REGISTRATION OF TRUSTS

The South African legal system acknowledges various Trusts, each of which possesses a specific legal structure and poses individualistic consequences to the founders’ needs, ensuring strict enforcement and protection of such needs.

Types of Trusts in South Africa

  • Intervivos Discretionary Trust

An Intervivos Trust is a trust registered during the lifetime of the founder thereof (intervivos) in which the trustees have a discretion as to their dealings with the trust assets and – income for the sole purpose of advancing the interests of the beneficiaries of the Trust.

  • Testamentary Trust

Also known as a Mortis Causa Trust, a Testamentary Trust is a trust which comes into operation after the passing of the founder thereof. The prescriptions of a Testamentary Trust shall be recorded in the last Will and Testament of the founder. This trust is beneficial to heirs of a deceased estate under the age of 18 years, and shall the trustees pursue the protection of such assets until the heirs turn 18 years of age, or such age determined by the founder in the Will.

  • Special Trust

A Special Trust is registered if the intended beneficiary is mentally or physically disabled, alternatively where the beneficiary is a minor child. Often a Testamentary Trust also constitutes a Special Trust.

  • Ownership Trust

In terms of an Ownership Trust, the founder transfers ownership of the assets to the trustees (only in their capacity as such) for the sole benefit of the beneficiaries. An Ownership Trust is also known as an Ordinary Trust.

  • Bewind Trust

A Bewind Trust is a trust whereby ownership of the assets is transferred to the beneficiaries; however, the administrative duties and responsibilities of such assets vest in the trustees.

REGISTRATION OF TRUSTS IN SOUTH AFRICA

All trusts in South Africa must be registered with SARS (South African Revue Service) for purposes of Income Tax and must be registered with the relevant Master of the High Court. The location of the greater part of the trust assets shall determine the Master of the High Court with whom the trust must be registered.

It is vital to note that the Trust Property Control Act 57 of 1988 and the Companies Act 71 of 2008 govern the conduct of trustees and the administration of a trust.

REGISTRATION OF TRUSTS

It is of vital importance to choose the correct trust for your specific needs. Speak to one of our specialist trust attorneys today to ensure that your trust adheres to all the legal requirements and that your trust deed is drafted in accordance with your specific wishes and requirements.

THE LEGAL REQUIREMENTS TO CREATE A TRUST IN SOUTH AFRICA

The court set out 5 requirements to create a valid trust:

  1. The founder of the trust must have the intention to create a trust.
  2. The founder must express his intention to create a trust in a way that will create a legal obligation, for example, a written agreement, a will, or a court order.
  3. There needs to be a reasonably certain definition of what will constitute the trust property.
  4. There needs to be a reasonably certain definition of the trust object. It is important to differentiate between a trust object and a trust purpose. The trust object is usually specified in the trust instrument and all the parties involved in the trust usually have knowledge of this object. A trust purpose is what the trust seeks to achieve in its daily workings.
  5. The trust object needs to be lawful. If the trust object be illegal, contrary to public policy or contra boni mores it will be invalid.

It is of vital importance to choose the correct trust for your specific needs. Speak to one of our specialist trust attorneys today to ensure that your trust adheres to all the legal requirements and that your trust deed is drafted in accordance with your specific wishes and requirements.

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Choose Burger Huyser Trust Attorneys as we have gained vast experience in the application of trusts in South Africa over the years. Lean on our specialist knowledge in trusts to achieve your personal estate planning needs.

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