Author: Saahil Bhargava, 3rd year B.A. LL.B., Bennett University
Ever got confused by the terms Trust and Will, while reading the cases regarding the family property?
The terms trust and will both are different from each other as trusts are made and can be taken into effect while the Will will only come into the effect after the death of the owner of the Will and his legal representative will carry out his decisions according to the will. The second difference is that when the will is formed it is administered under the government and has the power to ensure that will is valid and it is being administrated as per the owner of the will and within the laws.
If we talk about trusts in legal language, its definition is mentioned under section 3 of the trust act 1882. It states that “A Trust is an obligation annexed to the ownership of the property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.”
Trusts are of two types a) Public trusts and b) private trusts.
a) Public trusts are the trust which is related to charitable and religious trusts which are made for the benefit of the people at large. It also covers the trusts related to mutual funds and venture capital funds.
b) Private trusts are the trust made to help people other than a public or altruistic reason. It is made for the monetary advantage of at least one assigned recipient instead of, for the public advantage. It is typically represented by the Indian Trusts Act, 1882.
The things which distinguish the private funds are
1) There should be an intention to create trust by a settler.
2) A subject matter
3) A trustee
4) A beneficiary
When a private trust is designed then it mainly focuses on protecting the assets and has benefits from it for family members in long term. When a trust is formed and the asset which is being used is no longer a property of anyone, or in simple words no one will be the legal owner of that asset if the assets of the family are in the trust. The assets are therefore owned by the trustees. Private trusts are set up under the Indian Trust Act and are needed to be enrolled under the Registration Act, 1908.
A private trust, as the name proposes, is by and large utilized as a family trust. A private trust might be set up as a revocable trust, for example, the settlor sets up trust with the expectation of denying the trust after the reason for it which has been made will be satisfied. A private trust may likewise be an unavoidable trust, i.e., the settlor sets up the trust for a lifetime without the ability to revoke the trust. A trustee of an unavoidable trust that is established in India will be taxed as a delegate citizen of the recipients of such trust.
Benefits of the private trusts are
1) Protect selected assets against claims and creditors – for example, to protect a family home
from the potential failure of a business venture.
2) Set aside money for special reasons, such as a child or grandchild
3) Ensure children, not their partners, keep their inheritances.
4) Manage the risk of unwanted claims on estate when one dies – such as from a former
Purposes of private trusts are.
1) Use of assets vs. transfer of assets.
2) Succession planning
3) Ownership succession
4) Protection of special purposes
5) Wealth management
The normal inquiry with regards to the formation of Private Trust is who can make trust, who can be a trustee and who can be a recipient.
A trust might be made:-
(a) By each skilled to contract, and
(b) With the authorization of a key Civil Court of the unique ward, by or for a minor,
in any case, subject for each situation to the law for the time being in power regarding the conditions and degree in and to which the creator of the trust may discard the trust property. Each individual equipped for holding property might be a trustee; in any case, where the trust includes the activity of caution, he cannot execute it except if he can contract. Each individual equipped for holding property might be a recipient. Now it comes to the point that how to register the private trust. To register the trust, at first, we need a document so-called trust deed which has to be filled up and get it registered with the registrar. The deed should also have stamp paper on it with other main things such as 1) Details
about trust property. 2) Purpose of trust. 3) Beneficiaries of trust.
Types of Private trust:-
Revocable Trust – It is a choice to Will. It does not ensure any resources, as they can be removed from this trust. In this, resources are neither viewed as parted with; thus, they are burdened in the possession of Settlor at the section rate.
Unavoidable Non-Discretionary Trust – Assets cannot be removed here. The settlor has unlimited oversight over trust standards as he can choose which recipient gets which resource, and to what extent. On the off chance that the Settlor is the essential recipient, he/she is charged at a piece rate.
For example, the settlor may concede 40% of the trust’s advantages to the first kid and 60% of the trust’s advantages to the second kid. Or on the other hand, the trust might be set up for a debilitated youngster to guarantee that the person is appropriately focused on if the kid’s folks or watchmen bite the dust.
Permanent Discretionary Trust – For this situation, Settlor allows the trustee to choose which recipient gets which resource and to what extent. The Settlor just chooses recipients. At the end of the day, while the recipients are recognized, their gainful interest in the Trust is not determined forthright. A very much drafted optional trust permits the trustee to add or reject recipients from the class, giving the trustee more noteworthy adaptability to address changes in conditions. The recipients cannot constrain the trustee to utilize any of the trust property for their benefit.