A DIVE INTO THE LAW OF TRUSTS

Published by Kemilembe Barongo

In a world where assets are always at risk of being misused and misappropriated, the protection and utilization of assets has become one of the major concerns most estate owners are worried about. Having an estate plan is one of the big considerations for any estate owner, how will your estate be protected once you can’t handle affairs as you used to, either due to sickness, death or other overwhelming circumstances?

A trust is one of the ways in which a person can manage their estate, it is a legal mechanism set up with the intention of managing property for the benefit of others and is overseen by an individual referred to as a trustee on behalf of the owner of the property and assets (the settlor).

The trustee being one in charge of a trust,  is appointed to hold property on behalf of beneficiaries of the trust in accordance with the terms of the trust. Beneficiaries may be relatives or charitable agencies that the property would pass to in the event the settlor dies.

Trusts have several advantages including:

A trust can hold property rights for persons that cannot legally hold them themselves e.g., children and  mentally challenged persons.

Trusts can preserve property for any period set out in the trust deed, a trust ensures that one’s assets can be re-invested through the trust deed e.t.c

So, one might ask, what’s the difference between a trust and a will??

The will is enacted after the death of a person. In contrast a trust can take effect even whilst a person is still alive, it operates according to the wishes of the settlor and is supervised by a person appointed by the settlor (the trustee).

How to Register?

Any party interested in registering a trust must file an application for the incorporation of a trust to the Administrator-General (AG) at the Registration, Insolvency and Trusteeship Agency (RITA).

The application must be made on specific forms and must include a trust deed with the names and details of the trustees. On the incorporation of the trust, a certificate is issued to the settlor, and it becomes officially recognized as a corporate body with the ability to sue and be sued, have a common seal and the right to own interests and land.

Apart from fees for lawyers and the payments for trustees there are also taxes that have to be paid in connection with a trust.

As can be seen, a trust offers a person a large number of possibilities and several advantages when compared to a will. However, to be better advised, one should consult a qualified lawyer for guidance on the specific requirements for registration, procedures applicable and how best their interests may be protected.