Private Trust Companies

Private Trust Companies have gained in popularity in recent years. They provide a means by which a Settlor can retain a greater degree of control over his trust affairs, without compromising the validity of the trust structure. A Private Trust Company offers both convenience and flexibility and enhanced protection for fiduciaries.

A Private Trust Company is, essentially, a company formed for the specific purpose of acting as trustee of a single trust, or a group of related trusts. It is not uncommon for settlors to wish to retain a degree of control over assets they settle into trust and this is sometimes achieved by reserving specific powers under the terms of the trust. Such a course has risks, however and in some cases Courts have ruled that the trusts are a sham. This can have unwanted fiscal consequences and may expose the assets to claims by creditors. Another means of retaining influence might be to appoint members of the settlor’s family or his financial advisors as trustee. This is not always possible as the trust may be treated, in consequence, as tax resident where these persons live.

With a Private Trust Company, the Settlor, members of his family or his advisors can be appointed to the Board of Directors and in this capacity they are in a position to influence the manner in which the trust is administered. The composition of the Board can be changed from time to time to bring in members of succeeding generations and in this way involve them in the management of the family affairs. The company itself will generally be administered by a fiduciary in the chosen offshore location and which will be represented on the Board.

A professional trust company will often not be in a position to offer the settlor the degree of flexibility and the speed of response he is looking for and its employees cannot be expected to be as familiar with the business of companies owned by the trust as will be family members. Decisions may have to be referred internally and independent advice taken before they can be put into effect. If a change of trustee is desired it can be a lengthy and expensive process. With the Private Trust Company however, problems such as these can be largely avoided. People familiar with the business make the decisions and a change of direction for the management of the trust can be achieved by changing the Board of the Private Trust Company.

Although it all sounds simple there are some other considerations, which must be taken into account. All the major offshore locations now have a licensing regime for professional trustees and the Private Trust Company may have to apply for a license. This means that, not only will its owners and officers have to qualify, and proposed changes be approved in advance, but also that the ongoing compliance formalities could be onerous. The directors will also have to remember at all times that when they are taking decisions in relation to the trust; it is the interests of the beneficiaries as a whole, which must be considered. They should not be unduly influenced by their personal circumstances, something that is not always easy. The Private Trust Company is nevertheless the right solution in the appropriate circumstances.

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