Special Trusts Lawyers in Roodepoort

A South African special trust is a tax classification defined in section 1 of the Income Tax Act 58 of 1962: Type A serves qualifying people with disabilities and may be created during life, by will or by court order, while Type B must be created under a deceased person’s will for qualifying relatives. Section 6B does not create a special-trust income exemption; section 6B(1) supplies the disability definition used for Type A.

Both types are administered under the Trust Property Control Act 57 of 1988 and require accurate drafting, Master’s Office authorisation and correct SARS classification. Burger Huyser Attorneys has confirmed Wills & Estates and Trusts practices, with its Roodepoort branch providing a local point for clients to request a scope assessment.

What “Special Trust” Means in South African Law

“Special trust” is an Income Tax Act term. The Master registers and supervises the trust and authorises its trustees; SARS determines whether it meets the Type A or Type B tax definition.

Type A can be inter vivos, testamentary or court-created. Type B alone must arise by or under a deceased person’s will. A family trust does not become “special” merely because its deed uses that label; its formation, beneficiaries and circumstances must satisfy the statutory test.

Why Special Trusts Get Favourable Tax Treatment

Section 5(2) taxes a qualifying special trust on the graduated rates applicable to individuals instead of the 45% flat rate generally applied to an ordinary trust. The trust is not a natural person, so rebates and exemptions reserved for natural persons do not automatically apply.

Subject to section 7 attribution rules, section 25B can tax income vested in a resident beneficiary during the same year in that beneficiary’s hands; retained taxable income is taxed in the trust, and non-resident distributions require separate analysis. Both special-trust types use a 40% capital-gain inclusion rate instead of the ordinary-trust rate of 80%, but specified natural-person-style capital gains tax relief is reserved for Type A under the Eighth Schedule.

Type A vs Type B Special Trusts: Who Each One Is For

Core differences between Type A and Type B special trusts

Feature	Type A	Type B
Formation	Inter vivos, testamentary or court-created	Only by or under a deceased person’s will
Beneficiaries	Solely one or more people with a section 6B(1) disability that prevents sufficient self-maintenance income or management of their financial affairs; if more than one, they must be relatives to one another	Solely relatives of the deceased who were alive at death, including a conceived but unborn beneficiary
Age rule	No statutory age limit	The youngest must be under 18 at year-end; adult relatives may also benefit
Status ends	When the qualifying conditions cease, including after all qualifying beneficiaries have died	For a year in which the youngest is no longer under 18 at year-end, or another requirement fails

Setting Up a Special Trust: The Process Step by Step

1. Test eligibility. Record beneficiaries, relationships and ages and, for Type A, evidence of disability and incapacity.
2. Draft the instrument. A testamentary clause must define beneficiaries, nominate trustees, allocate property and state workable powers and termination terms. The valid will serves as the testamentary trust document.
3. Identify the correct Master. After death, the executor reports the estate. Section 3 links jurisdiction to the office where the will is accepted or which has appointment jurisdiction over the estate.
4. Lodge the documents. Current requirements include J401, J417 trustee acceptances, J450, identity documents and JM21 information. J405 applies where an auditor is appointed, and the Master may require security.
5. Obtain written authority. Section 6 prohibits a nominated trustee from acting before authorisation. Trustees must then use an identifiable trust account and keep property separate.
6. Complete tax compliance. Obtain the appropriate SARS classification, file the annual ITR12T and submit the separate IT3(t) third-party return for beneficiary vestings and distributions.

What a Special Trusts Lawyer in Roodepoort Actually Does

• tests the structure against the current Type A or Type B definition;
• drafts the will or deed and aligns beneficiary rights, trustee powers and termination clauses;
• prepares the Master’s Office application and answers information or security queries;
• advises on trustee care, joint decision-making, banking, records and beneficial ownership;
• coordinates SARS classification and tax-practitioner input where needed; and
• supports later administration, amendments or termination.

The written mandate should distinguish planning, post-death registration, SARS work and ongoing administration. Burger Huyser’s Roodepoort branch should confirm the responsible professional and exact scope before engagement.

Common Pitfalls That Cause Special-Trust Problems

• Wrong provision: treating section 6B as a blanket exemption instead of applying section 1, section 5(2), sections 7 and 25B and the Eighth Schedule.
• Wrong formation: assuming Type A must be testamentary or trying to make an inter vivos trust Type B.
• Wrong beneficiaries: using an overbroad class, or assuming Type B is limited to minor children when adult relatives may benefit while its youngest beneficiary is under 18.
• Premature action: allowing nominees to transact before the Master issues authority.
• Poor tax records: confusing ITR12T with IT3(t), or failing to document vesting and distribution decisions.
• Missed status change: overlooking age, death, incapacity or amendments that end special status for a year.

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

Choose an attorney who separates Master’s Office administration from SARS classification and combines precise drafting with tax-aware issue spotting. Ask who will settle the instrument, handle queries and review long-term care, distribution and termination clauses. The quote should separate legal fees, tax work, third-party charges and annual administration.

Burger Huyser Attorneys’ Roodepoort branch can be asked how its Wills & Estates and Trusts practices will staff the file and whether separate tax input is required.

Practical Considerations: Cost, Timeline, Documents

Information to prepare before instructing an attorney

Issue	Practical answer
Cost	Fees depend on whether the mandate covers a will, Master’s Office and SARS registration, or ongoing administration. Burger Huyser quotes after reviewing the scope; no unverified fixed amount should be assumed.
Timeline	No guaranteed Master’s Office turnaround applies. Estate reporting, incomplete documents, security, queries and SARS classification affect timing.
Documents	Bring identity documents, the existing will or deed, beneficiary details and ages, relationship information, an asset schedule, relevant disability evidence and any Master or SARS correspondence.

Frequently Asked Questions

What makes a trust a “special trust” in South Africa?

A trust is special when it satisfies paragraph (a) or (b) of the section 1 definition in the Income Tax Act 58 of 1962. Type A is for qualifying people with disabilities; Type B is created by will for qualifying relatives while the youngest beneficiary is under 18 at year-end.

How much does a special trusts lawyer cost in Roodepoort?

Cost depends on whether the mandate covers planning and drafting, Master’s Office and SARS registration, or ongoing administration. Burger Huyser Attorneys provides a matter-specific quote after reviewing the work.

Where is the Master’s office for Roodepoort special-trust lodgements?

A Roodepoort testamentary trust linked to an estate administered in Johannesburg is generally dealt with by the Master of the High Court, Johannesburg, not the Roodepoort Magistrate’s Court. Section 3 of the Trust Property Control Act controls jurisdiction, so check the estate file.

Can an existing family trust be converted into a special trust?

Not merely by renaming it. An existing trust qualifies only if its formation, instrument, beneficiaries and circumstances satisfy section 1. An inter vivos trust can potentially be Type A, but Type B must be created by or under a deceased person’s will.

When does a special trust lose its tax-concession status?

Status ends for a year when a statutory condition fails, including when all qualifying Type A beneficiaries have died, the Type A incapacity test fails, or the youngest Type B beneficiary is no longer under 18 at year-end.

How long does it take to set up a special trust after the settlor dies?

There is no guaranteed fixed period. Estate reporting, complete trustee and beneficiary documents, security, Master’s Office queries, written authority and SARS classification all affect timing.

Contact Burger Huyser Attorneys’ Roodepoort branch at 16 Galena Avenue, Helderkruin, Roodepoort, 1724, on 011 668 0030 or 061 516 0091 to request a Type A or Type B scope assessment. Bring the current will or trust instrument, beneficiary details and an asset summary. The firm holds a 4.8/5 average across 250+ Google reviews, Trustindex verified as a “Top Rated Law Firm in South Africa”.