Trusts have been a cornerstone of property law since ancient times, with their origins tracing back to Roman law.
However, the concept of trusts as we understand them today primarily evolved in England during the 12th and 13th centuries, especially during the time of the Crusades.
Back then, when a landowner left for the Crusades, they would transfer ownership of their lands to someone trustworthy.
This person would manage the estate in the landowner’s absence, ensuring that feudal dues were paid and received. This arrangement was the precursor to the modern trust system.
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Defining Interest in Possession Trusts
Possession trusts, deeply rooted in English law, have undergone significant evolution.
In the present context, an interest in possession trust guarantees that a beneficiary gains immediate income from the trust’s assets.
Such a possession trust becomes particularly relevant in situations related to family inheritances or safeguarding assets.
The Essence of Possession Trusts
A possession trust is unique in that it ensures the beneficiary receives an immediate benefit, whether it’s income or some other form of advantage, from the trust’s assets.
This immediacy differentiates it from other trusts where benefits might be deferred or conditional.
Today, possession trusts play a crucial role in various scenarios. For instance, they can be instrumental in ensuring that a surviving spouse receives a steady income after the death of their partner.
They can also be used to protect assets from potential creditors, offering a layer of financial security to beneficiaries.
The Mechanics of Trusts
In legal terms, a trust represents a relationship where the holder of a property or asset entrusts it to another party to use solely for a third party’s benefit.
The party providing the property is known as the “settlor,” the one managing the property is the “trustee,” and the one benefiting from the property is the “beneficiary.”
The property or asset in question is often referred to as the “trust property” or “corpus.”
Types of Trusts
Trusts can be either testamentary or inter vivos. A testamentary trust arises post the death of the settlor and is usually created through a will.
In contrast, an inter vivos trust is established during the settlor’s lifetime via a trust instrument. Trusts can also be revocable or irrevocable, with the latter only being “broken” or revoked through a judicial process.
The Role of Trustees
Trustees hold the legal title to the trust property and have a fiduciary responsibility towards the beneficiaries.
This means they must act in the best interests of the beneficiaries, providing regular accountings of the trust’s income and expenditures.
If trustees fail in their duties, they can be removed by a court. Trustees can be individuals, corporations, or public bodies.
How Does Interest in Possession Trust
When you set up a possession trust, you determine the terms. The settlor decides who the trustees and beneficiaries are.
The trustee then actively manages the trust assets, ensuring the immediate beneficiary receives income. Later, the principal assets transfer to the future beneficiaries.
Key Features and Characteristics
A possession trust guarantees immediate beneficiary rights. This means that the beneficiary has an immediate right to the trust’s income.
However, it’s essential to note that future beneficiaries will eventually receive the trust’s main assets. This dual-benefit system makes possession trusts highly versatile.
An Interest in Possession (IIP) trust allows a named beneficiary, often termed the life tenant or life renter in Scotland, to receive any trust income.
This right to income can also manifest in other ways, such as granting the beneficiary the privilege to reside rent-free in a property owned by the trust.
A crucial aspect of possession trusts is that trustees cannot accumulate income.
The beneficiaries of the trust capital are determined by the trust deed and the decision-making powers vested in the trustees.
While it’s uncommon for the life tenant to be one of these beneficiaries, the trust might permit trustees to allocate capital to them.
Reasons for Establishing an IIP Trust
IIP trusts can be created during one’s lifetime or upon death. They are prevalent in wills, where typically, the surviving spouse receives the right to the trust income for their lifetime.
This could also mean the right to occupy the marital home, with the capital being transferred to designated children upon the spouse’s death. These are often termed as life interest trusts.
Before the IHT changes to trusts on 22 March 2006, IIP trusts with life policies, including investment bonds, were common.
These were known as ‘flexible’ or ‘power of appointment’ trusts.
The settlor would name ‘default’ beneficiaries entitled to any trust income and, ultimately, the capital when the trust concludes.
However, unlike a trust with a life tenant, there was no obligation to provide income for these beneficiaries.
Rights and Responsibilities of the Trust Fund
The life tenant only has an automatic entitlement to trust income, not the capital.
The trustees might have discretion over the distribution of capital, or it might automatically go to named beneficiaries when the life interest concludes.
These beneficiaries are often referred to as the remaindermen.
Once the trust is established, the trustees become the legal owners of any trust assets and investments.
They usually possess broad investment powers, but these must be exercised in the best interests of the beneficiaries.
In cases where different beneficiaries are entitled to income or capital, trustees must act fairly between these classes.
Tax Implications and Considerations
The IHT treatment of an IIP trust depends on its creation timing. For lifetime trusts, the primary concern is whether the trust was established before or after 22 March 2006.
Trusts created upon death, such as those formed by the deceased’s Will or the laws of intestacy, are known as immediate post-death interests or IPDIs.
These are chargeable transfers by the deceased unless the IIP is for the spouse or civil partner, in which case it’s an exempt transfer.
Lifetime trusts created after 21 March 2006 have the same IHT treatment as discretionary trusts, with some exceptions for disabled person’s trusts.
Gifts into these trusts are now chargeable lifetime transfers (CLTs) that might be subject to IHT if they exceed the settlor’s nil rate band.
Benefits of Setting Up an Interest in Possession Trust
Asset Protection
One of the primary advantages of a possession trust lies in its robust asset protection capabilities. When you place assets into a possession trust, you create a shield against potential creditors.
This protective measure ensures that your intended beneficiaries receive their rightful allocation, free from external interference.
For many, the peace of mind that comes with knowing their assets remain secure for their loved ones is invaluable.
Tax Implications and Advantages
Possession trusts offer distinct tax benefits that can significantly impact both the immediate beneficiary and the settlor.
Immediate Beneficiary Tax Benefits
The immediate beneficiary might experience reduced inheritance tax liabilities. This is because they have the automatic right to receive the income arising from the trust property as it materializes.
For income tax purposes, the income accruing to the income beneficiary becomes the taxable income of the beneficiary and gets taxed accordingly, unless otherwise exempted.
Capital Gains Tax Benefits
Possession trusts can also provide potential capital gains tax advantages. By strategically managing the trust’s assets, it’s possible to minimize capital gains tax implications, making possession trusts a favorable option for many.
Flexibility in Beneficiary Designations
An interest in possession trust offers flexibility in designating beneficiaries.
For example, a trust can grant the interest in possession to a beneficiary for a fixed period, an indefinite period, or, more commonly, for the remainder of the beneficiary’s life.
Such a life interest trust represents the most prevalent example of an interest in possession trust.
In cases where the interest in possession ends (e.g., the income beneficiary passes away), the trust’s capital then transitions to another beneficiary or multiple beneficiaries.
Trust Duration and Termination
The duration of an interest in possession trust can vary. In the case of a life interest trust, the interest in possession concludes when the income beneficiary dies.
Subsequently, the trust’s capital passes on to another designated beneficiary or beneficiaries. This structure allows for the strategic allocation of assets across generations or among various beneficiaries.
Potential Drawbacks and Limitations
When considering the establishment of a possession trust, it’s essential to weigh its advantages against potential drawbacks.
While possession trusts offer numerous benefits, they also come with certain limitations that potential trustors should be aware of.
Tax Liabilities
Possession trusts, like other financial instruments, come with tax implications. While they can offer tax advantages, they also present potential tax liabilities.
Estate Taxes
Trust assets might be subject to federal estate taxes, depending on the value of the estate and the prevailing tax laws. This can significantly reduce the inheritance for beneficiaries.
Income Taxes
Depending on how the possession trust is structured, there might be income tax implications for the income generated by the trust’s assets.
Complex Loan Structures
Possession trusts can sometimes have intricate loan structures, making it challenging to borrow money. This complexity can limit the trust’s flexibility in financial dealings.
Complexity and Management
Complex Structure
Possession trusts inherently have a complex structure. The trust deed can sometimes restrict the trustees’ power, making it essential to understand the terms thoroughly.
Maintenance Costs
Establishing and maintaining a possession trust can be expensive. There are costs associated with setting up the trust, and ongoing fees for management, especially if you employ professional services.
Funding Challenges
While funded trusts have assets added by the trustor during their lifetime, unfunded trusts contain only the trust agreement without any funding. Proper funding is crucial as unfunded trusts can expose assets to risks that the trust aims to avoid.
Public Accessibility
Another limitation to consider is that certain trust details can become public records. This means that the trust’s details might be accessible to anyone, potentially compromising privacy.
Challenges in Asset Distribution
While possession trusts provide a structured way to distribute assets, there can be challenges. For instance, if not properly set up, there might be disputes among beneficiaries about the distribution, leading to legal battles.
How Families Benefit from Possession Trusts
Ensuring Spousal Security
One of the primary uses of a possession trust within families is to ensure that a surviving spouse remains financially secure.
By setting up a possession trust, the income generated from the trust’s assets is directed to the surviving spouse for their lifetime.
This arrangement provides them with a consistent income stream, ensuring they can maintain their standard of living.
Moreover, the principal assets of the trust are safeguarded for future generations, ensuring that they pass on to the intended beneficiaries, such as children or grandchildren, upon the spouse’s death.
Protecting Children’s Inheritance
Possession trusts also play a crucial role in protecting a child’s inheritance.
By placing assets into a possession trust, parents can ensure that their children receive their rightful inheritance at the appropriate time.
This is especially beneficial in cases where parents might be concerned about their children’s financial maturity or want to protect the assets from potential future creditors.
Addressing Complex Family Dynamics
In today’s diverse family structures, which may include stepchildren, half-siblings, or children from previous marriages, possession trusts offer a solution to ensure fair asset distribution.
For instance, a parent can set up a possession trust to provide for their current spouse while also ensuring that children from a previous relationship receive their fair share of the inheritance.
Business Applications and Implications
Business Succession Planning
For business owners, ensuring the continuity of their business after their departure is paramount. A possession trust can play a role in business succession planning.
By placing the business or a portion of it into a possession trust, the owner can dictate how the business’s income and assets are distributed among beneficiaries, such as family members or key employees.
This ensures a smooth transition and continuity of the business operations.
Protecting Business Assets
Every business faces potential threats, be it from creditors, lawsuits, or other financial liabilities.
By placing certain business assets into a possession trust, businesses can shield these assets from potential claims.
This not only protects the business’s financial health but also ensures that the intended beneficiaries receive the assets.
Taxation and Possession Trusts
Contrary to popular belief, the primary purpose of setting up a trust is not just to avoid taxation.
While possession trusts are subject to regulations, they offer potential benefits like reducing inheritance tax through gifting strategies and providing asset protection in events like divorce or bankruptcy.
Comparing Interest in Possession Trusts to Other Trusts
Discretionary Trusts
Discretionary Trusts stand out due to the flexibility they offer. In these trusts, trustees possess the discretion to appoint capital or income to a broad range of beneficiaries.
This flexibility can be advantageous in various scenarios, such as providing for children from different marriages, rationing capital to spendthrift offspring, or simply protecting capital from potential creditors.
Key Features of Discretionary Trusts
- Flexibility: Trustees can direct income or capital to specific individuals based on the trust’s terms.
- Taxation: Each Discretionary Trust benefits from a standard rate band of £1,000 for taxation purposes. However, this amount can be reduced based on the number of trusts created.
- Capital Gains Tax (CGT): Trustees have a CGT exemption, which is half the rate of an individual’s. This exemption can also be reduced based on the number of trusts created by the settlor.
Investment Considerations for Discretionary Trusts
Trustees must consider the balance between growth and income when selecting an investment strategy for a Discretionary Trust.
While growth-oriented investments might seem attractive due to lower CGT rates, trustees have a duty to ensure diversification and suitability, as they can be held legally responsible for poor investment performance.
Bare Trusts
Bare Trusts, also known as Absolute Trusts, are the simplest trust structures. In these trusts, trustees hold capital/income for the absolute benefit of the beneficiary without any discretion.
Key Features of Bare Trusts
- Beneficiary Rights: Beneficiaries have immediate rights to both income and capital. This makes Bare Trusts suitable for purposes like paying for school fees or growing capital for future needs, such as higher education or property down payments.
- Taxation: Beneficiaries, regardless of their age, benefit from various allowances, ensuring they’re unlikely to pay tax on interest/dividend or capital gains.
Investment Considerations for Bare Trusts
The purpose of the Bare Trust dictates the type of investment.
For instance, if the goal is to pay for school fees, trustees might consider fixed-income mutual funds or low-risk multi-asset funds.
If the objective is capital growth, equity-biased mutual funds or single-premium bonds might be more appropriate.
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