Setting up a trust may be ideal solution for protection of assets - Andrew Paterson

Probably the most frustrating answer you can receive to any query is, “Well, that depends”. The implication is that the person to whom you have posed the question either doesn’t know the answer or they are simply hedging their bets in case they are wrong.

People turn to professional advisers because they want precise answers and exact solutions to often complex issues regarding tax, financial or estate planning. The ‘that depends’ answer from a lawyer or accountant can be irritating for a client looking for absolute certainty in the guidance they receive.

One area of advice this unwelcome response applies to revolves around setting up trusts, often seen as the panacea for tax planning problems. However, trusts are not always the most effective solution because, well you’ve guessed it, that depends – on many factors.

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Unfortunately, I have seen an increasing number of new clients with asset protection trusts (APT) – or family protection trusts (FPT) as they’re sometimes known – in place for whom this was not necessarily the right route. I am not suggesting that your mobile will, in the future, be bombarded by PPI-style calls offering compensation for mis-sold trusts, but too many are setting up complex structures without properly establishing if it is the right solution. As ever, expert legal advice and careful thought is a must.

Andrew Paterson is a Partner with Murray Beith MurrayAndrew Paterson is a Partner with Murray Beith Murray
Andrew Paterson is a Partner with Murray Beith Murray

The good news is that you can usually dissolve a trust if it is not the right planning vehicle and we are dealing with an increasing number of such cases where new clients to our firm have an existing trust that is simply not fit for purpose.

That said, for many they can be the ideal solution for protecting assets such as the family home, money and investment portfolios from future tax liabilities. If you dismiss trusts as a planning tool only for high-net-worth individuals, think again.

APTs can be set up by anyone over 18, but they are most commonly used by couples transferring partial or full ownership of their home to their children. The ownership of your home can be transferred to the trust, but you can choose to retain the right to carry on living in the property for as long as you and/or your partner require. However, if you wish to transfer your home to a trust but keep living there without paying a market rent then that may not be an effective gift. This is a particularly complex aspect of trusts that requires specialist input.

However, in many cases, a trust is a way of making a gift, crucially allowing you to retain an element of control of your affairs. Simply transferring your home outright to your offspring could leave you vulnerable if any children were to predecease you or family relationships break down. This can be further complicated if family members to whom you have transferred your home hit financial difficulties and, if the recent Covid situation has taught us anything, it is that many people lack financial resilience.

Trusts come with tax benefits and there can be positive implications for Inheritance Tax (IHT) and Capital Gains Tax (CGT) liabilities depending on individual circumstances. Hold over relief is also available on some gifts to or from a trust to avoid double taxation under IHT and CGT regimes.

As ever, your choice of trustees is hugely important. The usual rules apply when asking someone to help look after your affairs and it must be people in whom you have absolute confidence, and faith they will do the right thing for you.

It is important to hold open and honest discussions with your lawyer or advisory team about your ultimate goals and what you are looking to achieve from tax and financial planning. There might be two or three options, one of which may well be setting up a trust. HMRC is expanding its register later this year to include non-taxable trusts and it has never been more important to obtain professional advice as the administration work involved with trusts has increased in the last couple of years.

If you don’t provide all the required information and highlight with absolute clarity your desired outcomes, you may well get a ‘that depends’ answer.

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