Asset Protection Trusts

If you think the beneficiary risks going bankrupt – perhaps they are not good with money or are struggling to get a business venture off the ground – you may consider using a protective trust.

A protective trust starts out just like a maintenance trust – paying the beneficiary a regular income – but if the beneficiary is declared bankrupt it morphs into a discretionary trust. Suddenly, the trustees have the means of control and they can halt payments to the bankrupt beneficiary to stop them being harassed by creditors. Protective trusts are designed to protect the beneficiary and, just as importantly, the assets of the trust.

Trusts: basics

A trust is a legal arrangement where one or more ‘trustees’ are held responsible for holding or keeping assets. Assets can encompass a wide variety of things including land, money, buildings, shares or personal property. Any of these assets can be put into a trust for the benefit of one or more beneficiaries.

The individuals made trustees will have the responsibility for managing the trust and ensuring that the settlor’s (person who set up the trust) wishes are being carried out. The settlor normally leaves either a will or document called ‘the trust deed’, which outlines their wishes.

The trust’s purpose

Some of the reasons why one may choose to set up a trust are:

Protection or control of family assets

If the beneficiary is too young to control the assets

If an individual is incapacitated or otherwise physically unable to handle their assets

To transfer or gift money or property before death

To transfer or gift money or property upon death under the conditions of the will (a will trust)

Under the England & Wales intestacy rules when a a person dies without a will

Certain trusts in the UK, such as family trusts will require to be taxed.

Other types of non-family trusts such as charities or workplace pension trusts may be better applicable for tax or other reasons.

Trusts in Scotland

For the purposes of taxation, the treatment of trusts is exactly the same throughout the United Kingdom. However in Scotland, certain terms and regulations may vary from the ones used in England & Wales. Your local Sheriff’s Clerk Office will be able to best advise you regarding the various intricacies of Scottish trusts.

Types of trust

The following are some of the possible types of trust:

Bare trusts – with these, the beneficiaries have immediate rights to both capital and income

Interest in possession trusts – the beneficiaries have the right to the trust income only

Discretionary or accumulation trusts – the trustees get to choose whether to pay out trust income, accumulation trust lets trustees re-invest the income

Mixed trusts – these combine different types of trusts

Settlor – interested trusts – the ‘settlor’ who puts assets into a trust can continue to benefit from those assets up until their death

Parental trusts for children – trusts set up by parents for unmarried children below 18 years of age

Non-resident trusts – UK trusts that can be set up or managed by people who live overseas

Trusts for vulnerable people – trusts set up for disabled people or children who lost their parent

Heritage, charity or business related trusts – these encompass a variety of trusts including heritage and maintenance trusts, sinking funds and employee share schemes

For all of the above, special tax rules or levies may apply, make sure to research each type of trust thoroughly to see which ones may be most appropriate to your situation.