Discretionary Living Trusts A legacy for generations

Written by Trust Specialist, Mervin Messias, it is the culmination of knowledge and expertise that has been acquired over many years’ study and practice of Trust law.

The author recommends the use of Trusts as part of estate planning because they provide solutions to many potentially complicated problems related to asset protection, succession planning, and disability protection. Many little-known benefits of Trusts are revealed to help protect your hard-earned wealth for generations to come. A Trust circumvents the whole process of winding up an estate, together with its potential delays, hassles and frustration.

In fact, a Trust deserves pride of place in any estate plan. It means business as usual, even after death, with no executor, executor’s fees or estate duty.

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    Characteristics of Truste...


    Characteristics of Trustees

    Characteristics of Trustees

    • Be honest and trustworthy
    • Have the ability to make and handle investments
    • Be financially accountable for any mistakes he or she makes
    • To the extent possible, be situated in the area where your beneficiaries and your assets are located
    • Have good relationships with the beneficiaries
    • Be likely to survive you
    • Be someone who you feel confident will manage you affairs wisely

    What kinds of questions should I ask myself when assessing potential trustees?

    You should ask yourself a great number of questions when selecting trustees

    • Are they free of monetary problems of their own?
    • Have they demonstrated financial managerial ability?
    • Do they have any history of substance abuse?
    • Do they know the beneficiaries well?
    • Are they reliable?
    • Do they have the required specialized skills to manage my assets?
    • Have they demonstrated problem-solving ability?
    • Are they the right ages?
    • Will they seek and utilize professional assistance when circumstances require it?
    • Will they accept the appointment?

    Is there any requirement that my trustees have any particular abilities, education, or training?

    The selection of a duly-qualified and honest trustee is one of the most important decisions to be made in the creation of a trust. This is because the trustee is the person with the primary responsibility for carrying out the trust maker’s wishes to the best of his or her ability. As a result, someone who is familiar with the trust maker and his or her desires regarding how assets should be invested and how and when assets should be distributed may serve a valuable role as a trustee. Guidance and specific instructions in these areas can be provided.

    Who to Name as Trustee

    How do I decide who should be my trustees?

    To answer this question, you must first understand in what instances, and for what stages of a trust, trustees are chosen. Trustees need to participate upon the occurrence of the following events:

    • Creation of the trust
    • Disability of a trustee
    • Death of a trustee
    • Resignation or termination of a trustee
    • Creation of subtrusts within a trust

    Usually the trust maker names himself or herself to be an initial trustee and, if married, names the spouse as a co-trustee. The trust can provide as to who should take over the trusteeship upon the disability, death, resignation, or termination of a trustee.

    Designating the successor trustees, those who will succeed the trust maker after his or her death or disability, can be a tough problem, and many people spend a great deal of time agonizing over the decision. Often, however, there are simple solutions to naming successor trustees. First, you want the best assurance that your wishes and desires will be carried out. Therefore, your wishes, desires, goals, and aspirations should be specified in great detail in a carefully worded document, if necessary, in order to guide the successor trustee.

    Second, the successor trustee should be a responsible person whom you have confidence in. Usually people look to close members of the family, such as adult children, parents, siblings, aunts, and uncles. If there are no close family members, they often look to close friends. Consider how much confidence you have that the person will carry out the duties.

    Once you have narrowed your list of candidates, discuss the trusteeship with them. Do not just name someone without discussing it with him or her advance. Some people, while honored by your confidence, just might not want the duties and responsibilities. Or they might be on the verge of a major life change such as taking a new position that requires them to move far away from you. If this happens and they are in line to serve, they may decline when the time comes. In this case, if there are no other successor trustees or some mechanism for naming them, the Master of the High Court will appoint a successor trustee.

    JD (Juris Doctor) / BA, LLB (Wits) / TEP (Trust & Estate Practitioner) / MTP (Master Tax Practitioner – S.A)