Trusts in India: Still Remain Unexplored

Introduction

Trust is defined in section 3 of the Indian Trust Act, 1882 as “an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or of another and the owner. Simply said, it is a transfer of property by one person (settlor) to another (trustee) who manages that property for the benefit of someone else (beneficiary). The settlor must legally transfer ownership of the assets to the trustee of the trust.

Parties to Formation

1. Settlor – The individual / entity who creates a trust. Also known as Trustor or Grantor.

2. Trustee – The owner who is under an obligation to use his ownership for the benefit of another.

3. Beneficiary – The owner who enjoys the benefit of the Trust property.

Essentials in its Making

1. A written Trust Deed signed by the Settlor, 2 Trustees (minimum) and 2 witnesses.

2. Property of the Trust (Money or Other Property).

3. Purpose/Object of trust.

4. Stamp Paper depending on value of property under trust.

5. Registration of deed in Sub-Registrar’s office. Payment of apt registration charges.*

6. Name of Trust

7. Address of Trust

8. Apply for a permanent account number for the trust and open a bank account for it.

*The trust may or may not be registered; registration is required only if an immovable property is transferred to the trust.

Types of Trusts in India

There are two types of trusts in India: private trusts and public trusts. While private trusts are governed by the Indian trusts Act, 1882, public trusts are divided into charitable and religious trusts. The Charitable and Religious Trust Act, 1920, the Religious Endowments Act, 1863, the Charitable Endowments Act, 1890, the Bombay Public Trust Act, 1950 are some of the statutes for the enforcement of public trusts in India. Recently, trusts can also be used as a vehicle for investments, such as mutual funds and venture capital funds. These trusts are governed by Securities and Exchange Board of India (SEBI). Classification in terms of motive of formation is as follows:

1. Simple Trust – Trustee is just a passive depository of the Trust property. There are no active duties expected from Trustee and no directions are given to him.

2. Special Trust – Trustee is active and acts as an agent to execute the Grantor’s wishes. This Trust is operative.

3. Private Trust – Settlor creates a Trust primarily for benefit of one or more particular individuals as its Beneficiary.

4. Public Trust – Beneficiaries are the general public or a class as a whole. It has some charitable end as its Beneficiary.

5. Express Trust – Here, the Settlor creates a Trust over his assets either in present or upon his death. It can be either by way of a will or Trust deed.

6. Implied Trust – It is created where some legal requirements for an Express Trust are not met, but intention on behalf of the parties is to create a Trust that is presumed to exist.

7. Others depending on the type of object(s).

Purpose of Trusts

A Trust can be created for any lawful purpose. It can be effectively used as a tax planning tool, also for protection and management of assets / resources. It can also be formed for Charitable, Corporate Structuring, Privacy, Spendthrift Protection and Succession Planning.

Who can form a Trust?

Any competent individual i.e person over 18 years of age and mentally sound can create a trust for any legal purpose(s). But in case of a minor, for whom a guardian is appointed by the court or of whose property the superintendence has been assumed by the court of wards the age of majority is twenty one years. A trust can be created by or on behalf of a minor with the permission of a principal civil court of original jurisdiction. Apart from a human being, a company, firm, society or association of persons is also capable of creating a trust.

Discussion on Trust Types

Private trust: Private trusts are governed by the Indian Trusts Act, 1882. This Act is applicable to the whole of India except the State of Jammu and Kashmir and the Andaman and Nicobar Islands. Indian Trusts Act, 1882 is not applicable to Waqf, Hindu Undivided Family Property, Charitable Endowments, Trusts to distribute prizes taken in war among captors. Any person who is capable of holding property can be appointed a trustee. Depending upon the nature of the trust, if trustee is required to play a passive and role without any scope of discretion a minor may as well be appointed as trustee. A Corporation, a company or association of persons may as well be appointed as trustee.Every person capable of holding property such as a human being, corporation, Company and even a state can be made beneficiary of a trust. An unborn person can also be made beneficiary. A proposed beneficiary is not bound by the desires of the person creating the trust. Such a proposed beneficiary can renounce his interest under the trust by either making a disclaimer addressed to the trustee or by setting up a claim inconsistent with the trust.
A trust in relation to movable property can be either declared as in the case of immovable property or by transferring ownership of the property to the trustee.

Rights of a Beneficiary of Trust

Unless the trust instrument expresses a different intention, a beneficiary has a right to the rents and profits of the trust property. Again, the beneficiary has the right to ensure that the intention of the author of the trust is specifically executed to the extent of the beneficiary’s interest therein. A beneficiary can compel the trustee to perform any particular act of his duty or can as well restrain the trustee from committing any contemplated or probable breach of trust. If no trustees are appointed or all the trustees die, disclaim or are discharged or where for any other reason the execution of a trust by the trustee becomes impracticable, the beneficiary can file a suit for the execution of the trust. In such a circumstance, the court executes the trust until a trustee is appointed for the same.

Properties not capable of being subject matter of trust-

– Beneficial interest under a subsisting trust.

– Contingent / Chance of receiving property/legacy of a relation on death of a kinsman or chance of a heir apparent to succeed to an estate.

– Right to Sue

– Public Office or salary of public officer (before or after it has become payable)

– Interest in property restricted in its enjoyment to owner personally.

– Stipends to military, naval, air force and civil pensioner’s of state or political pensions.

No person is bound to accept a trust. Trustee may within a reasonable period disclaim it. Such a disclaimer prevents vesting of trust property in such trustee. A disclaimer by one of two or more co-trustees vests the trust property in the other or others, and makes him or them sole trustee or trustees from the date of the creation of the trust. A trustee who has accepted the trust cannot after wards renounce it, except:

– With permission of a principal civil court of original jurisdiction.

– Consent of beneficiary if he is of the age of majority, and of sound mind and not disqualified by any law.

– By special power trust deed.

Trustee cannot delegate his duties to a stranger or other trustee(s). Delegation of duties can be done only if trust deed provides for it or delegation is in the regular course of business or the delegation is necessary or the beneficiary (of sound mind and major) consents to such act.

Private Trusts can also help insolvency protection. If the settlor is a beneficiary, the share of the trust’s assets belonging to the settlor or beneficiary can be attached in case of bankruptcy.

Revocable Trusts: Revocable trusts are created during the lifetime of the trustmaker and can be altered, changed, modified or revoked entirely. Often called a living trust, these are trusts in which the trustmaker transfers the title of a property to a trust, serves as the initial trustee, and has the ability to remove the property from the trust during his or her lifetime. Revocable trusts are extremely helpful in avoiding probate. If ownership of assets is transferred to a revocable trust during the lifetime of the trustmaker so that it is owned by the trust at the time of the trustmaker’s death, the assets will not be subject to probate. Although useful to avoid probate, a revocable trust is not an asset protection technique as assets transferred to the trust during the trustmaker’s lifetime will remain available to the trustmaker’s creditors. It does make it more somewhat more difficult for creditors to access these assets since the creditor must petition a court for an order to enable the creditor to get to the assets held in the trust. A revocable trust evolves into an irrevocable trust upon the death of the trustmaker.

Irrevocable Trust: An irrevocable trust is one which cannot be altered, changed, modified or revoked after its creation. Once a property is transferred to an irrevocable trust, no one, including the trustmaker, can take the property out of the trust. It is possible to purchase survivorship life insurance, the benefits of which can be held by an irrevocable trust. This type of survivorship life insurance can be used for estate tax planning purposes in large estates, however, survivorship life insurance held in an irrevocable trust can have serious negative consequences.

Asset Protection Trust: An asset protection trust is a type of trust that is designed to protect a person’s assets from claims of future creditors. These types of trusts are often set up in countries outside of the United States, although the assets do not always need to be transferred to the foreign jurisdiction. The purpose of an asset protection trust is to insulate assets from creditor attack. These trusts are normally structured so that they are irrevocable for a term of years and so that the trustmaker is not a current beneficiary. An asset protection trust is normally structured so that the undistributed assets of the trust are returned to the trustmaker upon termination of the trust provided there is no current risk of creditor attack, thus permitting the trustmaker to regain complete control over the formerly protected assets.

Charitable Trust: Charitable trusts are trusts which benefit a particular charity or the public in general.

Constructive Trust: A constructive trust is an implied trust. An implied trust is established by a court and is determined from certain facts and circumstances. The court may decide that, in absence of a formal declaration of a trust, there was an intention on the part of the property owner that the property be used for a particular purpose or go to a particular person. While a person may take legal title to property, equitable considerations sometimes require that the equitable title of such property really belongs to someone else.

Special Needs Trust: A special needs trust is one which is set up for a person who receives government benefits so as not to disqualify the beneficiary from such government benefits. This is completely legal and permitted under the Social Security rules provided that the disabled beneficiary cannot control the amount or the frequency of trust distributions and cannot revoke the trust. Ordinarily when a person is receiving government benefits, an inheritance or receipt of a gift could reduce or eliminate the person’s eligibility for such benefits. By establishing a trust, which provides for luxuries or other benefits which otherwise could not be obtained by the beneficiary, the beneficiary can obtain the benefits from the trust without defeating his or her eligibility for government benefits. Generally, a special needs trust has a provision which terminates the trust in the event that it could be used to make the beneficiary ineligible for government benefits. “Special needs” has a specific legal definition and is defined as the requisites for maintaining the comfort and happiness of a disabled person, when such requisites are not being provided by any public or private agency. Special needs can include medical and dental expenses, equipment, education, treatment, rehabilitation, eye glasses, transportation (including vehicle purchase), maintenance, insurance (including payment of premiums of insurance on the life of the beneficiary), essential dietary needs, spending money, electronic and computer equipment, vacations, athletic contests, movies, trips, money with which to purchase gifts, payments for a companion, and other items to enhance self-esteem. The list is quite extensive. Parents of a disabled child can establish a special needs trust as part of their general estate plan and not worry that their child will be prevented from receiving benefits when they are not there to care for the child. Disabled persons who expect an inheritance or other large sum of money may establish a special needs trust themselves, provided that another person or entity is named as trustee.

Spendthrift Trust: A trust that is established for a beneficiary which does not allow the beneficiary to sell or pledge away interests in the trust is known as a spendthrift trust. It is protected from the beneficiaries’ creditors, until such time as the trust property is distributed out of the trust and given to the beneficiaries.

Public Trusts: Trusts designed for the benefit of a class or the public generally. In general, such must be created for charitable, educational, religious or scientific purposes. As stated earlier there is no Central Act applicable for Public trusts, but various states have enacted their own acts suitable to their conditions and administration. Public trusts are popular because it is relatively easy to register and manage them. All one needs to do is to draft a trust deed stating the trustees, the objectives of the trust, and the intended beneficiaries who are a part of the general public. The trust is then registered under the State Trusts Act, thereby making the trust eligible for government tax rebates, namely the Income Tax Act. Generally, a public trust is of a more permanent nature than a private trust. Religious endowments and wakfs are variants of public trusts that come into being when an endowment, usually, property, is dedicated for religious purposes. The creation of religious charitable trusts is governed by the personal laws of the religion. The administration of these religious trusts can either be left to the trustees as per the dictates of the religious names or it can be regulated by statute. In case of Hindus, the personal law provisions regulating the religious trusts have not been codified and are found dispersed in various religious books and epics. Like the private trusts, public trusts may be created inter vivos or by will. Once the trust is created and the property is transferred to the trust it cannot be revoked. In case of breach of public trust, either the Advocate General or two or more persons having interest in the trust can institute a suit regarding following matters:

1. Removal of a trustee

2. Appointment of a new trustee

3. Vesting of any property in a trustee

4. For directing a trustee who has been removed as a trustee to provide possession of any trust property in his possession to the person entitled to the possession of such property.

5. For directing accounts inquiries.

Taxation of Private and Public Trusts

Being an independent entity private trusts are taxed separately. Generally, there are two situations on which the income of the trust is taxed viz. share of a beneficiary/specific trust and discretionary trust. In the case of a specific trust income is received by the trustee on behalf of beneficiary while in case of latter, the shares of beneficiaries are not known as there is more than one beneficiary. In case of discretionary trust, income is determined by the trustees rather than by a representative. Public trusts are taxed as per the sections 11 to 13 of the Income Tax Act, 1961 which deals with taxation of charitable Trust. The basic condition for claiming exemption of income by the trust is that “Income should be derived from the property held under a trust and the said income should be applied to charitable or religious purpose in India”.