At its most basic, a trust is formed when one person (the Settlor) distributes assets under the legal supervision of another person (i.e., the Trustee). As a result, the trustee manages the assets to benefit any third parties (i.e., Beneficiary). The trust is not a distinct legal entity but rather a legal “obligation” recognised by the two parties – the “Settlor” and the “Trustee.” This arrangement is specified in official documents known as Trust Deeds.
Settlor:
The Settlor is the person who establishes the trust by transferring a specific asset owned by the Settlor to another person (trustee) with unambiguous instructions that the asset be kept for the benefit of a third party. The Settlor might be an individual or a legal body.
Trustee:
The trustee is the individual who owns the assets in the Beneficiary’s name. While in total possession of the ‘trust assets,’ the trustee is compelled to take legal responsibility to administer the trust property in the best possible manner for the interest of the Beneficiaries. The trustee is barred from practising or utilizing the trust asset for personal goals.
Beneficiary:
The Beneficiary is a third party for whose benefit and earnings the trustee holds and controls the trust asset. The Beneficiary or Beneficiaries may be specifically identified in the ‘Trust Deed’ or a sufficiently specified group of people. A trust’s Settlor might likewise be identified as a Beneficiary.
Who Is Settlor?
Basic Concept
The Settlor is the individual who normally establishes the trust by transferring a specific asset of the trust he or she possesses into the trust. It is done by transferring that asset to other people (trustees) with crystal clear instructions that it be held exclusively for a third party’s profit. The main notions of a settlor are presented below:-
Who Should Be a Settlor?
Generally, anybody 18 years or older and of sound mind has the legal capacity to establish a lawful trust. However, exact state requirements differ.
What exactly is a Settlor in a Trust Deed?
A trust deed is a record that defines the trust’s terms and provisions and identifies the people interested. The Settlor is the author/creator of the trust in a trust deed.
Is it possible to be both a Settlor and a Trustee?
Yes. A trust’s Settlor can also be termed or named as a trustee. A trust may include more than one trustee and more than one settlor. This is a cooperative arrangement, such as when married couples jointly hold a trust.
Is it possible to be both a Settlor and a Beneficiary?
A settlor can be a trust beneficiary but not the sole beneficiary; otherwise, the trust would not exist in the first place. Remember that the main purpose for establishing a trust is to hold property for the benefit of another party, thus if there is no distinct party, there is no need to have a trust.
What is the Settlor’s Functional Role?
The Settlor should pass over the agreed-upon cash to the trustee to be kept on the trust’s heads for the benefit of the beneficiaries. To register that this has occurred, the trustee must print a receipt. This is the point at which the trust is formed as a result of the trust deed and the implementation of the agreed sum:
- The settlor has entrusted trust assets to the trustee.
- The settlor has specified for the trustee which individuals are included in the trust deed’s group of beneficiaries and
- The trustee has agreed to act.
Why should the Settlor’s role be confined to establishing the trust?
He has the authority to withdraw or change the trust to receive a favourable investment in the trustee’s income, take back trust assets, or
The advantages of the trust are mandatory for the Settlor’s minor children.
The Settlor’s function in trust should be limited to the initial creation of the trust and the amount of the repaired money. To avoid the remark that the Settlor’s statement of trust is revocable, the Settlor should be unconnected to the trustee and the trust’s beneficiaries.
What may the Settlor do if the trustee breaches the trust:
- Remove the trustee from any notable or designated services.
- Change or revoke any right or authority granted to the trustee of the trust.
- Add any additional responsibilities, constraints, or liabilities to the trustee’s statutory
- obligations,
- restrictions, or liabilities.
When a trustee fails to respond effectively, action must be taken swiftly.
Who is a Trustee – Fundamental Concept
Who may serve as a Trustee?
The Trustees may be the author, domestic members or associates, professionals such as accountants, attorneys, and so on, a panel of banks or a Trust firm, or any combination of these individuals.
What exactly do you mean by “Successor Trustees”?
If you want to be a sole Trustee, identify at least one ‘Successor Trustee’. If the chief trustee cannot assist, the ‘Successor Trustee’ can take up the responsibility. If you are the sole trustee, you should also name a ‘Successor Trustee’ so the trust can continue after the author’s death. If you create a ‘Revocable Trust,’ you will most likely be the sole trustee.
How Do You Choose Trustees?
There are specific characteristics, which are as follows:
- Paying close attention to detail
- An understanding of his or her obligations and a commitment to meet those responsibilities front-on
- Knowledge of capital and maybe finance, cost accounting, or law
- Excellent written and verbal communication abilities
- Linked to the author’s principles and values.
What are a Trustee’s responsibilities?
- The most important thing to remember when acting as a “trustee” is that these are not your resources or money. You are conserving them for others:
- The grantor/author (if alive) and the beneficiaries, who will get them once the author dies. Certain obligations are as follows:
- Trustee cannot mix trust assets with his or her own. The trustee must maintain distinct checking and reserve accounts.
- The trustee may not use the trust funds for personal gain (without the trust’s permission).
- The trustee must treat all trust beneficiaries equally; the trustee cannot favour one over another without prior notice.
- Trust assets must be allocated wisely to result in practical growth with the least risk.
- The trustee is responsible for keeping correct records, filing “tax returns,” and communicating with the trust’s beneficiaries.
- Trustees should avoid conflicts of interest.
- Duty to Divide Trust Property
- The trustee is responsible for enforcing and defending claims.
- The trustee should maintain confidentiality.
What Should a Trustee Do in the Event of Incapacity?
- Supervising the care of a difficult individual
- Insurance benefits and restrictions are recognised
- Ensures the upkeep of any youngsters and children
- Disability welfare smears
- Organizes a team of consultants
- Notifies the bank and others.
What Does a Trustee Do When the Author Dies?
- Interacts with an attorney to examine trust and process.
- Keeps beneficiaries informed
- Assets are recorded, and current valuations are governed.
- If necessary, partial deliveries or distributions are available.
- Pays notifications and completes the final accounting
- Distributes assets to beneficiaries as directed by the trust
- Manages important business.
- Maintains meticulous recordkeeping and secretarial duties.
What Is the Distinction Between an Executor and a Trustee?
Although the features of ‘executors’ and ‘trustees’ differ, they may be comparable persons. The job of a trustee of a will trust begins when the property’s monitoring term has ended. If assets in the domain are to be kept in ongoing ‘will’ trusts, the ‘executors’ transfer those assets to the trustees of the ‘will’ trust, who then become the legal owners of the assets and maintain them under the rules of the will trust.
It describes how a ‘will’ contains a trust that refers to ‘executors’ and then to ‘trustees.’ If the ‘will’ establishes a trust for the whole estate or the ‘ residuary estate,’ the residuary estate is sometimes referred to as the ‘trust fund’ in the will. If the estate is basic and does not complicate things, trust is best. If there are any problems or peculiar characteristics, or if any assets cannot be dispersed immediately, trust is the best way to go. The trustees have considerable authority over the assets.
Why is a new Trustee being appointed?
- When any of the trustees refuses.
- When a trustee’s term expires.
- When a trustee is absent from India for six months or leaves India to live abroad.
- When a trustee is identified as an imbalanced insolvent.
- When any trustee wants to be freed from the trust, refuses to function as trustee, or accepts a trust that contradicts the trust’s terms.
- If, in the court’s opinion, any trustee becomes incapable or personally insufficient to operate as a trustee.
Is it possible for a Trustee to resign?
- Unless the trust means otherwise, a trustee cannot resign without the court’s agreement.
- Unless all beneficiaries are legally competent to consent to the withdrawal consent.
- The court would normally allow the trustee to retire if continuing to serve would be an undue burden on the trustee, and the departure would not be materially detrimental to the trust.
Who is The Beneficiary – Fundamental Concept
Who would stand to gain?
Section 9 of the Indian Trust Act states that “any individual qualified to hold assets may be a beneficiary.”
A purposed beneficiary may use a disclaimer sent to the trustee to dispute his involvement in the trust. A beneficiary is someone who is named to benefit from a trust arrangement. A beneficiary is often a ‘natural person’; however, it is quite realistic to have a corporation as the Beneficiary of a trust. This is common in current business transaction structures.
A beneficiary may be a “minor” or suffer from a “mental injury.” Many trusts are specifically established for people with these legal disadvantages. Trusts for ‘unborn children’ are also permitted, although they must vest during the appropriate eternal period.
Why Select a Beneficiary?
There are several reasons to appoint a beneficiary to receive your assets following the owner’s death.
1. Obtaining Clarity: By naming a beneficiary, you make it clear who will inherit your assets in the event of your death.
2. To hasten dispersing assets: Having a beneficiary expedites dispersing assets following the author’s death. It may be more long-lasting and pleasant to claim assets as a beneficiary rather than wait for the probate procedure to be completed.
What are the different categories of Beneficiaries?
a) Primary Beneficiaries
The primary beneficiary is the record owner’s initial choice/vote for a beneficiary. In death, the interests will be distributed to the principal Beneficiary if he or she is still alive.
b) Contingent Beneficiaries
Contingent beneficiaries are used as a backup if there are no ‘main live’ beneficiaries or if both cannot be discovered.
If there is no ‘contingent beneficiary,’ or if none of the contingent beneficiaries require the assets, estate law governs how the assets appear.
c) Minors as Beneficiaries
If you send money to kids, consult an ‘estate planning attorney.’ Children are often not authorised to engage in contracts or legally possess property and, hence, cannot hold certain accounts. Nonetheless, there are measures to ensure that money belongs to a child and is used in their best interests, such as ‘pre-appointing’ a trustee.
d) Corporate Beneficiaries
A trust of lands in England cannot be confined to a corporation without “permission from the sovereign.” However, because the ‘Mortmain Acts have no connection to India, a firm in India may be a ‘beneficiary’ of the trust.
e) Foreign Beneficiaries
A foreigner may also be a beneficiary of the trust.
f) Beneficiaries are the settler or his wife
The goodness of the settler and his wife was linked to Trust Registration. The marriage was annulled once the trust was established, and the wife remarried. The court ruled that the wife renounced her interest in the trust.
According to the preceding debates, the state/government is not the country’s natural reserves owner but rather a trustee with a fiduciary responsibility for the successes. The government is supposed to remain devoted to the affairs of its citizens by accepting this job. The ‘Indian Trusts Act 1882‘ addresses all aspects of trust, including the settlor, trustee, and beneficiaries. Section 10 of the ‘Indian Trusts Act 1882 states that every person qualified to hold a property may be a trustee, but wherever the trust requires discretion, he or she cannot fulfil it unless he is satisfactory to the underlying contract.” As a result, the trustee is likewise subject to fiduciary duties.
