Special Trusts Lawyers in Midrand

A special trust is a trust that meets the strict definition in section 1 of the Income Tax Act 58 of 1962, either because it exists solely for qualifying persons with disabilities or because it was created under a deceased person’s will solely for qualifying relatives. Burger Huyser Attorneys assists Midrand clients with eligibility assessment, deed drafting, registration, trustee appointments and ongoing trust administration.

What Makes a Trust “Special” Under South African Law

“Special trust” is a tax classification, not simply a description chosen by a founder. The trust’s founding instrument, beneficiaries and actual administration must satisfy the Income Tax Act in every relevant year of assessment.

• Type A, or special trust (a): a trust created solely for one or more persons who have a disability as defined in section 6B(1) of the Income Tax Act. The disability must be a moderate to severe limitation affecting the person’s ability to perform daily activities and must be diagnosed in the prescribed manner by a duly registered medical practitioner.
• Type B, or special trust (b): a trust created under the will of a deceased person solely for relatives of that deceased person who are alive, or conceived but not yet born, on the date of death. The youngest beneficiary must be under 18 on the final day of the year of assessment.

A deed that introduces non-qualifying beneficiaries or broader purposes may prevent the trust from qualifying. SARS assesses the classification for tax purposes, while the Master supervises the trust and trustees under the Trust Property Control Act 57 of 1988.

Why the Special-Trust Tax Treatment Matters

An ordinary trust generally pays income tax at the flat trust rate, currently 45%. A qualifying special trust is taxed on a progressive scale similar to the rates for natural persons. However, SARS expressly states that special trusts do not receive the section 6 rebates available to individuals.

The progressive scale can materially reduce tax where income is retained to support a qualifying beneficiary, but the result depends on the trust’s income, deductions, distributions and wider tax position. Type B status is tested annually: it can cease when the youngest beneficiary is no longer under 18 at the end of the year of assessment. Trustees should therefore review eligibility before each return rather than assuming that the original classification continues indefinitely.

Common Uses for Special Trusts in the Midrand Area

• Long-term provision for a person with a disability: assets can be administered under a Type A deed for the beneficiary’s care and support.
• Testamentary provision for young relatives: a properly drafted will can create a Type B trust to hold an inheritance while the statutory age requirements are met.
• Protection from premature control: trustees manage assets instead of transferring a substantial inheritance directly to a vulnerable beneficiary.
• Continuity: the trustees continue managing trust property according to the deed after the founder’s or testator’s death.

A special trust should form part of a coherent estate and tax plan, not be used as a label added after an ordinary trust has already been designed. Burger Huyser’s Trusts practice covers formation and administration and can coordinate the structure with its Wills & Estates work where appropriate.

What Setting Up a Special Trust Involves

1. Eligibility review: identify whether the intended arrangement meets special trust (a) or (b), verify the beneficiaries and consider how eligibility will be evidenced to SARS.
2. Draft the deed or will: record the founder or testator, trustees, beneficiaries, powers, duties and distribution rules without introducing provisions inconsistent with the special-trust definition.
3. Select trustees: choose people who can act independently, keep proper records and comply with fiduciary and statutory duties.
4. Lodge the trust: submit the applicable registration form and supporting documents to the Master with jurisdiction. Common inter vivos documents include the deed, J401 application, J417 trustee acceptances, J450 beneficiary declaration, identity documents and security or proof of exemption where applicable.
5. Obtain written authority: under section 6(1) of the Trust Property Control Act, a trustee may not act without the Master’s written authority. The Master issues letters of authority after accepting the appointment and documents.
6. Register with SARS: register the trust as a taxpayer and supply the supporting material required for its special-trust classification.
7. Administer annually: maintain accounts, beneficial-ownership records and supporting documents; submit tax returns; and reassess whether the statutory conditions remain satisfied.

What to Look for When Choosing a Special Trusts Lawyer in Midrand

• Experience distinguishing special trust (a) and (b) from ordinary inter vivos and testamentary trusts.
• Careful alignment of the deed, will, beneficiary class and section 6B medical evidence.
• Familiarity with the Master’s current forms, beneficial-ownership requirements and letters-of-authority process.
• Coordination between trust law, estate planning, administration and tax advice.
• A clear written fee scope covering drafting, registration, amendments and ongoing work.

Burger Huyser Attorneys is a multi-specialist Gauteng firm whose listed Trusts practice covers trust formation, administration and cancellation, allowing Midrand clients to obtain support beyond the initial deed.

Special Trusts vs Other Trust Types at a Glance

Trust type	Who or what it serves	General tax position
Type A / special trust (a)	One or more qualifying persons with a section 6B disability	Progressive special-trust scale; no section 6 rebate
Type B / special trust (b)	Qualifying relatives under a deceased person’s will, while the youngest meets the under-18 year-end test	Progressive special-trust scale; no section 6 rebate
Ordinary inter vivos trust	Family, investment or other lawful purposes established during the founder’s lifetime	Generally the flat trust rate on taxable income retained in the trust
Ordinary testamentary trust	Beneficiaries provided for under a will	Generally the ordinary trust rules unless the statutory special-trust definition is met
Trading or business trust	A business or commercial activity conducted through a trust	Ordinary trust rules, subject to the facts and applicable tax provisions

Practical Considerations: Cost, Timeline, and What to Bring

Issue	Practical guidance
Cost	Fees depend on eligibility analysis, drafting complexity, trustee arrangements and whether the work forms part of a wider estate plan. Burger Huyser quotes after reviewing the proposed structure.
Timeline	Drafting and signing can be planned, but the Master’s processing period varies. Queries, incomplete documents or security requirements can extend the process; no fixed issue date should be assumed.
First consultation	Bring identity documents for relevant parties, details of intended assets, existing wills or deeds, and beneficiary records. For Type A, bring medical information and the prescribed disability confirmation. For Type B, bring the deceased person’s will, death certificate and documents proving beneficiary relationships and ages.

If you need to establish a Type A special trust, make testamentary provision that may qualify as a Type B trust, or review an existing structure, contact Burger Huyser Attorneys’ Midrand branch on 010 022 4082 or mobile 064 555 3358. The firm’s Trusts practice assists with formation and administration, and its Wills & Estates practice can support a broader estate plan. Burger Huyser has a 4.8/5 average from 250+ Google reviews, verified by Trustindex.

Frequently Asked Questions

What is a special trust in South Africa?

A special trust is a trust satisfying the definition in section 1 of the Income Tax Act 58 of 1962. It is either created solely for qualifying persons with disabilities or created under a deceased person’s will solely for qualifying relatives while the youngest beneficiary meets the under-18 year-end test. It uses the progressive special-trust tax scale rather than the ordinary flat trust rate, but it does not receive section 6 rebates.

How is a special trust different from a regular trust?

A special trust has restricted statutory beneficiary and purpose requirements and receives progressive tax treatment. An ordinary trust can serve broader lawful purposes and generally pays tax at the flat trust rate on taxable income retained in the trust.

Who can benefit from a Type A special trust?

One or more persons with a disability as defined in section 6B(1) can benefit from a Type A trust. The trust must exist solely for qualifying persons, and the moderate-to-severe limitation must be diagnosed by a duly registered medical practitioner according to the prescribed criteria.

How long does setting up a special trust take in Midrand?

There is no guaranteed period. The process includes eligibility assessment, drafting, signing, lodgement and the Master’s review; missing documents, security requirements or official queries can extend the timeline.

Where is the Burger Huyser Midrand branch, and what are the hours?

The branch is at Waterfall Crescent South, Waterfall Office Park, Bekker Road, Vorna Valley, Midrand, 1686. Telephone 010 022 4082 or mobile 064 555 3358. Confirm current consultation hours directly with the branch.

Can Burger Huyser act as trustee for the special trust?

Ask Burger Huyser Attorneys whether an appropriate attorney can accept appointment for the particular trust. The proposed trustee remains subject to the Master’s process and may not act before receiving written authority.