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Drafting Scottish Trusts And Will Trusts



Drafting Trusts and Will Trusts in Scotland is an adaptation of the highly regarded Drafting Trusts and Will Trusts: A Modern Approach by James Kessler QC, first published for English law in 1992 and now in its 11th edition. That text has generated editions for many trust jurisdictions, with this one, designed specifically for drafting Scottish trusts and co-written by William Grant WS now in its 2nd.




Drafting Scottish Trusts and Will Trusts



Nicola qualified as a solicitor in 1996 and has specialised in incapacity and the law since 2002. She can advise on wills, trusts, estate planning, adult support and protection and guardianship orders. She also acts for individuals as a professional financial guardian. She is co-author of Adult Protection and the Law in Scotland (Second Edition) (Bloomsbury Professional).


STEP has published two versions of the STEP Standard Provisions that are intended to apply, respectively, in England and Wales and in Northern Ireland. The terminology and structure of each version of the Provisions reflects the legal principles that govern the administration of trusts and estates in each jurisdiction and the Provisions have been drafted with specific regard to the applicable case law and statutory provisions.


At present, there is no equivalent version of the STEP Standard Provisions for Scotland. Scotland has its own distinct regime which applies to the administration of trusts and estates. Whilst there are areas of overlap with the law of England and Wales and Northern Ireland, there are also important distinctions in the applicable concepts and terminology and the governing statutes and case law that applies in Scotland.


The incorporation of the STEP Standard Provisions in wills and trusts governed by the law of a different jurisdiction brings with it a range of risks. Such risks include problems of interpretation where there is a mismatch in terminology, the possibility of substantive conflicts between the Provisions and the governing law, and the prospect of administrative difficulties leading to the need for litigation. A drafter who inappropriately incorporates administrative provisions designed to apply in a different jurisdiction will be at risk of a professional negligence claim.


It was felt desirable to have conforming administrative provisions in every will. The route taken was to use a long form precedent referring where necessary to statutes (e.g. ss 31 and 32 TA 1925) as of the UK Parliament. In two of the non-UK cases (India and Isle of Man) local lawyers were instructed to advise on the feasibility of the plan as well as probate hurdles if any. In the rest of the world case similar advice was taken just in Jersey and Bermuda as an 80:20 compromise. Care was taken to avoid inadvertent revocation in the drafting!


As Will Writers and Estate Planning Consultantsmany of our clients wish to create Wills using DiscretionaryTrusts. There are various styles ofDiscretionary Trusts all of which are a very important part of estateplanning. These trusts can protect assets in the event of remarriage orfor children of a previous marriage etc. We also prepare Wills toprotect property against Long Term Care Fees.Click on feesto see our charges at this time.


There are different types of trusts that can be created within your will, and the suitability of a trust depends on each individual and their wishes. A trust is a way of managing and protecting assets for particular beneficiaries, such as young children. Having a trust in place can provide control over when and how a particular beneficiary receives their inheritance. A trust can help protect assets if there was a matrimonial breakdown and can also be used as a tax planning tool.


This advantage will be conveyed to you strongly during your consultation meeting because saving tens of thousands of pounds later makes the relative cost of a few thousand pounds for drafting your will worth it.


Using a Net Lawman will template and our document review service or our drafting service (see below for the link), you can create a Will with a property protection trust within it for the same price as an hour of solicitor's time. Our charges are based on time, not on the saving your estate might make.


The reason to create these types of trusts through your will is to prevent the wealth of the person who dies first from being used to pay for care fees (whether residential care or medical care) for the spouse. Your children inherit a greater value.


One of the disadvantages of a Trust are that Trusts are very difficult to understand. Historically, trusts used language that was specific to the legal field. For those that were not trust and estate lawyers, it was almost impossible to understand. To make things more complicated, trusts often use Latin terms to describe certain legal concepts. Modern trusts are typically clearer, however, this may mean the trust ends up being over 80 pages long.


Interestingly, most people are aware that hiring an attorney to go to court is expensive and are not surprised when it may cost $5,000 or more. However, people are often much more price sensitive to creating their trust. Ultimately, it is important that you pick a qualified trusts and estates attorney to assist you with drafting your Trust in order for the Trust to be the correct choice.


Specifically in the case of unit trusts and inter-vivos trusts, these cannot be created by an oral declaration. Both of them are generally created by a written instrument. A unilateral declaration refers to a declaration made in writing stating; who is the trustee, the terms of the trust and information on the beneficiaries.


A trust may continue for up to 100 years from the date of its existance. The amendments to the Trusts and Trustees Act (by means of Act XII of 2006) enable retirement schemes set up as trusts to continue past the 100th anniversary of the date on which the trust comes into existence (Dr A. Cremona, Ganado & Associates). This also applies to unit trusts and charitable trusts.


There are a number of reasons why a Trust may be created. These are commonly used by high-net worth individuals to plan their financial affairs and provide for other individuals, including future generations. Hence, trusts play a major role in the process of asset holding, asset protection and succession planning (Monica Galea, 2010). Besides these purposes, a person may opt for Trusts as part of their tax planning and management, business continuation, confidentiality and to preserve family wealth, especially when children are spendthrift or incapable of managing wealth.


Malta has been able to emerge as an attractive jurisdiction for the holding of assets of international high net worth entities. Other than imposing itself as a viable trust jurisdiction, the Maltese legislator has also been very careful to ensure that nothing in the Maltese law can impinge on the freedom of international trustees from operating in Malta. In addition, since the introduction of trusts to Maltese residents in 2004, the domestic trust industry and practice has grown considerably.


During British times, trusts law and equity relating to trusts were never absorbed or statutorily incorporated into Maltese law and trusts are only very rarely mentioned in legislation until 1988, when an Offshore Trusts Act was enacted as part of the launching of Malta as an offshore centre (Institute of Financial Services Practitioners Malta, 2008).


One may note that this new law has affected no less than nineteen other laws including the Civil code, notarial laws, company law and fiscal laws. With this act, Malta moved closer to becoming an on shore regime, with the creation of a framework in which the use of trusts is appropriately marketed.


Private trusts can be employed to provide for situations mainly involving family members, such as providing for children with special needs or to protect a spendthrift beneficiary from dissipating the patrimony left to his benefit. Apart from providing for family members, trusts may be used for asset protection, estate planning, preservation of wealth and confidentiality. With regards to asset protection Malta offers a secure and stable political environment in which to hold assets and protect them from strategic risk. In addition a trust can offer protection from creditors or other parties in the country of domicile or residence of the settlor.


Commercial trusts under Maltese law rage from security trusts to the use of trust in setting up collective investments schemes and in the context of security offerings. Unlike private trusts, commercial trusts are afforded greater flexibility, security and certainty by allowing the parties to participate in setting up the trusts and allow the possibility to shape their instrument in the most applicable mode to suit their commercial needs (Tonio Ellul, 2010). The trust legislation identifies a number of scenarios qualifying as commercial transactions such as the use of trusts for:


With the development of Malta as a financial services centre and with the enactment of special laws and regulations in place, Maltese trusts became known as a trust jurisdiction offering a variety of benefits to whoever makes use of such trusts. Regulation of trusts and trustees reveal a great commitment by Malta towards the trust industry and hence one may regard such jurisdiction as being open to progress whilst ensuring that standards are maintained.


Malta also offers a considerable low set-up and administrative cost. The difference in the cost of setting up a fully fledged trust between jurisdictions depends significantly on the professional fees, such as legal and audit fees. A key instrument in the attraction of wealth management activities to Malta has been the Maltese trust and Trustees Act (2005). Offering greater flexibility and high standards of certainty, the act creates a more streamlined and simplified trust regime. This has made Malta more attractive to international clients. Malta is also known for its advantageous taxation regime. The actual impact of taxation on trusts depends on a number of issues namely the type of asset and the status of residence of the beneficiaries. However, Maltese tax law states that income attributable to a trust is charged directly to the beneficiary on distribution of income (Finance Malta, 2010).


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