The following template for a Private Living Trust declaration can be used by you and your spouse to replace your Last Will and Testaments, in order to lawfully avoid Inheritance Tax on your legal estates, upon your demise.
PRIVATE LIVING TRUST DECLARATION
by “The Names of the Grantor/Trustees”
Strictly Private & Confidential
This Private Living Trust was originally expressed verbally by and between ___________________and __________________on the __ day of the month of _________, in the year known as ______, which shall be considered by all concerned, interested and affected parties to be the date this Family Trust was formed.
1. THE INTENT OF THE GRANTOR/TRUSTEES
The Grantor/Trustees hereby declare that all property listed in Schedule A of this Declaration will be held in perpetual trust, solely for the benefit of the maintenance and education of the Beneficiaries named herein, until such time the Trust is terminated [if ever], in which case the property will revert back to the Grantor/Trustees, free and clear, or to the Beneficiaries in the event of the demise of both Grantor/Trustees.
2. APPOINTMENT OF GRANTORS AS TRUSTEES
The Grantor/Trustees hereby expressly agree and covenant, whether singularly or jointly, to act as a trustees, authorised representatives, agents, administrators and/or attorneys-in-fact, with full power of substitution to do the following:
a) endorse or otherwise sign, without liability, all documents and instruments of any type or nature, whenever a signature is requested or required for the purpose of authenticating the documents created and/or served in all activities between the Trust and other legal entities;
b) demand, collect, receive, issue receipts for, sue and recover all sums of money or other property which may now or hereafter become due, owing, or payable to the Trust;
c) execute, sign and endorse any and all documents, claims, bills, instruments, receipts, cheques, drafts or warrants issued in the event of any and all circumstances;
d) settle or compromise any and all claims, now existing or hereafter arising, against the Trust and/or any property granted herein or otherwise; and
e) file any claim(s) or take any action(s) or institute or take part in any proceeding(s), either in their own name or in the name of Trust or otherwise, at the Grantor/Trustees’ joint discretion.
In addition, the autograph and/or seal of the Grantor/Trustee on any instrument, license, permit or any document now existing or hereafter arising, upon which the name of the Trust is howsoever evidenced, is hereby the authorisation of the Trust.
The Grantor/Trustees may also open accounts, receive, open and/or dispose of all mail addressed to the Trust, and change any address to which mail and payments are to be sent. This power and the authority hereby conferred is irrevocable by any other party, remaining in full force and effect until terminated at the Grantor/Trustees’ joint discretion.
3. PURPOSES OF THE TRUST
a) The purpose of the Trust is to protect the interests being established by this Declaration and any subsequent DEED, the execution of which comprises the Trust’s authorisation for the Grantor/Trustees to execute any and all forms and/or other documents, including (without limitation) any and all financing statements, as and when deemed necessary, in order to ensure that the property of the Trust is protected and maintained for the maximum benefit of the Beneficiaries.
b) This Declaration also operates as an express undertaking by the Grantor/Trustees to fulfill all necessary fiduciary duties, including those expressed in section 2 of this Declaration. The Grantor/Trustees also warrant that they hold good title to the property hereby granted into the Trust, free and clear of all lawful liens and encumbrances.
c) Upon execution of this Declaration as a DEED, the property listed in Schedule A [a list of the property granted into the trust, which should be annexed to this document along with any subsequent deed] is subject to the private control of the Trust. The Trust also expressly covenants that the Grantor/Trustees will NEVER be held to be sureties, securities and/or accommodation parties for the Trust or any other legal entity doing business in its name(s).
4. SUBORDINATION TO THE CLAIMS OF THE GRANTOR/TRUSTEES
a) Any debts owed by the Trust to the Grantor/Trustees (if any), whether now existing or hereafter arising, shall have priority over any and all claims that third parties may raise against the property listed in Schedule A.
b) The Trust hereby expressly subordinates all claims against the Grantor/Trustees, upon any account whatsoever, to the claims that the Grantor/Trustees have or will have against the Trust (if any).
5. RIGHTS, RECOURSES & REMEDIES
Rights, recourses and remedies available to the Trust will be exercised in all venues and jurisdictions.
6. SEVERABILITY & WAIVERS
a) If one or more provisions of this Declaration are held to be invalid or unenforceable for any reason whatsoever, the remaining provisions shall continue to be valid and enforceable. If a qualified Court finds that one or more provisions of this agreement is invalid or unenforceable, but that by limiting such provision(s) it would become valid or enforceable, such provision(s) shall be deemed to be written, construed and enforced as so limited.
b) The failure to enforce one or more provisions of this Declaration shall not be construed as a waiver or limitation of the right to subsequently enforce and compel strict compliance with every provision of this Declaration.
c) The Trust shall not be deemed to have waived rights under this Declaration unless such waiver is given in writing and executed by the Grantor/Trustees. No delay or omission on the part of the Grantor/Trustees in exercising a right shall operate as a waiver of such right or any other right. A waiver of a provision of this Declaration shall not prejudice or constitute a waiver of the right to otherwise demand strict compliance with that provision or any other provision of this Declaration.
d) No prior waiver by the Trust, nor any course of dealing between the Grantor/Trustees and the Trust, will constitute a waiver of any of the rights conferred by this Declaration. Whenever the consent of the Grantor/Trustees is required under this Declaration, the granting of such consent in one instance shall not constitute consent over the whole.
7. INTERPRETATION & AMENDMENTS
This Declaration, together with Schedule A and any other duly authorised documents annexed hereto, comprise the entire understanding and intent of the Trust, as to the matters set forth herein. No alteration or amendment to this Declaration will be effective unless it is expressed in writing, sealed by the Trust and executed by the Grantor/Trustees.
8. HOLD HARMLESS & INDEMNITY BOND
The Trust hereby expressly agrees and covenants that it will hold harmless and undertake the indemnification of the Grantor/Trustees from and against any and all claims, legal actions, orders, warrants, judgments, demands, liabilities, bills, losses, depositions, summonses, lawsuits, costs, fines, liens, levies, penalties, damages, interests and expenses, both absolute and contingent, as are due and as might become due, now existing and as might hereafter arise, and as might be suffered/incurred by, as well as imposed upon the Trust, for any reason, purpose or cause whatsoever, except pre-meditated acts of fraud or gross negligence.
For the avoidance of doubt, the Grantor/Trustees shall not, under any circumstances, or in any manner whatsoever, be considered an accommodation party, or a surety, for the Trust.
9. JURISDICTION & DISPUTE RESOLUTION
The sole and exclusive jurisdiction for the resolution of all disputes and complaints shall be that of independent arbitration, subject only to the agreement of the parties to this instrument and in accordance with what is prescribed by this Declaration, unless otherwise agreed and appropriately expressed herein or as a duly authorised amendment by the Grantor/Trustees.
10. THE BENEFICIARIES OF THE TRUST
The beneficiaries of the Trust are:
[Add names of the Beneficiaries, who should include children and grandchildren of the Grantor/Trustees, if any, as well as the Grantor/Trustees.]
All information regarding the Beneficiaries shall be held as Trust property and treated as strictly private and confidential, unless otherwise agreed by the Grantor/Trustees in the interests of protecting their beneficial interests.
EXECUTED AS A DEED by ………………………… Grantor-Trustee,
On [Add date], at [Add place of execution]:
Autograph……………………………………………………….
In the presence of:-
Name……………………………………………………………
Mailing Location……………………………………………
Autograph……………………………………………………
EXECUTED AS A DEED by ………………………… Grantor-Trustee,
On [Add date], at [Add place of execution]:
Autograph……………………………………………………….
In the presence of:-
Name……………………………………………………………
Mailing Location……………………………………………
Autograph……………………………………………………
Schedule A
List all the property you wish to grant into the Trust, in a separate page, annexed to the Deed. This should include everything that would normally be bequeathed in a Will.
Please be aware that for such a deed to take effect, any existing Last Will and Testament of the Grantor/Trustees must be legally annulled by a solicitor.
The witness to the signatures on the Deed should also be witnessed by a Commissioner for Oaths.
