A trust can be established by anyone in South Africa, rich or poor. They are important because they are a component of estate planning and a great tool for distributing assets to the rightful heirs.
Let’s take a look at what a trust is, how it works, what types of trusts are available in South Africa, and how to set one up.
What is a trust?
A trust is a fiduciary relationship in which the trustor grants the trustee the right to hold title to assets on behalf of the beneficiaries. Trusts are created to provide legal protection for the trustor’s assets, allowing the trustor’s assets and properties to be distributed according to their wishes.
A trust can be registered in South Africa under the Trust Property Control Act No. 57 of 1988. According to the act, a trust is a legal arrangement in which control over property is transferred to a person or organization for the benefit of another.
Characteristics
- A trust is a fiduciary relationship that involves three parties.
- Rights are given to the trustee by the grantor to hold title to property or assets for the benefit of another party.
- Trusts are governed by the Trust Property Control Act no 57 of 1988.
- There are two types of trusts in South Africa namely the+- inter vivos trust and a testamentary trust.
How does it work?
A trust is a three-way relationship between a beneficiary, a trustor, and a trustee
Beneficiary: The person who receives a portion or sum of the trust’s property or assets.
Trustee: the organization or person in charge of administering the trust.
Trustor or Grantor: This is the person or entity that establishes the trust and places assets in it.
Because the trustor wishes to transfer property or assets to the beneficiaries through the trustee, a three-way relationship exists. As a result, the trustor enters into a fiduciary agreement with the trustee in order to transfer assets to the beneficiaries.
Since a trust is a legal establishment, the heirs won’t have to go through probate when the trustor dies. The information of the deceased estate won’t be made public.
Types of Trusts In South Africa
In South Africa, there are two types of trusts that can be established: inter- vivos trusts and testamentary trusts. The two types of trusts are discussed further below.
Inter-Vivos Trust
An inter-vivos trust, also known as a living trust, is a trust established during the trustor’s lifetime. The trustor gets to enjoy the benefits of the trust during their lifetime. The transfer of assets will occur when the trustor dies and a trustee will foresee the transfer of the property and assets in the trust.
It is important to note that in South Africa, there are two types of inter – vivos trusts: vested trusts and discretionary trusts. A vested trust has all of the beneficiaries’ benefits written into the trust deed, whereas a discretionary trust gives the trustee complete discretion over how much each beneficiary receives.
Testamentary Trust
A testamentary trust, also known as a will trust, is a trust that specifies how much an individual’s assets will be designated after death. In a nutshell, a testamentary trust is established in the will of the deceased person. A will specifies that a trust must be established upon the trustor’s death.
How to register
Now that you are aware of the various types of trusts available in South Africa, the next step is to learn how to register one. We’ll go over how to set up an inter vivos trust and a testamentary trust.
How to register the inter – vivos trust
An inter – vivos trust can only be registered with the master whose jurisdiction includes the majority of the trust assets. The documents listed below are required for the master to register an inter vivos trust and issue letters of authority to the nominated trustees.
- The original trust deed or notorial certified copy,
- Proof of payment for the registration of a new trust,
- Filled application form, you can find it here
- A completed acceptance of trusteeship form and a completed acceptance of Auditor Application form,
- A completed Beneficial Declaration form,
- Trustee ID copy or passport or CK1,
- Trustee representative ID copy or passport,
- Beneficiaries ID copy, CK1 document, birth certificates, or passport copy,
- Bond of security form completed by trustees, and
- A final certified court order if applicable.
How to register a testamentary trust
- Filled application form, you can find it here
- A completed acceptance of trusteeship form and a completed acceptance of Auditor Application form, and
- A completed Beneficial Declaration form.
- When registering a testamentary trust, there is no application fee, and the deceased’s last will and testament will serve as the trust document.
Advantages
- The trustor has authority over the trust’s terms.
- Because assets in a trust are not subject to probate, there will be no public knowledge of the deceased’s estate.
- It is preferable to leave a trust rather than a will.
Disadvantages
- The proceeds of a trust are taxed at a flat rate of 45 percent.
- If you use an estate attorney, the cost of establishing a trust can be vey high.
Conclusion
A trust is an excellent tool for determining what your beneficiaries will receive from your estate after your death. It is not as difficult to establish a trust, and anyone can register a Trust of their choice by following the application process in this article.
