标题: 家庭信托 FAMILY TRUST (1) [打印本页] 作者: imissyou 时间: 2007-4-8 12:15:18 标题: 家庭信托 FAMILY TRUST (1)
霍建强（Raymond Huo）律师
家庭信托 FAMILY TRUST (1)
Misconception
误区
Misconception 误区
[1] We find that Asian clients have extreme views on the benefit of a family trust.
One view is that establishing a family trust produces, as if by magic, instant protection from creditors for the assets transferred to the trust. The other view is that because instance protection for the assets transferred is not obtained, there is no point in having a trust.
[2] Reasons for the misconception may vary. But it is fair to suggest that first, the concept of a family trust is something still new in the Chinese culture. Secondly, the misconception has been caused by some excessive publicity which focused on one aspect of the trust without looking at other aspects.
[3] As always there is merit in both points of view. Accordingly, set out below is some basic information about trusts.
见仁见智也罢，我们先就其大致的框架作个简介。
Why have a trust?
为什麽设立家庭信托？
[4] There are many reasons for creating a trust, including:
- General estate and succession planning for the benefit of future generations;
- Retirement planning and savings;
- To reduce personal ownership of assets to lessen exposure to unforeseen third party claims;
- To take advantage of any legitimate income splitting amongst beneficiaries for income streams received by the trust;
- Protection against exposure to re-introduction of estate duty;
- Protection of assets as pre-marital or pre-relationship planning;
- For charitable purposes;
- Enhancing qualification for means tested state assistance;
- Limiting potential liability to claims under the Family Protection Act and Testamentary Promises Act.
[5] One person (the settlor) transfers property (any asset) to another person (the trustee) who holds that property for the benefit of ascertainable persons (the beneficiaries).
所谓信托，就是由设立人将财产转给托管人，为法定收益人获益的法律构成和行为。如图所示：
What makes a trust valid?
- The settlor must have intended to create the trust;
- The settlor must have transferred property to the trustee;
- The settlor must have specified at the time of creating the trust either who the beneficiaries are or how they are to be ascertained;
- There should also be a validly appointed trustee or trustees, who accept their appointment as trustees;
- Evidence of its existence. This is normally a trust deed which records the formation and sets out the terms of the trust.
Who should be appointed as a trustee?
[6] Any person or entity capable of owning assets can be a trustee. Generally the trustees of a family trust are the persons establishing the trust together with an independent trustee. In today’s society a trustee requires knowledge, expertise, impartiality and administrative capability in relation to the trusts being administered and for this reason the independent trustee is often a professional advisor.
谁可以做托管人？
任何自然人或法人只要具备拥有财产的能力，均可做托管人。通常而言，家庭信托的托管人由设立人加独立托管人群组成。在现代社会，一个托管人需要具备良好的知识，专业素养和管理水准。因此，独立托管人多由专业人士担任。
Trustee Obligations
[7] The trustee must administer the trust in accordance with the terms of the trust deed and the law relating to trusts and has duties to the beneficiaries.
托管人职责
托管人必须依照信托契据的规定以及相关法规，管理信托，为受益人尽责。
Who can be the beneficiaries?
谁可以做受益人？
[8] Beneficiaries of a normal family trust usually include the persons establishing the trust together with children and/or grandchildren.
一般的家庭信托，受益人通常包括设立人及其子女和/或下一代。
How is property transferred to a trust?
如何将财产转给信托？
[9] Trusts are generally settled by the settlor giving a nominal gift to the trust of say $10.00. Once the trust has been established, other property may be transferred to the trust usually by way of a sale at current market value, for example a house. The trust will owe the purchase price to the vendors of the property who will usually commence an annual gifting programme to reduce the amount of the loan outstanding over time.
[10] Persons who are owed money by the trust, as above, can each gift $27,000 in each twelve month period in reduction of the amounts owed to them by the trust. Those gifts will be exempt from gift duty provided that the persons making the gifts are in a relationship of “natural love and affection” (e.g. parent/child) with the beneficiaries of the trust who are intended to benefit from the gifts.
[11] The process of annual gifting reduces the debt and over time effects the transfer of the asset value to the trust and out of the personal estates of the vendors of the property.
赠与的过程就是减轻“负债额”的过程，最终达到的效果是将“卖方”的个人净资产转到信托。
Should you do a new will?
[12] When creating a trust, the settlors should execute new wills which complement the trust and which, generally, leave any significant personal assets to the trust.
需要立一份新遗嘱吗？
设立一个信托，设立人需要同时立一份新的遗嘱，遗嘱和信托起到一个互补作用，同时通过遗嘱，将任何其它较具规模的个人财产纳入信托。
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