Trust (Right) – Wikipedia

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A Trust Is one of the living in the legal sense [first] Or for the death [2] created legal relationship, [3] if assets have been separated in favor of a beneficiary or for a specific purpose and the bound management of a trustee has been subordinate. [4]

The right of trust regulates the rights and duties of the persons acting in the trust. The definition of what a trust represents is naturally difficult, ” Like an elephant, a trust is difficult to describe but easy to recognise. ”(German:“ Like an elephant, a trust is difficult to describe, but easy to recognize. ”) [5]

The trust is a unique legal institute, as it was developed by courts of equity law (equity) in the countries of the common law and adopted with some changes to other countries. [6]

The trust right and the trust itself emerged in England during the 12th and 13th centuries at the time of the crusades. The origin should be in the feudal period.

The feudal landowner who took part in a crusade needed a suitable and reliable administrator of the goods during his absence, which also had sufficient representation and disposal power. This was regulated in the context of a legal relationship by the feudal property owner of his property [7] To an administrator (Trustee) transferred with the binding edition to transfer this property back to the former owner after his return. The previous owner of the goods participating in the crusade became the beneficiary (benefit) from the arrangement. A good friend of the Feudalherrn was preferred as a trust tea.

At that time, however, English law (Common law) did not know any legally enforceable claim (Writs) to re -transmission of ownership based on such a legal relationship. If the trust tea therefore refused to re -transfer the property, the previous owner (benefit) could not sue this. With a petition to the Lord Chancellor (Court of Chancer), the former owner could achieve that a decision was still made of law and equity. This was the origin of equity case law in English law.

The original purpose of the trust has come loose over the centuries from the family law basics and the trust can be found in many manifestations today.

  1. The assets of the trust provides a separate special fund [8] and is not part of the personal assets of the trust tea;
  2. The rights in relation to the assets of the trust are in the name of the trust tea or to another person in representing the trust tea.

The trust is a legally independent assets without obtaining legal persons (see also the independent fidgety in Liechtenstein).

In its capacity, the trust tea can complain or be sued. [9] The qualification of the trust as a special fund separated from the trust tea also results: [ten]

  • that the personal creditors of the trust tea cannot access the assets of the trust;
  • that the assets of the trust in the event of insolvency or bankruptcy of the trust tea is not part of the assets of the trust tea; [11]
  • that the assets of the trust is neither part of the marital assets nor the estate of the trust tea;
  • that the assets of the trust can be emphasized if the trust tea has mixed up with his personal assets with violation of the commitments resulting from the trust or sold the assets of the trust. However, the rights and duties of a third party who has the assets of the trust are still subject to the law determined by the collision standards of the state of the called Court.

Similar legal figures in other legal systems [ Edit | Edit the source text ]

Similar to the trust, such exclusive legal relationships were found and found in other legal systems. So z. B.:

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The purpose of the trust can be general or include the favor of certain people.

Description (English) Corresponding (German) Characteristics
Settlor founder provides assets for the trust.
Trustee Loyal/drinking owner/trust manager Owner and (bound) administrator of the trust capacity.
Beneficiary beneficiary Receives the services from the trust in accordance with the trust certificate.
Protector Protector, surveillance organ Monitors compliance with the commitments of the trust tea.

Task of those involved in the trust [ Edit | Edit the source text ]

Settlor [ Edit | Edit the source text ]

The settlor trustor , grantor , donor or creator , [twelfth] In other national legal areas too founder ) is the person who enables a trust through the provision of an assets.

The settlor can be an irrevocable ( irrevocable ) Trust [13] justify or a revocable ( revocable ) Justify the trust. [14] In the event of a revocable trust, the settlor will continue to receive access to the trust capacity. [15]

Depending on the legal system according to which the trust is built and regulation in the trust certificate, the settlor can continue to be entitled to the administration or not. After the Anglo-Saxon idea of ​​a trust, the settlor is generally not entitled to any administrative or control rights after the foundation.

Trustee [ Edit | Edit the source text ]

The trust tea has the authority and obligation to manage, use or dispose of the trust in accordance with the trust provisions and the special obligations imposed on it. The trust tea becomes the owner with the assumption of the obligation from the trust certificate ( legal ownership or title ) of the trust capacity.

The commitment of the trust tea of ​​managing the trust in accordance with the trust provisions is its main obligation. The actions of the trust tea must be aligned and measured by this obligation. The trust tea therefore has comprehensive account of its work. If the trust goes down or if the trust tea is lost, the benefit may request the return of appropriate assets to the trust. [16] The trust tea can also be a legal person in some legal orders (see e.g. Private Trust Company).

The fact that the founder reserves certain rights and powers or that the trust tea itself has rights as beneficial is not necessarily in the way of the existence of a trust. [17]

The trust tea is primarily committed to the beneficiary after the direction of trust and generally does not have to protect those of the settlor.

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Due to the elimination of all trustees, the trust does not go under if the settlor has not expressly determined in the trust certificate that only a very specific trust tea can be used.

Beneficiaries (beneficiary) [ Edit | Edit the source text ]

The beneficiary is the person favored from the trust. The promotion can already be done with the transfer of assets or only with the death of the settlorine.

The settlor can use itself or any other natural or legal person as a benefit.

The benefit of the benefit beneficiary title ) aims both on the services they are entitled to from the trust capacity as well as on the dutiful administration of the trust through the trust teas. The right to information about the conditions in the trust towards the trust tea is generally entitled to everyone. Exclusion of information or accounting obligations is generally not permitted. However, there may be a temporal limitation if the beneficiaries are not yet individualized ( black hole trust ).

The benefit from the trust certificate or recognition of the claim by the trust tea becomes a material owner of the corresponding trust capacity with the claim.

Protector [ Edit | Edit the source text ]

The protector is ordered by the settlor to monitor compliance with the commitments of the trust tea in accordance with the trust certificate (Trust Deed). The Protector’s powers are to be carried out in detail in the trust certificate.

The Trusturen ( Trust Deed ) is signed by the settlor. It records the transfer of assets, as well as the basic provisions regarding the administration and maintenance of the trust capacity in favor of the benefit used.

The trusted customers (Trust Document), who are disclosed to the beneficiaries, include all documents that are required to enable the beneficiaries to control the trust tea. [18]

The “Letter of Wishes” are to be distinguished from the trust certificate.

In a separate certificate, the settlers can write down its intentions regarding the establishment of the trust, the exercise of the mandate of the trust tea, the behavior of the beneficiaries, etc. These Letter of Wishes are not legally binding, but serve the trust tea to interpret the trust certificate in the sense of the wishes of the settlor.

Like the trusted customers, Letter of Wishes are fundamentally disclosed, provided that they are legally relevant. However, it is sometimes considered permissible if the settlor expressly excludes this disclosure. [19]

Through the Rule against perpetuities It is to be prevented that there are long -term assets accumulating in the long term, which means that this assets are largely or in the long term (similar to the Fidei committees). [20] The Rule Against Perpetuities therefore limits the opportunity to build a trust on a longer period of time. [21] After that, the assets of the trust must be divided into the beneficiaries (except for the Rule Against Perpetuities are certain non -profit trust).

However, the Rule Against Perpetuities does not apply in Liechtenstein law. [22] In teaching, it is partially derived from this that a trust in the Anglo -Saxon, which was built under Liechtenstein, cannot (should () be legally established), since an essential prerequisite for the effectiveness of the trust in the Anglo -Saxon area is transferred.

National law [ Edit | Edit the source text ]

The trust is basically subject to the (national) law chosen by the founder. In order for the choice of law to occur effectively, it must be expressly or clearly result from the provisions of the revocation certificate. If necessary, an indistinct choice of law must be interpreted according to the circumstances of the case. [23]

The national law regulates the validity of the trust, the effective transfer of the trust capacity into the trust, the interpretation of the trust certificate, the effects and the management of the trust. In particular:

  1. the appointment, resignation and dismissal of Trustee, the ability to act as a trust tea and the transfer of the tasks of a trustee;
  2. the rights and duties of trustee among themselves;
  3. to transfer the right of trustees, the perception of their duties or the exercise of their powers in whole or in part;
  4. the authority of Trustee to manage the assets of the trust, to dispose of it, to justify security rights or to acquire new assets;
  5. Trustee’s powers to make investments;
  6. Restrictions on the duration of the trust and in relation to the authority to form reserves from the income of the trust;
  7. the relationships between the Trustees and the beneficiaries, including the personal liability of the Trustee towards the beneficiaries;
  8. the change or termination of the trust;
  9. the distribution of the assets of the trust;
  10. The obligation of Trustees to take account of their administration. [24]

If the applicable (national) law cannot be determined by interpretation, the trust is subject to the law of the nation state, with which it has the closest connections. When researching the law with which the trust has the closest connections, it can be taken into account:

  • the location of the administration of the trust, as it was referred to by the founder; [25]
  • the option of the assets of the trust;
  • the place of the habitual stay or the establishment of the trust tea;
  • The purposes of the trust and the places where they are to be fulfilled. [26]

A state or its courts and authorities can generally disregard the trust or provisions of a trust if the application of these provisions of public order (Ordre Public) contradicts. [27] How a trust is treated for tax purposes always results in the respective national regulations. [28]

European law [ Edit | Edit the source text ]

According to the case law of the Court of Justice of the European Union (ECJ) in the P-P-PANYI LASS [29] can fall under the freedom of establishment of the TFEU if they actually pursue an economic employment purpose. [30] Trusts then fall under the term “other legal entities” of public or private law within the meaning of Article 54 (2) TFEU. This if the trust is a unit that, according to the national law, has rights and obligations that allow it to appear in legal transactions regardless of the lack of a special legal form, and to pursue the purpose of the employment and the activity of the trustees in relation to The ownership and management of the assets of the trust is inseparably connected to the trust and consequently forms an indivisible whole with the trust. Under these circumstances, such a trust can be seen as a unit that, according to the national law, has rights and obligations that allow it to act as such in legal transactions if an economic activity is actually carried out.

The EFTA Court of Justice also came in the so-called Snow chicken (also Olsen decision [thirty first] ) The result that Trusts can generally rely on the freedom of establishment from the EEA contract.

Requirements for the legal establishment of the Express Trust [ Edit | Edit the source text ]

In principle, three requirements must be available for the legal construction of the Express Trust:

  • The will (intention) of the trust founder must be clearly expressed (CertaAnty of Intention),
  • Precise determination of which objects should be part of the trust capacity (CertaAnty of Subject Matter),
  • Precise determination of the beneficiary or understandable restriction to a certain group of people (CertaAnty of Beneficiaries).

In the Anglo -Saxon area there are a variety of manifestations of the trust, which were further supplemented by the transfer to other legal orders. In addition, different names are used for very similar trusts without differentiating. The manifestations of the trust also overlap in many ways. Austin W. Scott has found: » the number of purposes for which trusts can be created is as unlimited as the imagination of the lawyers «. [32]

  • Asset protection trust [33] (Through the Asset Protection Trust the assets should be protected from creditors and the proliferated beneficiaries used).
  • Blind Trust (At a Blind Trust If the beneficiaries are not known at the beginning, new ones can also be added later).
  • Complex trust The trust tea can be in Complex trust Spread the existing or newly adding assets or collect in trust beyond a tax year. The Complex Trust can also exist for charitable purposes. The tax deduction for charitable gifts is usually permitted (cf. Simple trust ).
  • Constructive trust (Arises if a person is entitled to a fortune or takes possession of it under certain circumstances and becomes apparent from the outside that this person holds the assets for others. Constructive Trust is regularly created without a trust certificate or the last will, but in fact from the circumstances. [34] The special obligations of the trust tea result from the fact that the assets are held for other people).
  • Discretionary trusts (The favorite of the beneficiary is only described in the trust certificate and not precisely defined. The trust tea may have significant influence to narrow down or expand the circle of the beneficiaries).
  • Dynasty trust or Generation-skipping trust (Family trust is created as normal Express Trust, but the beneficiaries are not the children of the settlor, but the grandchildren).
  • Express trust (The Express Trust arises from the transfer of assets by the settlor and the assets are taken over by the trust tea. The most important sub -forms of Express Trust: Testamentary Trust, Inter Vivos Trust, Unit Trust and Purpose Trust. Contrast to the Express Trust are the Resulting Trust or the Constructive Trust ).
  • Fixed trust (The circle of the beneficiaries is precisely limited, the trust tea cannot expand or only narrow or narrow this circle of the benefit or only slightly; Fixed Interest Trust called).
  • Freezer trust (Only surpluses to the beneficiaries are released from the trust).
  • Grantor trust The Grantor trust Mostly serves the interest of one or more beneficiaries, partly of the Grantor / Settlor itself. Often the Grantor / Settlor has a partial or complete right of cancellation and / or change for the legal basis of the trust, in particular with regard to the favor. The Grantor Trust is generally not a legal person under tax law (not himself taxable). The term Grantor trust is used ambiguous (see also below Revocable trust ).
  • Hybrid trust (The Hybrid Trust Combines elements of the Fixed trust and the Discretionary Trust ).
  • Inventive trust
  • Inter vivo trust or living trust (Trust that is built during the lifetime of the settlor).
  • Irrevocable trust (The trust is irrevocably built with just a few exceptions to the revocation).
  • Investments trust (Investors buy shares in assets and receive transferable shareholders and thus a right to the benefits from the trust capacity. In contrast to the normal Trust is provided by a variety of investors here.).
  • Offshore trust (The Offshore Trust In close words, every trust that is built according to a different legal system is the one who is subject to the settlor. In the further word of the word is a Offshore Trust one denoted one that is put on in an offshore finance place).
  • Private trust (Favored of the trust are precisely individualized people or a group of people. Contrary: Public Trust ).
  • Protective trust (With the Protective Trust It should be prevented that the beneficiary of the beneficiary or this himself can access the services or claims of the trust he is entitled to).
  • Public trust or charitable trust (Favored of the trust are an indefinite group of people. The Trust has a public / charitable purpose. Only by selecting by the trust tea is a complainable claim of the beneficiary against the trust. In contrast: contrast: Private Trust ).
  • Resulting trust (The Resulting Trust arises if the transfer of assets to the trust tea has been legally effective, but the trust itself cannot be built or the trust can no longer be achieved).
  • Revocable trust (Due to the Settlor / Grantor at any time revocable trust – therefore also simplified as Grantor-Trust designated).
  • Simple trust or Bare trust (Only the USA: The only task of the trust tea is to convey the claims of the beneficiaries from the trust within a tax year. The trust tea therefore manages the trust only passively: contrast: Special trusts . The simple trust cannot only exist for fulfilling charitable purposes (see above Complex trust ) and in this regard, no tax deduction is usually not allowed in this regard).
  • Special trust (Only USA: The task of the trust tea is actively managed to manage the trust. Contrary: Simple trust ).
  • Spendthrift trust (Instead of the performance from the trust on the beneficiaries, the Spendthrift Trust if a beneficiary is unable to manage his assets (e.g. with a wastewater)).
  • Standby trust or Pourover trust (The trust has no function during the lifeguard of the settlor and the assets are only transferred into the trust with the death of the settlor).
  • Statutory trust (The Statutory Trust arises from law. Example: Standby trust or Pourover trust ).
  • Testamentary trust or Will trust (Trust, which arises with the death of the settlorine due to the arrangement in his will or because of his last will).
  • Unit Trust (collective financial investment, the settlors are also beneficiaries).
  • Voting trusts (Joint exercise of the voting rights of shareholders through a trust tea in their favor. The right to vote is transferred to the trust tea).

How the construction of the trust, the ongoing income and expenditure of the trust as well as the benefits to the beneficiaries are treated for tax purposes, is not regulated internationally. Rather, it depends on the type of trust as well as the tax situation of the Settlor and the benefit.

Taxation in Switzerland [ Edit | Edit the source text ]

The trust itself is not the subject of taxation (tax subject). The control consequences are worn by the settlor and the benefit. Since trusts can be designed very differently, the following overview only provides a first overview of the control consequences. [35]

Art des Trusts Establishment Distributions Liquidation
Revocable Trust no impact Gift on benefit, gift tax depending on ratio settlor <> beneficiaries Like distribution
Irrevocable Fixed Trust Gift tax (depending on the ratio settlor <> beneficiaries) Income and asset taxation in the benefit; Share of capital gains tax -free Only income taxation in the benefit of the benefit
Irrevocable Discretionary Trust [36] Gift trust in benefit, gift tax depending on ratio settlor <> beneficiaries Income taxation in the benefit of the benefit, payment of trusting assets tax -free Income taxation in the benefit of the benefit, repayment of trusting assets tax -free

The trust is not a legal relationship between the settlor and trust tea or the beneficiaries (Benficiaries). Differentiation:

  • to the contract
    • There is no contractual relationship for the transfer of assets between the settlor and trust tea,
    • The trust can also be justified by the Settlor by the ability to separate the certificate of faith, since no contractual relationship with the trust tea is necessary to justify the trust. Therefore, the transfer of assets is not a gift.
  • to the donation
    • The beneficiaries derive their right and claim directly from the trustworth in accordance with the instructions in the trust certificate.
    • The trust tea is formally not enriched by the transfess assets. The grant forms a special fund, the distributions of which are materially due to the beneficiary.
    • To justify the trust, no trust tea has to accept the assets.
  • to order
    • An contractor is not the owner of assets as the trust tea is.
  • to the pledge
    • The deposit is not agreed in favor of third parties
    • The deposit remains the owner of the deposit, the storage or a pledge only has the possession.
  • To usufruct / fruit enjoyment / usage
    • The owner has no independent right to manage the matter.
  • to society
    • The trust has no legal personality (legal person),
    • The shareholders have rights against each other. The beneficiaries of the trust have no legal relationship with each other, from the claim in the trust itself.
  • To the foundation
    • The trust has no legal personality,
    • The foundation is aimed at one purpose (fulfillment of the foundation’s purpose), the trust on the favor of certain persons,
    • In some cases, beneficiaries have no complaint,
    • The foundation does not necessarily have to have customizable beneficiaries.
  • to the institution private law (Liechtenstein)
    • Private law institution has legal personality, can members, partners or shareholders and can have broken capital in shares.
    • The founder has a much weaker function at the private law institution than the trustee in the trust (for example, continuous instructions are possible in the institution by the founder to the management and also an arbitrary resolution).

The legal institute of the trust is partially assumed that

  • Hein Kötz: Trust and trust. A comparative representation of the Anglo-American trust and functional institutes of German law. 1st edition. Vandenhoeck & Ruprecht, Göttingen 1963.
  • Schiemann, Christoph: The US trust as a testament replacement business and instrument of estate planning presented with special consideration of the right of the state of Florida . 1st edition. Grin Verlag, Munich 2003, ISBN 3-640-18378-9.
  • Raimund Behnes: The trust in Chinese law. A representation of the Chinese Trust Act of 2001 against the background of the English confusion law and the right of the fiducial trust in Germany. 1st edition. de Gruyter, Berlin, New York 2009, ISBN 978-3-89949-636-9.
  • Mike Wienbracke: Trusts in Germany. Civil law – tax law . 1st edition. Springer Gabler, Wiesbaden 2012, ISBN 978-3-8349-3401-7.
  1. ↑ Inter living . The trust can generally be built orally or in writing. Many national legislation prescribes if the subject of the assets or land form the fact that the trust must be established in writing. For example in Liechtenstein in accordance with Art 899 PGR.
  2. ↑ The cause of death . The establishment of a trust by a last will (for example through a will) must generally be valid by the national provisions about the last will.
  3. ↑ A trust can also be established by judicial decision, insofar as this is intended in the right of a nation state. See also Art 20 Para. 1 Convention on the law to be used on Trusts and about their recognition. Completed in the Hague on July 1, 1985. In addition, shortened as HAAGER TRUST AVEUTION designated.
  4. ↑ See Art 2 Para. 1 Hague Trust Convention.
  5. ↑ Hayton in Hayton/Kortmann/Verhagen, Principles of European Trust Law, in: Law of Business and Finance, Band 1, The Hague 1999, S. XIII.
  6. ↑ See preamble HAAGER TRUST ARE.
  7. ↑ Right: “Owner -like position” or “owner -like law”: Estate in Fee Simple. See also: Landlord and Tenant Law (England and Wales)
  8. ↑ Hayton/Kortmann/Verhagen, Principles of European Trust Law, in: Law of Business and Finance, Band 1, The Hague 1999, S. 13.
  9. ↑ The trust itself cannot be sued in the absence of legal persons.
  10. ↑ See also Art 11 Hague Trust Convention.
  11. ↑ The separation of trusting and trustee assets regarding enforcement is an essential element for domestic recognition and the function of the trust.
  12. ↑ In the USA.
  13. ↑ This is also in so -called Irrevocable Discretionary Trusts (The favorite of the beneficiary is only described in the trust certificate) and Irrevocable Fixed Interest Trusts (Favored people are precisely individualized in the trust certificate).
  14. ↑ Revocable Trusts become irrevocable trust with the death of the settlor, provided that the right of withdrawal is not entitled to another person or the death of the settlor is transferred to them.
  15. ↑ The binding transfer of property rights is determined in many national legal systems for the transfer of the tax burden, which is associated with this assets. The transfer of ownership must be properly based on the legal provisions of the corresponding legal system.
  16. ↑ But see, however, to be withdrawn.
  17. ↑ Art 2 last paragraph HAAGER TRUST ARE.
  18. ↑ See for many: Underbill and Hayton in Law Relating to Trust and Trustees 16 , 2003, p. 677; And, Oakley in Trends in Contemporary Trust Law , Oxford 1996, S. 52.
  19. ↑ So: Underbill and Hayton in Law Relating to Trust and Trustees 16 , 2003, S. 681 f.
  20. ↑ See also §§ 2044, 2109 BGB.
  21. ↑ For England see, for example: Law of Property Act (1925).
  22. ↑ Klaus Biedermann, The trusteeship of Liechtenstein law, presented on its model, the trust of the common law: taking into account the law regarding the trustee , Verlag Stämpfli & Cie, 1981, pp. 143, 159 ff
  23. ↑ See also Art 6 Hague Trust Convention.
  24. ↑ List according to Art 8 Hague Trust Convention.
  25. ↑ A sub -area of ​​the trust, in particular its administration, may be subject to another rather than the trust.
  26. ↑ See also Art 7 Hague Trust Convention.
  27. ↑ See also Art 18 Hague Trust Convention.
  28. ↑ See also Art 19 Hague Trust Convention.
  29. ↑ C-646/15 of September 14, 2017.
  30. ↑ Trusts pursue a purpose if they have no charitable or social purpose and have been built to ensure that the profits from the assets of these trusts benefit the beneficiary.
  31. ↑ Connected legal issues E-3/13 and E-20/13.
  32. ↑ The scope of the trust is only limited by the creativity of the lawyers . English original quote after: Rainer Becker: The Fiducie of Québec and the Trust: a comparison with different models of fiducian legal figures in the Civil Law , Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149138-2, p. 46.
  33. ↑ In the USA as well as Protective Trust designated.
  34. ↑ The Constructive Trust is therefore often as legal fiction or Fingerter Trust Described and serves as a catch fact. Partly similar to the company of bourgeois law for circumstances similar to corporate law.
  35. ↑ You can find out more in: Swiss tax conference, district letter No. 30 of August 22, 2007 and Federal Tax Administration (ESTV), district letter No. 20 of March 27, 2008
  36. ↑ If the settlor is taxed in Switzerland, they are treated like ‘Revocable Trusts’, see Swiss tax conference, district letter No. 30, Section 5.1.1.2
  37. ↑ See, for example, from different perspectives: NZZ, ” Blur traces with offshore trust “, Online edition of March 8, 2009, Swiss Tagesanzeiger,” Trusts as compensation for cracked banking secret? “Online edition of March 12, 2009.
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