Discretionary Trust

What is a Discretionary Trust?

A discretionary trust is a type of trust in which the trustees have the authority to determine how the trust’s income and capital are distributed among the beneficiaries. The settlor, who creates the trust, grants the trustees discretionary powers, enabling them to make decisions based on the beneficiaries’ needs and circumstances.

This flexibility sets discretionary trusts apart from fixed or absolute trusts, where beneficiaries have a predetermined entitlement to the trust assets.

Key Features of Discretionary Trusts

1. Flexibility: Trustees have discretion over the distribution of income and capital, enabling them to respond to beneficiaries’ changing needs and circumstances.
2. Wide Range of Beneficiaries: A discretionary trust can include a broad class of beneficiaries, offering flexibility in who can benefit from the trust.
3. Protection from Creditors: Assets in a discretionary trust are generally protected from the beneficiaries’ creditors, as the beneficiaries do not have a guaranteed entitlement.
4. Tax Planning Opportunities: Discretionary trusts offer various tax planning advantages, particularly for inheritance and income tax.

Legal Framework Governing Discretionary Trusts

The establishment and administration of discretionary trusts are governed by a combination of statutory provisions and common law principles. Key elements of this legal framework include:

The Trustee Act 2000

The Trustee Act 2000 outlines trustees’ general powers and duties, including their duty of care, powers of investment, and the ability to delegate responsibilities. It provides a statutory framework within which trustees must operate, ensuring they act in the best interests of the beneficiaries.

The Inheritance Tax Act 1984

The Inheritance Tax Act 1984 (IHTA) governs the tax treatment of discretionary trusts. It specifies the conditions under which inheritance tax is payable and provides guidelines for calculating tax liabilities on transfers into the trust and distributions to beneficiaries.

The Trusts of Land and Appointment of Trustees Act 1996 (TLATA)

TLATA governs the management and administration of land held in trust. It outlines the powers of trustees in relation to land, including the sale, leasing, and mortgaging of trust property.

Common Law Duties

In addition to statutory requirements, trustees are bound by common law duties, including fiduciary duties, the duty of care, and the duty to act impartially and in the best interests of the beneficiaries.

Roles and Responsibilities of Trustees

Trustees of discretionary trusts have significant responsibilities and must navigate a complex legal landscape to fulfil their duties effectively. Key roles and responsibilities include:

Fiduciary Duty

Trustees must act in the best interests of the beneficiaries, avoiding conflicts of interest and exercising their powers impartially and with integrity. This includes making decisions that reflect the settlor’s intentions and the trust’s objectives.

Duty of Care

Trustees are required to manage the trust’s assets with the same care and diligence as a prudent person would manage their own affairs. This includes making informed decisions, seeking professional advice when necessary, and regularly reviewing the trust’s investments and performance.

Discretionary Decision-Making

Trustees have the discretion to decide how and when to distribute the trust’s income and capital to the beneficiaries. This requires careful consideration of each beneficiary’s needs, circumstances, and the overall objectives of the trust.

Duty to Keep Accounts

Trustees must maintain accurate and up-to-date records of all transactions and decisions relating to the trust. This includes financial accounts, minutes of meetings, and correspondence with beneficiaries and other stakeholders.

Duty to Provide Information

Trustees are obligated to keep beneficiaries informed about the trust’s administration. This includes providing regular updates and financial statements and responding to any reasonable requests for information from beneficiaries.

Tax Implications of Discretionary Trusts

Discretionary trusts have specific tax implications that trustees and beneficiaries must consider. Key tax considerations include:

Inheritance Tax (IHT)

Transfers into a discretionary trust are generally considered chargeable lifetime transfers and may be subject to inheritance tax if they exceed the settlor’s available nil-rate band. Additionally, discretionary trusts are subject to periodic charges (every ten years) and exit charges when assets are distributed to beneficiaries.

Income Tax

Trust income is subject to income tax at the trust rate, which is higher than individual rates. Trustees must account for income tax on the trust’s income and may need to pay tax on distributions to beneficiaries. Beneficiaries may be entitled to a tax credit for income tax paid by the trust.

Capital Gains Tax (CGT)

Trustees are liable for capital gains tax on any gains realised from the disposal of trust assets. The trust benefits from an annual exempt amount, but gains above this threshold are taxed at the higher trust rate. Trustees must carefully manage the trust’s investments to optimise the tax position.

Benefits of Discretionary Trusts

Discretionary trusts offer several benefits, making them popular for estate planning and asset protection. Key benefits include:

Flexibility in Distribution

The discretionary nature of the trust allows trustees to tailor distributions based on the beneficiaries’ needs and circumstances. This flexibility is particularly valuable when beneficiaries have varying financial needs or their circumstances may change over time.

Asset Protection

Assets held in a discretionary trust are generally protected from the beneficiaries’ creditors, as the beneficiaries do not have a guaranteed entitlement. This makes discretionary trusts an effective tool for safeguarding family wealth and ensuring assets are preserved for future generations.

Estate Planning

Discretionary trusts can be an effective estate planning tool, allowing for the efficient transfer of wealth and minimising inheritance tax liabilities. By using discretionary trusts, settlors can ensure that their assets are managed and distributed in accordance with their wishes, even after their death.

Control and Continuity

Discretionary trusts provide a mechanism for settlors to retain control over the distribution of their assets, even after their death. By appointing trusted individuals or professional trustees, settlors can ensure that their assets are managed in accordance with their wishes and that their beneficiaries are provided for appropriately.

Potential Complications

Discretionary trusts can present certain complications that trustees and beneficiaries must navigate with care despite their many benefits.

Complex Administration

The administration of a discretionary trust can be complex and time-consuming. It requires careful record-keeping, regular reviews, and ongoing compliance with legal and tax requirements. Trustees must be diligent and well-organised to manage the trust effectively.

Potential for Disputes

The discretionary nature of the trust can lead to disputes among beneficiaries, particularly if there are disagreements over the distribution of trust assets. Trustees must manage these disputes sensitively and ensure that their decisions are fair and in the best interests of all beneficiaries.

Tax Implications

The tax treatment of discretionary trusts can be complex, with potential liabilities for inheritance tax, income tax, and capital gains tax. Trustees must be aware of these implications and seek professional advice to manage the trust’s tax position effectively.

Changing Circumstances

Beneficiaries’ needs and circumstances may change over time, requiring trustees to regularly review and adjust their decisions. Trustees must adapt and respond to these changes to ensure the trust meets its objectives.

Legal Compliance

Trustees must comply with a range of legal requirements, including fiduciary duties, statutory obligations, and common law principles. Non-compliance can result in legal and financial repercussions, as well as damage to the trust’s reputation.

The Role of Professional Support

Professional support is often invaluable, given the complexities involved in establishing and administering discretionary trusts. Solicitors and other professionals with expertise in trust law can provide essential assistance, including:

Legal Advice

Solicitors can offer guidance on establishing a discretionary trust, drafting the trust deed, and ensuring compliance with legal requirements. They can advise on complex issues such as tax planning and dispute resolution.

Trust Administration

Professional trust administrators can assist with the day-to-day management of the trust, including record-keeping, financial reporting, and communication with beneficiaries. This support ensures that the trust is managed efficiently and transparently.

Tax Planning

Expert advice on tax planning can help minimise the trust’s tax liabilities and optimise its financial position. Solicitors and tax advisors can assist with accurate tax calculations, compliance with HMRC requirements, and efficient estate administration.

Dispute Resolution

Professional mediators and solicitors can help resolve disputes among beneficiaries or between trustees and beneficiaries. Their expertise in conflict resolution can ensure that disputes are handled fairly and amicably.

Investment Management

Financial advisors and investment managers can help trustees develop and implement an investment strategy that aligns with the trust’s objectives. This includes selecting appropriate investments, monitoring performance, and adjusting the strategy as needed.

Case Studies

To illustrate the practical application of discretionary trusts, consider the following case studies:

Case Study 1: The Smith Family Trust

The Smith Family Trust was established by Mr. Smith to provide for his children’s education and future financial security. Mr. Smith appointed his brother, David, and a professional trustee as the trustees.

• Flexibility in Distribution: The trustees used their discretion to provide financial support for the children’s education, adjusting the distributions based on their changing needs and circumstances.
• Asset Protection: The trust assets were protected from potential creditors and financial risks, ensuring that the children’s future financial security was safeguarded.
• Regular Reviews: The trustees conducted regular reviews of the trust’s investments and performance, making adjustments to optimise the trust’s financial position.

Case Study 2: The Green Charitable Trust

The Green Charitable Trust was established to support environmental conservation efforts. The trustees included both family members and professional trustees from a financial institution.

• Targeted Support: The trustees used their discretion to identify and support impactful conservation projects, responding to changing environmental needs and opportunities.
• Compliance and Governance: The professional trustees ensured compliance with legal and regulatory requirements by maintaining proper records and submitting annual reports to the Charities Commission.
• Strategic Planning: The trustees regularly reviewed the trust’s goals and strategies, adapting to evolving environmental challenges and opportunities for impact.

Case Study 3: The Brown Property Trust

The Brown Property Trust was established by Mrs. Brown to manage her extensive real estate portfolio for the benefit of her grandchildren. She appointed a solicitor and her eldest daughter as co-trustees.

• Property Management: The trustees managed the rental properties, overseeing maintenance, tenant relations, and leasing agreements to maximise rental income.
• Legal Compliance: The solicitor ensured that all property transactions complied with TLATA and other relevant laws, protecting the trust’s legal position.
• Flexible Distributions: The trustees used their discretion to distribute rental income to the grandchildren based on their individual needs and circumstances, ensuring that the trust provided meaningful support.

Conclusion

Discretionary trusts are powerful and flexible tools for estate planning and asset protection. They offer significant benefits, including flexibility in distribution, asset protection, estate planning advantages, and control over asset distribution. However, the administration of discretionary trusts can be complex and requires careful management, compliance with legal and tax requirements, and sensitivity to beneficiaries’ needs.

Professional support from solicitors, trust administrators, tax advisors, and financial managers is crucial to successfully establishing and administrating discretionary trusts. At DLS Solicitors, we are dedicated to guiding our clients through the intricacies of discretionary trusts with expertise and sensitivity. Whether you are establishing a trust, managing an existing one, or dealing with complex issues, our team of experienced professionals is here to support you every step. Ensuring that the trust is administered in accordance with the law and in the best interests of the beneficiaries is our priority, and we strive to provide the highest level of professional service to our clients.