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What does a trust company do?

What is a trust compan?

Revocable Trust, Irrevocable Trust, Living Trust, Inter Vivos Trust, Testamentary Trust

A trust is a means of estate planning popular in the Anglo-Saxon legal area. As part of our practice, we often encounter questions from our clients about this structure, which is foreign to German law. In the following I summarize therefore some principles to the trust and the handling with him in Germany.


First of all, a trust is nothing other than a legal relationship between two persons in which one person transfers certain assets to another person and this is connected with a specific purpose. The transferor is referred to as a “settlor”, “grantor” or even as a “trustor”. The corresponding German term would be that of the “founder of the trust”. The person to whom the intended assets are transferred is referred to as a “trustee”, or “trustee” in English. The one in whose favor the trust furnished, is called “Beneficiary”, in German approximately “beneficiary”.

There are trusts in the US (under state law), in the UK, but also in many so-called off-shore jurisdictions, such as the British Channel Islands, eg Isle of Man or Jersey, or in the Caribbean, such as the Cayman Islands, the British Virgin Islands or the Bahamas.

A trust will be established during life or death. In the former case the trust arises immediately. This is referred to as the ” Living Trust “, or as the ” Inter Vivos Trust “, ie a “trust among the living”. A trust that is structured so that it only comes with the time of death of the settlor, however, is a “testamentary trust”, a “testament Aryan Trust”.

Another characteristic of a trust is that it is either ” revocable “, that is revocable, or ” irrevocable “, irrevocable. The revocable trust can be revoked at any time by the settlor. With his death, the revocable trust becomes irrevocable. An Irrevocable Trust is irrevocable right from the start.   

In the context of a Living Trust, the settlor often becomes a trustee himself. Upon his demise, the replacement trustee named in the trust deed will then follow in his footsteps.

How is a trust managed? 
A factor that is often unfamiliar and difficult for German investors in a trust is that a trust always gives a third party more or less influence over their own assets. The word trust itself means “trust”. The establishment of a trust without trust in the person of the trustee does not make sense. Of course, the settlor may determine the manner in which the assets to be used and increased in the trust are used. Also, the granting of remaining influence of the settlor is possible in principle.

Trustees are often professionals, such as lawyers or so-called “Trust Company”, whose skin purpose is to run the business of trusts. The rights and duties of the Trustee, whether it is a trusted lawyer, trust company or private individual, are determined by the Trust Agreement, the Trust Agreement between Settlor and Trustee / Trustee. An experienced lawyer can set up very strict and strict rules of use and investment with the settler here. Such a trust is called ” Strict Trust “. On the contrary, it is also possible that a trust gives the trustee great freedom. Such a trust is a discretionary trust. In practice, there are usually mixed forms between these two forms.

Regulations in the Trust 
Often the question is asked how the offspring can be favored by the trust exactly. Here, the settlor is granted the widest possible freedom. Thus, there may be a staggering of payments at age, some expenses may be pre-approved, such as training or start-up costs, there may be monthly fixed payments, or even a benefit, more or less in the open Discretion of the trustee. Here it will always depend on the individual case and in particular the wishes of the settler.

Since a “revocable trust” is revocable, and usually the settlor himself acts as a trustee during his lifetime, the effect of such a trust during the lifetime of the settlor is still quite limited. On the other hand, anyone who sets up an irrevocable trust broadly transfers the power over assets to the trust. This can also have tax and inheritance effects (mandatory part).

A Trust ends with the expiration of the time specified in the Trust Deed, or with fulfillment of purpose or the final impossibility of fulfilling the purpose or by court order.

Trust for Germans 
The German courts do not recognize the structure of a trust. In certain circumstances, a court may recognize the intention of the settler expressed in the trust, for example, in appointing an executor. This does not mean that a German can not or should not set up a trust. It means, however, that for assets that are located in Germany and for whose transfer a German court is to be called, the trust structure will be ignored.

The transfer of property to an irrevocable trust can trigger gift tax for a person who is fully taxable in Germany. When the settler dies, complex tax issues often arise for German heirs.

Summary:

  • A trust can also be a useful instrument of estate planning for a German. The trust should then refer exclusively to assets located abroad.
  • The irrevocable trust is better than his reputation. The settler does not have to let all his assets go; There are many ways to protect the settlor’s will even after the trust is established.

What is a trust declaration and apostille?

Yesterday, November 16, at a meeting of parliament, deputies discussed the documents received by the State Committee for National Security from Belize for almost a day. The dispute between the deputies and the head of the GKNB, as well as the prosecutor general,  arose from a different understanding of the legal terms “apostille” and “trust agreement”.

In Parliament, Zhanar Akayev and Segizbaev quarreled because of documents from Belize  eleven Recall, on November 14, the head of the GKNB, Abdil Segizbaev, reported to President Almazbek Atambayev on receiving trust documents (apostille) from official bodies of the state of Belize (Central America).

According to the document, Maxim Bakiyev made an order, certified as an apostille (recognized by participating countries as an original), about transferring 7-8% of MegaCom shares to three deputies in case of support in transferring 51% of the company’s shares. At the same time, the amount of the transaction should not be lower than $ 50 million.

President Almazbek Atambayev instructed the Prosecutor General’s Office to carefully observe all the procedures established by law when reviewing the documents received and to take into account the importance of a thorough study of the circumstances that gave rise to such facts.

“The apostille of the Belize Supreme Court means that the notary recognized by the legislation of this country officially confirmed the authenticity of the trust declaration,” said Prosecutor General Indira Dzholddubaeva at a meeting of the Jogorku Kenesh.

“No other document is required to confirm the apostille in this case,” she said.

“VB” arranged in the form of cards answers to the most frequently asked questions of deputies about the apostille and the trust agreement

What is an apostille?

The international standardized form of filling in information about the legality of the document for presentation in the territory of countries that recognize such a form of legalization.

What does an apostille look like?

According to the 1961 Hague Convention, the apostille has the shape of a square with a side of at least 9 cm and must conform to the sample attached to the convention.

What should be the text of the content of the apostille?

The text of the apostille must contain the following details:

• name of the state that issued the apostille;

• the name of the person who signed the apostilled document;

• the position of the person who signed the document certified by apostille;

• the name of the institution whose seal/stamp affixed a document certified by an apostil;

• the name of the city in which the apostille is affixed;

• Apostil date;

• the name of the authority that marked the apostille;

• apostille number;

• stamp/stamp of the institution that marked the apostille

• the signature of the official who has affixed the apostille.

What language is the apostille written in?

The apostille can be drawn up either in one of the official languages of the convention (French or English) or in the national language of the state that marked the apostille. 

In practice, the inscriptions on the apostille are often duplicated in two languages (one of the convention languages and the national one).

The heading Apostille (Convention de la Haye du 5 octobre 1961) “must be given in French.

Where is the apostille affixed?

According to the convention, an apostille is affixed on the document itself or in a separate sheet attached to the document. In practice, different ways of putting apostilles in different states are used: rubber stamp, glue, (multi-colored) tape, wax seal, embossed seal, self-adhesive stickers, etc., as well as an attachment to the document, which is carried out using glue, fastening rings, paper clips, and others.

What is a trust agreement?

Trust Deed / Declaration of Trust (Trust Deed / Declaration of Trust) – documents confirming ownership of the beneficial owner’s company, executed in the form of a trust agreement or trust declaration.

Who can enter into a trust agreement?

In the first case, this is an agreement under which the beneficial owner transfers and the nominal owner accepts the company’s shares in trust management. The contract is signed by both parties.

In the second case, the document declares that the real owner of the company is the beneficial owner, and the shares of the company are transferred to the nominal shareholder in trust. The declaration is signed only by a nominee shareholder.

What is a trust declaration?

Trust declaration is a simplified form of trust, which is used to ensure the confidentiality of the real owner (beneficiary) of an offshore company.

The trust declaration is a written statement of a nominal shareholder stating that he is only the formal owner of the company’s shares and recognizes the following rights to the beneficiary:

• the right to receive income from the company.

• the right to vote in deciding issues of the company.

• the right to dispose of shares of the company.

The trust declaration actually confirms the ownership of the company. She is irrevocable.

Since the declaration is a unilateral declaration of the nominal shareholder, it is usually subject to notarization and apostilled if necessary.

In what form is a trust agreement?

Trust agreement – the main document of the trust. It can be written or orally (but most often in writing).

Under this agreement, the founder transfers its assets to the trustee (legal or natural person).

The trustee is obliged to manage these assets either in favor of a third party – the beneficiary or to achieve a certain goal (if the trust is targeted).

Trust agreements are not registered anywhere in the majority (while the constituent documents must be officially presented to the state and often contain the names of shareholders).