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It’s not just a question of trusting your trust. It is really how much you can trust your independent professional trustee to get things right and keep them right.

Ever since the Badenhorst vs. Badenhorst case it has been considered essential to have an independent professional (accountant or attorney) on board as a trustee of a discretionary trust whose object (or at least one of them) is to protect the trust assets against external creditors.

But this professional trustee should not be selected just for window dressing (i.e. to give the appearance that the trustees are truly independent of the founder), he has some essential duties to perform.

Firstly, he should review the trust deed and satisfy himself that it does not contain any of the flaws common to trusts drawn up by inexperienced attorneys or accountants (especially the “copy and paste” specialists) and then register an amendment to the trust deed if appropriate.

Secondly, he should keep himself up to date with trust case law so that he can ensure that the trustees avoid new pitfalls – there were two reported cases in the Law Society magazine de Rebus recently.

Thirdly, he needs to fully understand the tax implications and obligations of a trust and how to avoid the punitive tax rates applicable to trusts (all of which are, in fact, avoidable).

Choose the right professional and yes, you can trust your trust. Choose the wrong one and take the consequences.

I specialise in trusts and estate planning and act as the independent professional trustee for numerous trusts.

Should you wish to make an appointment, please feel free to visit Derek’s diary and book a time that suits you.

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