Jersey: A proven choice for trusts

There are a number of attractive and flexible structuring options for trusts, including:
  • Accumulation and maintenance trusts: Requires the trustee to accumulate the income of the trust for the future, but gives power for the income to be used in order to benefit (or maintain) any of the beneficiaries should the need arise (for example, to pay school or medical fees).
  • Fixed interest trusts/life interest trusts: Where the interests created are readily identifiable from the terms of the trust and will give rise to a particular beneficiary having a fixed entitlement to the income and/or capital of the trust property. The interests are usually fixed by time and by amount.
  • Discretionary trusts: A discretionary trust is most common and unlike a fixed trust, the trustee has discretion to decide the share of capital and income which each beneficiary will receive. It can provide more flexibility than a fixed trust; the trustees can respond to future circumstances as and when they arise and also take into account guidance through letters of wishes from the settlor.
  • Reserved powers trusts: Allows a third party to the trust (usually but not necessarily the settlor or other instigator of the trust) to retain certain powers in respect of the trust. These powers may deal with any aspect of the trust, ranging from how the trust’s assets are invested through to who may benefit from the trust and in what circumstances.
  • Purpose trusts: Trusts which are neither charitable nor for named/ascertainable beneficiaries, but for a purpose. The possibilities are virtually limitless, ranging from private family trusts at one end of the scale to those used in international financial transactions at the other. An enforcer is required to be appointed to enforce the terms of a trust in relation to its non-charitable purposes.
  • Charitable trusts: A Jersey trust is a vehicle frequently used for charities or to hold ‘orphan’ entities, both as discretionary trusts (see above) with a class of beneficiaries and as trusts having charitable purposes instead of beneficiaries.
  • Protective trusts: A trust where the interest of a beneficiary will be reduced or terminated if the beneficiary attempts to assign his rights as a beneficiary or becomes subject to some form of compulsory assignment (such as a bankruptcy order).

Flexible regulatory and legal environment

While all ‘professional’ trustees (i.e. generally those offering services to the public) must be regulated and licensed by the Jersey Financial Services Commission (“JFSC”), ‘private’ trust companies can avail themselves of regulatory flexibility such that they need not be regulated or licensed if they meet certain criteria. Any person having full capacity to hold and dispose of property may be a settlor or a trustee although typically SPV corporate trustees are popular.

A trust is a Jersey trust where the trust deed states that the trust is to be governed by Jersey law. It is not necessary for the trustee of a Jersey trust to be resident in Jersey (although if the trustee is resident elsewhere this may result in trust taxation in another jurisdiction).

Trustees are also protected under the Trusts Law in that their liability to a third party arising out of any transaction affecting the trust (save for breach) is limited to the trust property (provided the third party was aware the trustee was acting in that capacity).

Commercial uses for Jersey trusts include:

  • Employee benefit trusts/schemes
  • Pension funds
  • Investment funds and real estate holding vehicles (e.g. a unit trust)
  • To hold security over a borrower’s assets for the benefit of lenders under syndicated loans
  • As an ‘orphaning’ mechanism to hold assets ‘off balance sheet’, and in the creation of ‘bankruptcy remote’ structures

Benefits of Jersey trusts

The precise benefits of a trust will depend on the residence and domicile of the settlor and the beneficiaries (residence, essentially, means where a person lives, while domicile usually refers to where the person regards as his true home). Common advantages of putting assets into a Jersey trust include:
Privacy and confidentiality

Trusts are generally created by a private document to which the settlor and the trustees are the only parties. The trust instrument does not have to be filed with any public body or registered in Jersey and information relating to the trust is not accessible by the general public. There are however certain exceptions to this, in particular, beneficiaries of a trust may be entitled to financial information relating to the trust. Generally speaking, a trust arrangement can be regarded as highly confidential.

Asset protection

A trust is in many circumstances an effective way to legitimately segregate assets and liabilities, as once the assets are in the trust the settlor ceases to own them. Additionally, it can also provide protection from foreign claims based on, a lack of recognition of the trust, infringement of forced heirship rules (which don’t apply in Jersey) and personal relationships with the settlor. Trusts can also assist continuity of ownership for family assets, protection against profligacy of beneficiaries or family breakdown between the beneficiaries.

Wealth and succession planning

The Island offers fiscal neutrality for trusts established for non-Jersey resident beneficiaries and a trust can be of assistance in legitimate tax planning, particularly for those with international wealth. There is also no requirement that any government fees or duty be paid either on the creation of a trust or while it continues in existence. A trust is a flexible way to provide for the succession of family wealth without onerous probate formalities or costs and unlike a Will in certain jurisdictions, it is not a public document. Trusts can also assist with the management of indivisible assets from which a number of beneficiaries benefit.

Judicial, legal and regulatory certainty

Jersey is self-governed with a long tradition of political, legal and regulatory stability as well as close links with the EU and the UK. The Jersey Trust Law has been used as a model for similar laws in other jurisdictions. There is a substantial body of judicial authority interpreting the Trust Law and the legal profession in Jersey is well experienced in advising in relation to trusts where liability arises out of fraud, wilful misconduct or gross negligence.

Governance

Trustees are in a fiduciary position and must exercise their powers only in the best interests of the beneficiaries. The finance industry in Jersey is widely acknowledged as being capable with an excellent service ethos. There is a high quality of services available both to act as trustee but also to enable a trustee to seek financial, investment, tax and legal advice and provide complementary services such as banking.

Modern transparent jurisdiction

Jersey has a world class tax transparency framework as part of its commitment to combatting financial crime and tax abuse and complies with a number of global transparency and reporting standards across the globe.

Straightforward tax treatment

Where there are no Jersey resident beneficiaries, the trust is only liable to tax on Jersey source income and by concession, Jersey bank deposit interest is not treated as Jersey source income when received by trustees of a trust with no Jersey resident beneficiaries.

Flexibility

No forced heirship laws, an ability to appoint protectors for additional oversight over the trustee(s), no rules against perpetuities (i.e. a Jersey trust can exist for an indefinite period), ability to add assets/beneficiaries, retention of benefits/ powers by settlor, “flight” clauses (i.e. an emergency affecting trustees), can be expressed to be revocable or irrevocable and an ability to change the governing law of the trust from or to Jersey if it is valid under the other relevant foreign law.

Reduced political and instability risk

If the trustee and the assets are in a stable jurisdiction like Jersey, a trust can provide protection for a settlor who is based in a potentially unstable environment or politically uncertain jurisdiction with risks of exchange control or sequestration.

Foreign law protection

The Law provides that when considering questions relating to the trust or transfers of property to it, the court must apply Jersey law only and that no consideration should be given to any rule of foreign law. Any foreign claim based on a lack of recognition of the trust machinery will be ignored by the court. The Jersey courts can also have jurisdiction over ‘foreign trusts’ and related issues would be determined in accordance with the relevant foreign law.