Agri Kultuur June / Junie 2016 | Page 60

Reghardt Draper Boshoff Visser A large majority of South African citizens strongly believe that a trust is the seventh wonder of the world when it comes to the protection of assets. Be that as it may, many people choose to set up a trust without truly realising the potential dangers of such a decision. A trust, simply put, is a legal relationship created by a founder who transfers assets under the control of trustees. The Trustees in return have a legal responsibility to act with care, due diligence and skill when the assets are placed in their care. The main idea of setting up a trust must be to relinquish control over the particular assets so that the trustees can manage and protect the assets on behalf of the founder for the benefit of the beneficiaries of such a trust. Unfortunately, most founders – who may also legally be a trustee of a trust – are almost always tempted to regard the assets that have been transferred to the trust as really still being their own. A founder of a trust must separate himself from the assets in the trust to prevent the courts from piercing the veil of the trust. The courts may in such a case look through the underlying purpose of the trust and regard the assets as being part of the founder’s personal estate. These assets will then be attackable by his creditors and in the event of his death, form part of his personal estate which will subsequently trigger estate duty. To avoid these potential pitfalls, one can consider the following when setting up a trust:  The founder, also being one of the trustees, should avoid having only himself and his spouse as the trustees of the trust. If the founder and his spouse are both trustees, then there should rather be a third independent trustee who will not benefit from the trust;  It is of utmost importance that the founder and the trustees familiarise themselves with their fiduciary duties in the administration of the trust;  Furthermore, the trust must avoid any provisions that give the founder, or a specific trustee, any veto powers to appoint or dismiss any other trustees without the permission of the aforesaid trustees. Regardless of the potential dangers of a trust, it still remains one of the most useful estate planning tools to ensure asset protection and perpetual succession. Our Estate Planning Team at Boshoff Visser Financial Services (Pty) Ltd has decades of experience and is professionally equipped to draft a trust fit for your financial needs to ensure that your loved ones are well looked after. Reghardt Draper Boshoff Visser Finansiële Dienste (Edms.) Bpk. Boshoff Visser Finansiële Dienste (Edms.) Bpk. aanvaar geen verantwoordelikheid vir enige besluit wat enige leser op grond van die bogenoemde mag neem nie. Ons beveel aan dat u u finansiële adviseur spreek voordat u enige besluit in verband met u finansies neem. Boshoff Visser Finansiële Dienste (Edms.) Bpk. is ’n gelisensieerde finansiële diensverskaffer met lisensienommer: 11969.