A Discretionary Trust is a legal arrangement which allows the owner of a life policy (the settlor) to give their policy to a trusted group of people (the trustees), who look after it. At some time in the future they pass it on to some people from a group that the settlor has decided (the beneficiaries).
Discretionary trust
The trustees have complete control over the assets and the income they generate, deciding how and when to give them to the beneficiaries. ` People may set up this kind of trust for their grandchildren, making the grandchildren's parents trustees.
A discretionary trust addresses the relationship in which one person legally owns an asset for the benefit of another person or set of persons. The person who legally owns the asset is called the trustee, and the person or persons for whose benefit the asset is held is called a beneficiary.
The Settlor (the person who puts assets into trust) would lose control of their assets at the point they are transferred to a trust; the assets would therefore fall under the control of the trustees who must manage them in accordance with the Trust Deed.
The trustee manages the trust and distributes its assets at a prescribed time. The trustee is in charge of managing the assets in an irrevocable trust while the grantor is still alive.
The one establishing a trust is called the trustor or grantor. The one who oversees and manages the trust is called the trustee. In a revocable trust, the trustor may control the trust as well, but in an irrevocable trust, the trustee must be somebody else.
Selecting the wrong trustee is easily the biggest blunder parents can make when setting up a trust fund. As estate planning attorneys, we've seen first-hand how this critical error undermines so many parents' good intentions.
Beneficiaries of a discretionary trust are not entitled to receive anything as of right. Instead the beneficiaries have the potential to receive money and the right to ask the trustees to exercise their discretion in their favour.
Discretionary Trust assets do not form part of your Estate
Even if you are the personal trustee of your family trust, the trust will usually continue to have life after your death. The assets are not “your” personally owned assets that are part of your estate to be gifted via your Will.
In addition to following all directions in the trust document, the trustee is responsible for: Assuming legal responsibility for administration of the trust. Taking control of and protecting trust assets. Handling accounting responsibilities of the trust.
If discretionary trustees are exercising their powers to end a trust, they will likely need to formally record their decision in a deed. Checking that all outstanding trust liabilities and expenses have been settled. Reporting and paying any outstanding income, capital gains and inheritance tax to HMRC.
If it is a discretionary trust, you may not have to do much to exclude a beneficiary. The trustee has the discretionary power to exclude beneficiaries from the trust. However, the trustee must act in good faith and for the benefit of the beneficiaries.
An irrevocable trust offers your assets the most protection from creditors and lawsuits. Assets in an irrevocable trust aren't considered personal property. This means they're not included when the IRS values your estate to determine if taxes are owed.
The flexible nature of a discretionary trust means that it can be updated to reflect changing circumstances. The letter of wishes can be updated as often as the settlor chooses without the need to alter the trust.
There are a variety of assets that you cannot or should not place in a living trust. These include: Retirement accounts. Accounts such as a 401(k), IRA, 403(b) and certain qualified annuities should not be transferred into your living trust.
A Trust is preferred over a Will because it is quick. Example: When your parents were to pass away, If they have a trust, all the Trustee needs to do is review the terms of the Trust. It will give you instructions on how they distribute the assets that are in the Trust. Then they can make the distribution.
Although a trustee can withdraw money from a trust account for specific things, there are limits. A trustee's fiduciary duty requires them to comply with the grantor's wishes, even if they are well-intentioned. If they violate their fiduciary duties by disregarding a grantor's wishes they could be removed as a trustee.
WHO IS THE “RIGHT” TRUSTEE? A natural first inclination is to consider a family member or trusted friend who knows you and your philosophies and values well. Family or friends may personally know your beneficiaries and their needs.
The trustee is the person who controls property inside of the trust and handles investment of trust property. The trustee is responsible for carrying out the terms of the trust agreement.
To find out who owns the assets in a revocable trust, look to whoever is the trustee. If the trustee is also the grantor, then the grantor still owns and controls the assets. If the grantor assigned another person or entity as the trustee, the trust owns the assets, which are managed by the trustee.
Generally speaking, once a trust becomes irrevocable, the trustee is entirely in control of the trust assets and the donor has no further rights to the assets and may not be a beneficiary or serve as a trustee.
It is fair to say that in a modern discretionary trust, true control rests not with the trustee, but with the Appointor – the person who has the power to remove or appoint the trustee.
The grantor can set up the trust so the money is distributed directly to the beneficiaries free and clear of limitations. The trustee can transfer real estate to the beneficiary by having a new deed written up or selling the property and giving them the money, writing them a check or giving them cash.