Harbour & Associates

In a word, No! So what do we mean by the Asset Protection function of trusts? One important function of a living trust is to protect assets from your creditors if you should be bankrupt, or even if you should be attacked by your creditors. There are three important things to remember – 1) The trustees must never sign surety for any of your personal debts, because the firewall would break down for that creditor. 2) If the creditor is on the trust’s side of the firewall (such as when the trust takes out a bond), then the related assets…

I often get asked “If assets are owned by my company, are they protected from my creditors?”. The answer is usually no. Why? If you own the shares in the company, then the shares are assets in your name which can be attacked by your creditors. If they get your shares, they get the assets. So no protection there. If, on the other hand, you own shares in two companies, the creditors of the one company cannot attack the assets of the other company simply because you’re the shareholder of both. The “Limited” in (Pty) Ltd means that the shareholder’s…

I am often asked whether it is wise to put one’s house into a trust. There are two answers – Yes and No. If you formed the trust mainly to protect assets from your creditors, then you may consider it worthwhile protecting your house in the same way. Be aware that if the house is bonded, then you will have to re-negotiate the bond and that particular creditor (the mortgaging bank) will be on the trust’s side of the firewall, so the house will only be protected from your creditors, not those of the trust itself. Also, if the house…

Any natural person can donate a total of R100 000 each tax year free of Donations Tax, so, if you want to protect your household goods and motor vehicles from creditors, buy an old shelf trust. Your first donation would be dated in the first February in which the trust existed, the second a few days later in March and then every March thereafter. You and your spouse don’t have R200 000 floating around for each donation, so you simply record the donations and agree to owe the money to the trust. Then you take a very detailed inventory of…

Some trust advisors advocate having three (and, more recently, four) trusts. Great for them, dumb for you! They want you to buy these trusts from them (and it is amazing how many otherwise clever people fall for it) – 1) Your family trust. This one is to hold your family goodies, like toys-for-boys, jewellery etc. to protect them from creditors and to avoid the taxes on death. 2) Your property trust. To hold your investment properties. 3) Your share trust. To hold the shares in your business and any listed shares. 4) Your primary residence trust. This is their latest idea.

We form a lot of trusts and never cease to be amazed at how the founders let them fall asleep. It is a common misperception that once you’ve paid for something you can forget about it. We find this with trusts, wills, bookkeeping, tax returns and a whole bunch of the services that we offer. You need to understand that when you form a trust or buy a shelf company, that’s only the beginning. But we even have great difficulty just getting our clients to the point where we can actually form their trust or change the directors of their…

So you set up your trust for asset protection and estate planning. Are there any other benefits? Two that I can think of. One I love the other I dislike intensely. The one I love is that it can be the means whereby one of your companies can qualify as a Small Business Corporation for tax purposes (potential tax saving of R95 000 per annum). In order to qualify, one of the requirements is that the shareholder/member is only a shareholder/member of that particular company. This is a problem if you have other business interests, so what we do is…

There are plenty more, but here are the most obvious top ten – First, the Do’s 1. Engage an independent professional (accountant or attorney) as one of the trustees. Otherwise you risk breaking down the firewall between your creditors and the trust assets. 2. Ensure that you are one of…

asset protection

Can a trust prevent bankruptcy?

Can a company protect my assets?

If I put my house in a trust, is it protected from creditors?

Why an old shelf trust can be so useful

Why you don’t need more than one trust

Don’t let your trust or shelf company go to sleep

What else can my trust do for me?

4 do’s and 6 don’ts with your family trust

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