of the Promotion of Administrative Justice Act of 2000 (PAJA), claiming that the Master’s decision in terms of Section 16(1) is administrative action which is unlawful, irrational, unreasonable and procedurally unfair.

Can a business trust be labeled a partnership?

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Even though a trust is not a legal “person”, a trust has an existence, separate and apart from the founder, the trustees and the beneficiaries. It should therefore achieve a separation between ownership/control and enjoyment. The majority of trustees in a business or trading trust should be persons other than the beneficiaries. If not, the trust will be regarded as a partnership. In the Land and Agricultural Bank of South Africa v Parker case of 2005, the Court held that there is nothing wrong with using a trust for business purposes, but that there should be a separation between control and enjoyment of assets – that being the very core of trust law and the basis on which it was developed. This principle is reinforced by Section 12 of the Trust Property Control Act, which states that “Trust property shall not form part of the personal estate of the trustee except in so far as he as the trust beneficiary is entitled to the trust property.”

A look at the use of trusts for business and trading

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Bankruptcies in South Africa averaged 229 companies per month from 1980 until 2020. In August 2000, an all-time high of 511 companies declared bankruptcy, compared to the record low of 63 companies in May of 1988. Projected bankruptcies for 2021 is 220 companies per month and 240 companies per month for 2022. It is a known fact that more than 90% of business owners close their doors within five to seven years of opening them. Up to 90% of these business owners were likely stripped of their personal assets, resulting from sureties and guarantees that they signed as business owners. This could have been avoided had the business owner set up a trust to protect their assets from SARS, the banks, and other creditors.