21 May 2014
Adviser research* from Skandia International, part of Old Mutual Wealth, shows 22% of advisers have experienced problems with a trust arrangement ending in a dispute when family members are appointed as trustees. There are a couple of alternative options that can greatly help advisers and their clients; including setting up a protector on the trust, appointing a corporate trustee to manage the trust, or a combination of the two.
Appointing family members as trustees is often viewed by many as the obvious choice, as family members are those closest to them and they believe they will ensure their wishes are carried out on their death. However, what can often happen is that upon the death of the settlor, the family members can start to fall out and may not see eye to eye on how assets should be distributed to beneficiaries. Family members are emotionally attached to the situation and may have vested interests, so may find themselves in a position where they have a conflict of interest. If they have to take a vote on an action and they are split, there is no easy way to resolve the dispute as they must all agree in order to carry out an act.
Setting up a protector can help. A protector is an individual (or company offering fiduciary services) who can be appointed to fulfil certain duties and responsibilities. The protector will also be given certain powers under the terms of the trust. They do not manage the trust and are not responsible for the administration of the trust or ensuring any tax is paid correctly. However, they do have the right to dismiss a trustee, and where there are disputes or uncertainty among the trustees, they can make the final decision to be taken by the trustees in respect of allocating trust property to beneficiaries (other than for Bare Trusts).
The person chosen to be protector might also be a trustee (if appointed during the settlor’s lifetime), but in situations of conflict, they will have legal power to make the final decision.
An alternative to using family members as trustees is to use a corporate trustee, such as Royal Skandia Trust Company. Using a corporate trustee will ensure the wishes of the settlor are considered and that on-going consideration of the beneficiaries’ needs are taken into account in an unbiased and fair way. A key benefit of using a corporate trustee is they will be able to take care of all the administrative responsibilities, such as maintaining trust records, filing the appropriate tax return at trust level and provide continuity for generations to come.
In the recent international adviser survey, advisers listed the following as the top three benefits for corporate trustees;
- Professional oversight
- Professionals ensure the wishes of the settlor are considered
- Professionals ensure taxes and liabilities are taken care of
Using a combination of corporate trustee and protector could provide a perfect solution for those who are hesitant to relinquish control to a corporate body, but who don’t want family members to be in a potential position of conflict or face the administrative burden of running a trust.
The settlor could appoint themselves as protector and nominate a family member to become the protector on their death. This means the corporate trustee looks after the administrative duties of the trust without burdening the settlor or family members with the responsibility. However, the settlor has peace of mind knowing they, or their family member, can ensure their wishes are being considered.
Not all providers offer the option of having a protector on the trust, so advisers and their clients need to check this first.
Paul Schrijver, international specialist for Skandia international, comments:
“The role of trustee carries with it significant responsibilities. People who appoint family members as trustees may not be aware of the burden they are placing on them and the risk of family conflict they are creating. Using a corporate trustee can help relieve this burden, and setting up a protector can give valuable reassurance to the settlor that a family member or other third party such as a solicitor, will have the legal power to oversee the trust on their behalf.”
*Skandia International Q2 2014 adviser survey, completed by 377 financial advisers from across the globe.