Trust Funds

Trusts are often created by wealthy individuals and businessmen during their lifetime who may wish to preserve the family’s wealth for future generations. There will be tax advantages and disadvantages for each and these must be fully explained, understood and taken into consideration for anyone considering establishing a Trust and anyone acting as a Trustee. These are known as Family Trusts.

Wealthy businessmen and women may also be philanthropists and wish to support or create a charitable foundation through the form of a Charitable Trust.

Foundation Trusts are founded within the NHS and provide a structure whereby services are run for service users by members of the public, including patients and staff. It enables decisions away from centralised government. The aim is such Trusts can look at supporting the needs and requirements of the particular areas served. The Trustees of the Foundation Trusts have more of a say in how money is spent and the services provided.

Jointly held assets, such as houses, land and bank accounts are automatically held by the joint owners as Trustees. They can hold these as joint tenants or tenants in common. The way in which these assets are held determines whether the assets either pass to the survivor/s on the death of one party or in accordance with the will or intestacy upon that death. Houses and land can also be put into Trust for other/s and for different reasons. These are particularly attractive if managing and running a home is becoming increasingly difficult for the owner/s and they may wish to hand over control for these matters as well as preserve it for future generations. However, care needs to be taken to ensure such a trust is not construed as deliberate deprivation ( see below Asset Protection Trusts), nor that it falls into the hands of individual/s who may themselves be struggling financially, whose marriage may be shaky or who themselves are vulnerable and not good with money. Should this happen the asset itself may inadvertently fall into the hands of a third party such as a divorced spouse or Trustee in bankruptcy on the divorce or bankruptcy of a Beneficiary.

Trusts are often created by wills where the person making the will doesn’t want any one individual to get their hands on the money until a certain time or event. Or the Settlor may simply wish to protect family money from the potential reach of creditors, former partners of beneficiaries, or even ensure potential beneficiaries continue to receive ongoing access to means tested benefits and all the benefits that flow from these. It may be that the Settlor has a child/ren from a former marriage or relationship for whom they wish to provide after the death or remarriage of their current partner. The most common form of Trust used for the first scenario is likely to be a Discretionary Trust (DT) and in the second either a simple Interest in Possession Trust (IIP Trusts) or a combination of both an IIP Trust and a DT.

Any money/assets given to a minor under a will or intestacy must be held in Trust for them until they reach majority.

Sometimes people wish to use trusts as a form of avoidance of paying for possible future care fees This might be advertised as an Asset Protection Trust or Wealth Preservation Trust. However, a Trust must have a legitimate purpose and avoidance of future care home fees or care costs is not a legitimate purpose. There are serious consequences of making a Trust with this in mind, as the Local Authority will dig down into the motivation for such a Trust.

This is because putting money into a Trust takes it out of the Settlor’s pocket and therefore out of reach for assessments for funding. However, the Local Authority can go back and look at and make an assessment based on that money purposely put outside their reach, and assess this for the purposes of determining contribution towards care fees.

There is no time limit beyond which the Local Authority may go to make such an assessment. Just as with any other gift, this can be assessed as deliberate deprivation and therefore be included in any calculation to determine a contribution towards care costs and funding. Furthermore, by putting it into this type of Trust, it can if not properly created, also put the Settlor themselves in a position of great financial hardship. It might also lead to unintended tax consequences that can prove detrimental and punitive to the Settlor.   There are serious disadvantages to this type of Trust if proper consideration is not made of the reasons for creating a Trust and care is taken in ensuring these reasons are legitimate and watertight.

Often these types of Trusts are advertised as the panacea for avoiding care fees and may be advertised as such. However, if it sounds too good to be true, it probably is! It is absolutely vital to take specific legal advice from someone properly qualified to undertake this sort of work and who is able to explain fully all the consequences of such a Trust.