Estate planning for Irish expats: could a discretionary trust benefit your loved ones?

by Infinity.

Trusts are a popular and legal tool that offer a solution to some of the complications that arise in estate planning. Often a trust is established to transfer assets and wealth to loved ones in the most tax-efficient way possible, but there are additional benefits to using trusts. We look through the benefits of discretionary trusts in estate planning for expats from Ireland.

What is a trust?

A trust is a legal entity that holds property or assets for an individual or an organisation.

The settlor or trustor is the person who sets up the trust.

The trustees are the individuals that manage and control the trust according to conditions established by the settlor.

The beneficiaries are the individuals who benefit from the trust.

The trust deed establishes the rules that apply to the trust fund. These are legally binding.

There are many types of trust: lifetime, fixed and discretionary trusts.

The benefits of a trust

There are a number of reasons why individuals may choose to set up a trust:

• To reduce inheritance tax
• To protect family assets for future generations, not just the next one
• To ringfence funds for a specific purpose
• To provide funds for an individual with a disability
• To provide for a partner if you are not married

The specific benefits of a discretionary trust

For Irish expats, a discretionary trust is the most common type of trust. There are a number of advantages to setting up a trust of this type:

Flexibility

As the name suggests, discretionary trusts give the trustees a large degree of discretion as to how the trust is administered. This is beneficial because it enables flexibility for both trustor and beneficiary over the long term. The trustor may not know what the needs of the trust will be in ten or twenty years’ time but gives the trustees the power to exercise their discretion to adapt the trust to the evolving needs of the beneficiary.

Control

A discretionary trust enables the settlor to control how assets are managed. This is useful in a number of different scenarios which are outlined further down. Control is established with a deed of settlement and a letter of wishes.

The deed of settlement is established when the discretionary trust is set up. The deed of settlement sets out the terms of the trust until the point at which the trustees decide to exercise their discretion. Given that the trustees have enormous power and responsibility, the settlor will also write a non-binding letter of wishes which are in essence guidelines of how the trust should be administered. Although the trustees have absolute discretion, they should follow the wishes set out in this letter unless they have a compelling reason to ignore them.

Mitigation of Capital Acquisitions Tax

Although the beneficiary is named at the outset, they are not deemed to be entitled to benefit financially from the trust until assets are appointed to them. This means that Capital Acquisitions Tax (CAT) is only payable when the trustees distribute assets from the trust to the beneficiaries, based on the rate in place at the time of distribution. This could work in the beneficiary’s favour if CAT rates drop or if thresholds increase between the settlor’s death and them receiving the inheritance. Of course, it could also work the other way.

Beware that discretionary trusts are subject to Discretionary Trust Tax (DTT), introduced in response to the above-mentioned delay in payment of CAT. A one-off 6% charge is applied to the value of all the assets in the trust and an annual 1% charge is applied on 31st December of each year to the value of all the assets in the trust on that date. DTT exemptions apply if a discretionary trust is established for the benefit of someone who is incapacitated, and specific rules apply to minors under the age of 21.

Four situations when a discretionary trust could be useful

For parents with significant assets and young children

Setting up a discretionary trust when you have young children protects your estate if you die while the children are still young. It is possible to delay handing control of assets to children until they are deemed mature enough to handle the responsibility. The trustees manage the assets until that point and have the power to decide when the children will inherit. It doesn’t have to be at a specific age but can take account of the child’s future circumstances. If, for example, an adult child has a drug addiction, the trustees can maintain control by keeping the inheritance in trust.

For parents with children who are unable to manage their own affairs

If your child has disabilities that render them incapable of managing their affairs, a discretionary trust is a way to ensure their financial needs are covered in the event of your death. The trustees essentially take on the role of guardian for the child, providing reassurance for the parents that they will act in the best interests of the child.

For parents with marital difficulties

Discretionary trusts can protect assets against claims from an ex-spouse. Structuring assets within a trust means that they cannot be accessed by a former partner and will pass instead to children.

For parents in financial trouble

Similarly, if you are facing financial problems, a trust can protect your assets against claims by creditors and ensure that your children inherit.

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