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Articles by Janet Xuccoa

Interest Rates: Latest Update & Commentary
Tuesday, August 03, 2010

 

As the Trustee Services Partner at Gilligan Rowe & Associates, I’m often asked by Trustees what we think is going to happen in the economy, the property market and with interest rates. We answer questions like this all the time as helping people make and protect their money is our business.

Matthew Gilligan is particular strong on these topics and there are many clients out there who thanks to his advice, did pretty well on the last lot of interest rates ups and downs.

The one million dollar question on the table at present is does a Trust fix its interest rates on its existing loans right now or not?

The last thing Trustees want to do is fix a Trust loan at a rate of say 7.25% pa and then rates move downwards the following month. Likewise, a Trustee will not be happy when they choose not to lock in their loans and find rates move upwards and against them and the Trust.

A couple of months back the answer to this one million dollar question would have been fairly clear. Now however, it really is a game of snakes and lizards and everyone is wondering which way they should roll the dice. Below are some tips that might just help you decide what to do with Trust loans.

The Reserve Bank and the OCR


In simplistic terms, the Reserve Bank’s main job is to establish and implement monetary policy. It does this by setting the Official Cash Rate (“OCR”) with an aim of controlling economic activity and inflation. How does this affect Trustees and Trust loans?

Well, again in very loose terms, Banks borrow money which they then lend on to us. Banks borrow money from several sources such as from overseas lenders, term deposit holders and of course, the Reserve Bank.

When a Bank borrows funds from the Reserve Bank, it usually does so at a rate around the OCR. When a Bank then lends funds on to us, it does so by putting a bit of a margin on those funds. So if a Bank borrows funds from the Reserve Bank at say 5% and if it adds a mark up of say 2%, we can expect that Bank to lend those funds to us at 7% or thereabouts.

Accordingly, when the OCR moves, it affects the wholesale rates Banks borrow funds at which in turn, affects the interest rates the Banks are prepared to lend money to us at.

When setting the OCR, the Reserve Bank looks about 2 years out. In other words, the Reserve Bank doesn’t just deal with what is going on right now in our economy when it sets the OCR. Rather, it looks about 24 months ahead and sets the OCR on what it expects is going to happen in the future.

In the last OCR review, which happened on 29 July 2010, the Reserve Bank set the OCR to 3%. The Reserve Bank said the economy might not grow as quickly as previously thought and inflation might not reach the heights it was previously expected to reach in 2012. What does this mean for interest rates?

If all was going according to the Reserve Banks prior expectations, the OCR would have risen to around the 6% mark by the end of 2012. That meant we could expected interest rates to be around the 9% mark by the end of 2012. But now that the Reserve Bank has brought back its expectations, it thinks the OCR will only reach 5% by the end of 2012. This of course means interest rates could come back a bit, to around the 8% mark.

So given the above information, does a Trustee fix or continue to float the Trust’s existing loans?


Floating Rates

If a Trust’s existing loans are on floating rates right now, you might as a Trustee, choose to continue along this path if you think New Zealand’s economy will be long and slow in growing. Of course if you hold this view, you’re be expecting interest rates to stay low and the OCR not to rise as quickly or as high as was previously envisaged. You will recall the Reserve Bank has recently indicated this.

As a Trustee you might also continue to float if you think the global situation (especially in Europe) will deteriorate. Why would you do this? Well a deteriorating global situation could lead to a decrease in the rates our Banks pay to pick money up off shore. If Banks have to pay less to get the moolah that they on-lend to us, then perhaps they won’t charge us so much for the pleasure of borrowing it off of them eg: fixed rates will come down.

If a Trust is in funds, perhaps it receives rental income for example, you may as a Trustee be intending to pay off some of the money the Trust owes the Bank on its existing loans. If this is the case as a Trustee you would probably also choose to float because if you fix the Trust’s loans, penalties may be incurred for making early repayments.

Fixed Rates

If you are thinking you might fix the Trust’s interest rates on its existing loans, you are probably of the mind that the International Monetary Fund growth forecasts will come true. Likewise, I expect you will believe the New Zealand economy is going to experience fairly rapid growth and inflation in the near future. You might be basing your Trustee opinion on the fact that the vehicle sales, dairy, forestry, education, exports and manufacturing sectors in our economy have grown and will continue to grow at a relatively quick pace.

Of course if you hold these beliefs, you will be expecting fixed interest rates to increase. As a Trustee wanting to do the best for the Trust’s Beneficiaries, you will be hoping to get in early so the Trust doesn’t have to suffer the rate increase later on. Hence, you are likely to fix the Trust’s interest rates now.

The Trust might also be in a financial position of being able to pay the additional monthly increase in payments it is going to experience if the rate is fixed now. I say this because if the loan is currently on a floating rate, the Trust is probably paying around the 6% pa mark. But if as a Trustee you choose to lock in the interest rates right now, you are most likely going to do so around the 7.0% to 7.3% pa mark. Consequently, the loan repayments will increase in size.

Of course the extra the Trust pays in loan repayments on a fixed rate might well be worth the peace of mind that is gained. Which is another reason why a Trustee might choose to fix their interest rates.

Look Left & Right Before You Jump

This heading says it all. Whatever you decide to do, get some information before you implement your decision. Do the numbers. Work out the figures. Check to see which alternative will be to the Trust’s financial advantage. Get help from someone independent. By the way, your Bank is not independent.

If you need help doing this financial check, then talk to us. Over the years we have helped thousands of clients with their Trust affairs. Of course a large part of our role is working out what is advantageous to clients from a financial perspective. This includes Trust clients and businesses and individuals.

So give us a call on (09) 522 7955 for a free chat. We’re here to help you.

 

 



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

 

 

 

 

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Family Trusts 101 Book
Wednesday, June 30, 2010

I’M TELLING ALL !

After plenty of anxious moments and sleepless nights, I’ve done it. Yes, I have written a Book. “Family Trusts 101” has finally been born.

Trusts are never easy creatures to understand but I think this Book should help all New Zealanders comprehend the creation and administration of Family Trusts. In a way, it’s a ‘go to’ Book.

If you’ve ever been confused or frustrated about how a Trust is supposed to operate or if you’ve ever wanted to know the in’s and out’s of a Trust, then this book is a must read for you.

I’ve spent many days and months using my little grey cells to bring you a Book written in plain English. It’s an easy read, packed with great examples which will demonstrate the points I’m making.

You won’t need any previous knowledge to understand this Book as I’ve made a massive effort to ensure it won’t bamboozle you with legal jargon. So a word of warning should be given. If you are looking for a concise legal text on equitable structures, coupled with judicial dictum and ratio decidendi, then this Book is not for you!

If however you want a guide on Trusts, which covers the following points, then you should seriously consider buying this Book:


  • How Trusts came to exist;
  • What a Trust can do for you;
  • Steps to take to place your assets into a Trust;
  • What a gifting programme is;
  • How Trustees should act;
  • What a Professional Trustee can and should do for a Trust;
  • Whether you need a Bank account;
  • If financial statements should be prepared for the Trust;


And so much more.

I really hope you love reading this Book as much as I loved writing it.

Of course, this is the first of many Books so any feedback you wish to give me would be much appreciated.

The cost of this Book is $29.95 + GST + postage. To order your Book NOW please CLICK HERE.

Happy reading everyone.

 



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.


 

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Gremlins Playing With Your Trust Deed
Thursday, June 24, 2010

GREMLINS IN THE TRUST DEED
As you can imagine, we see lots of different types of Trust Deeds here at GRA. Despite there being a variety of Deeds around, there are some common provisions we like in all our clients’ Deeds of Trust. One of these provisions relates to decision making. I’ve been talking about this particular issue for about two decades now. Some people have commented I’m seeing Gremlins where there aren’t any but now, finally, we have a High Court case to prove this particular point. Gremlins can exist and when they come home to play, they can cost you big money. Read on to ensure you and your Trust don’t fall into this situation.

THE CASE
I won’t recite all the facts but the bare bones of the case are as follows. A Trust decided it wanted to purchase and develop some land. To complete the purchase, it needed to borrow funds so it approached a lender. The loan was duly granted and the legal papers were sent to the solicitor who was acting for the Trust. The solicitor called the Trustees together to sign the legal loan papers.

This Trust had 5 Trustees in total but only three of the Trustees actually turned up at the solicitor’s office.

The solicitor put before the Trustees the loan papers and gave them an explanation of the documents. It seems from the evidence given that none of the Trustees really fully understood what documents they were signing. They certainly didn’t appreciate the fact that they would incur personal liability for the loan. One of the three Trustees even went so far as to say that he just ‘assumed’ the documents must be ‘all right’ because his co-Trustees were signing them.

The loan was duly taken out and the land was purchased by the Trust. Of course there wouldn’t be a case if everything remained okay. But like a lot of things in life, things didn’t pan out as planned. The loan repayments weren’t kept up and the lender ended up suing the Trustees. This is where things got really interesting.

THE JUDGMENT
Remember I told you there were five Trustees in this Trust but only three Trustees turned up at the solicitor’s office and signed the loan papers? Seems the other two Trustees didn’t ever sign those loan papers. But that didn’t make them any less liable. Why? Because of the Gremlins in the Trust Deed.

GREMLINS AT PLAY
At the beginning of this article I said there were certain provisions we like all Deeds of Trust to have. One of those provisions is Unanimous Decision Making. What does this mean? Simply this. All Trustees, yes every single one of them, have to agree to a transaction before it can go ahead. If agreement cannot be reached, the transaction cannot proceed. Most importantly, one or the majority of Trustees cannot bind all Trustees, including the Trustee/s that don’t agree with the proposed transactions.

Why is having a Unanimous Decision Making provision so important in a Trust Deed? Well in the words of Associate Judge Doogue “... if a majority makes a decision, it must be the case that the minority are bound by it in all respects. Otherwise ... those dealing with the Trust could be confronted with a situation where some of the owners of the Trust property would agree to executing securities affecting their properties ... but the minority could defeat the contractual objectives of the parties by declining to co-operate.”


In other words, where there is a Majority Decision Making provision in a Trust Deed, enabling the majority of Trustees to bind all Trustees, including the minority, those that dissent must expect to be bound. The minority Trustees will be contractually bound and legally liable as if they had agreed and had signed the legal loan documents.

GETTING RID OF THE GREMLINS
What can you do to ensure you don’t have a Gremlin in your Deed of Trust? Try calling us to start with. Then let us review your Trust Deed. If you are not one of our existing clients and you bring in your Deed of Trust, we will often see you free of charge.

When we review your Deed of Trust, we will look for other provisions that we think should be in the Trust Deed. Provisions that will protect you and the assets of the Trust.

Most importantly, we’ll be on the look out for the Gremlins we know can lurk in a Deed of Trust. Gremlins that can cause havoc amongst Trustees and Beneficiaries.

We all know prevention is usually easier that cure. Prevention frequently saves us emotional heartaches and most importantly, money. So take some time now and send us an email or call us and let us check your Trust Deed.

All the best.

 




Janet Xuccoa BCom, LLB
Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants
Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955
P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth. GRA are accountants who provide expert accountant advice both in NZ and offshore.
P.P.S. Check out our sister website, www.familytrusts.co.nz for more family trust information.

© Gilligan Rowe & Associates Ltd
Disclaimer: This article is intended to provide only a summary of the issues associated with the topics covered. It does not purport to be comprehensive nor to provide specific advice. No person should act in reliance on any statement contained within this article without first obtaining specific professional advice. If you require any further information or advice on any matter covered within this article, please contact the author.

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Family Trust Gifting: A Gift for you
Friday, March 12, 2010

Hello Everyone (Free gifting promotion has finished)

Well the New Year has well and truly started for us. In Trust Land we’ve conducted hundreds of Annual Trustee Meetings. Out of those ATM’s we found a common issue arose – Gifting. So I thought I’d talk a little about Gifting and hopefully remove all the confusion. 

Additionally, for those of you who didn’t know, my GRA Birthday is fast approaching. That special day where it all began for me as your Professional Trustee was 29 March 2005. So to celebrate my GRA birthday, we are going to give you a gift ourselves...

Read more about that at the end of this post.

Family Trusts: How to Gift

You cannot simply transfer your assets to the Family Trust. If you did this, the law would deem that you have made a gift and gift duty would be payable. So to avoid gift duty, you need to sell your assets to the Trust at market value.

When you do this, the Trustees will probably not pay you cash for the assets. Rather, they will give you an IOU, which is often referred to as a Deed of Acknowledgment of Debt. This Deed of Acknowledgment of Debt will record that the Trust owes you a particular sum of money for the asset it has just purchased from you.

The balance owed to you by the Trust under the Deed of Acknowledgment of Debt will be an asset in your hands and a liability to the Trust. To reduce down the credit balance owed to you by the Trust under the Deed of Acknowledgment of Debt, you need to gift.

The Process


Gifting is a process involving you annually forgiving part of the debt owed to you.

At law, you are able to forgive up to $27,000 per person, per year, without incurring gift duty. If you chose to forgive more than this balance, you will be liable to pay gift duty on the amount of the gift you have made over and above this $27,000 threshold.

The gifting process involves five steps: |

  • You as the Donor (the person making the gift) will sign a Deed of Partial Forgiveness of Debt and Gift Statements;
  • The Trustees as Donees (the people accepting the gift) also sign the Deed of Partial Forgiveness of Debt and a Trustee Resolution noting on behalf of the Trust their acceptance of the gift;
  • A copy of the Deed of Partial Forgiveness of Debt and the original Gift Statements are filed with the Inland Revenue Department;
  • The Inland Revenue Department stamps the Gift Statements and returns them to the person who prepared the documents; and
  • The stamped Gift Statements should be filed with the Trust’s papers and the Trustee Resolutions accepting the gift should be filed in the Trust’s Resolution Book.

Some people try to shortcut this process and only have the Donor sign the gifting documents. I think this is a dangerous practice as I believe you should be able to show that a gift has been made and accepted.

Why Gift?

Each time you gift you transfer in more wealth to your Trust and you transfer wealth away from yourself. Hence if a creditor attacks you personally and all the assets are in the Trust, those assets should be protected.

This means that should anyone bring a successful legal claim against you, they will not be able to satisfy their judgment against your personal assets as you will not own any assets of significance. Rather, it will be the Trust that will hold all the assets and all the wealth.

Of course having said the above, you cannot transfer assets to the Trust to avoid creditors that are already on the horizon. Additionally, the correct transfer process that I have previously discussed must have been undertaken. Most importantly, the administration of the Trust must have been carried out correctly.

Potential Problems

There are two problems I frequently see in practice. The first involves no gifting and the second involves incorrect gifting.

People often believe that once they have completed their first gift they either don’t have to gift anymore, or that their gifting will happen automatically. They are usually wrong on both counts.

If a credit balance is owed to you by the Trust, you need to keep gifting until that balance is eliminated. You also need to ensure that someone actually completes the gifting process. Often this will be a Professional Trustee.

If you do have a Professional Trustee you should ensure they prepare your gifting documents for you. They may for example think one of your other advisors is taking care of this. They may even forget. Accordingly, your gifting may become overlooked. To avoid this, simply diary out your gifting date and call your Professional Trustee or whoever is completing your gifting documents and prompt them.

Incorrect gifting is the second issue that can arise. This can occur when financial statements are not prepared and financial statement reviews are not completed.

Simply put, what happens when this issue arises is the balance recorded in the Deed of Acknowledgment of Debt that the gifting is based on, is not congruent with the balance noted in the financial statements.

This incongruence arises for different reasons, often because the Trust has given back funds to the Settlors. Accordingly, the credit balance owed to the Settlors is less than that shown in the previous year’s gifting documents.

When financial statements are not prepared and the annual financial statement reviews are not completed, the issue never becomes identified and lays dormant. Identification only occurs when an individual or a Trust is questioned or attacked. That’s when the problem is highlighted and comes home to roost.

Of course this can be avoided if you make sure the Professional Trustee does their job and ensures annual financial statements are prepared and carries out that all important annual financial statement review.

Summary

I hope the above shines some light on Gifting. As you can see, it’s a really important part of gaining asset protection and has to be completed correctly.

Failing to have your Deeds of Acknowledgment of Debt contain the all important Hawkins and Entrenchment clauses can undo all the good work gifting brings about. Not gifting from the correct balances recorded in financial statements just creates havoc with the gifting programme. Taking short cuts with the preparation of the gifting documents themselves doesn’t pay.

So if you are going to set up a Trust and put assets into it to gain asset protection, take care to correctly complete your Gifting.

Our Gift To You (Free gifting promotion has finished)

To help celebrate my GRA birthday here is our Gift to you:

We invite all clients and prospective clients who do not have their annual gifting documents currently prepared by GRA, to take advantage of this gift.

Let us complete your first years gifting for absolutely nothing. Yes that’s right - completely free of charge. If we do this for you, it could mean you save several hundred dollars. 

As with all offers there are a couple of conditions...

First, your Deeds of Acknowledgment of Debt have to be up to date and in a form acceptable to us. Secondly, we must prepare your gifting documents for the 2011 and 2012 years at our standard fees. By the way, those fees are $200 + GST per person per gift. 

Lastly, this offer is only available for a limited time. 

So, don’t look a gift horse in the mouth! Contact me now by email or telephone and take us up on our Gift. By the way, with all the money you are going to save through this Gift, remember to send your Professional Trustee a Birthday Card – she’ll really appreciate it (hint!)

All the best.



Janet Xuccoa BCom, LLB
Professional Trustee Services

Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

 

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Annual Trustee Meetings (ATM): Explained
Wednesday, February 03, 2010

Hello Readers

I hope you’ve enjoyed your Christmas break and are now fully rested, ready to tackle the New Year.

Usually most of us have some spare time at the beginning of a new year and I recommend some of this time being used by Trustees to conduct an Annual Trustee Meeting (“ATM”). An ATM is our way of of taking care of your Trust to protect you, your family and your future.

So what exactly is this and how does it help the Trust?

Well, Trustees have a duty at law to annual review the affairs of the Trust so by holding this Meeting they are satisfying their duty. Additionally, this meeting will go a considerable way to ensuring the successful operation of the Trust and can be instrumental in avoiding a Trust failure.

The Value of an ATM

To demonstrate how an ATM can help a Trust, let’s take the example of Mr and Mrs Boiler. They were the Trustees of the Boiler Family Trust which contained the following assets:

  • Family home;
  • Shares in Boiler Orchard Limited; and
  • $47,000 in cash on term deposit.

When I looked at this Trust it initially appeared to be in good health. But it soon became apparent when reviewing the financial statements and talking to the Trustees that the assets of the Trust were under threat. You see the liabilities of the Trust had increased in the last two years. I wanted to know why that was.

The Trustees told me that the Trust’s orchard business had done well over the years but in the preceding two years a large supermarket had come to town. When this occurred, the town’s population purchased all the goods they needed from the supermarket. T

This meant the produce the orchard produced wasn’t selling and what was selling had to be sold at a heavily discounted price. As a result, the Trust had suffered losses in the last two years and had to increase its Bank borrowings just to serve debt.

I was not the Professional Trustee of this Trust but Mr and Mrs Boiler had come to me for advice. I immediately recommended the orchard be sold. It was a case of selling in an orderly fashion or in another year, having the Bank foreclose and sell. The latter option was not attractive. A sale proceeded and financial disaster was avoided. 

Lessons

What’s interesting about this case is if this Trust had a Professional Trustee who had conducted with their co-Trustees an ATM, two things would have been identified.

First, the news that the supermarket was arriving in town would have been aired.

Secondly, the Professional Trustee would have considered this broadcast and discussed the need to sell the orchard business. The Professional Trustee would have given this advice because it would have been clear what was going to happen.

Hopefully, all Trustees would have agreed to sell the business and the need to increase debt would have been avoided. Overall, the Trust would not have suffered the loss it did as the Trustees could have taken action much sooner than what they did.

I hope you can see from the above example the value in holding an ATM.

ATM Checklist

At the Meeting several points should be addressed. These are as follows:

  • Trustees should identify and discuss the objectives of the Trust and determine whether those objectives should be carried on in the forthcoming year;
  • A schedule of assets and liabilities of the Trust should be completed and analyzed. Trustees should in particular discuss how well the investments are performing and how comfortable they are with the level of debt the Trust is carrying or exposed to.
  • Trustees should check the assets of the Trust are well maintained and if maintenance is necessary, should make a list of what is required and who will be instructed to carry out maintenance out.
  • All insurance policies for the assets of the Trust should be checked to ensure insurance cover is adequate and policies are held in the A report by the Professional Trustee on their findings of the Financial Statement Review they have undertaken should be given to all other Trustees.

The above list of points is not exhaustive but merely suggestive. This is because the matters discussed at each Trust’s ATM may differ depending upon the nature and objectives of the Trust.

Lastly and most importantly, once the ATM has been completed, the Minutes of the ATM should be prepared and signed by all Trustees.

Those Minutes should contain the decision the Trustees have unanimously made regarding whether or not to retain the current assets of the Trust given the nature of those particular assets and taking into account the objectives the Trustees have. In my experience, this task is best carried out by the Professional Trustee.

I hope this information spurs you on to holding an ATM. As always, if you have any queries, would like a review of your Trust or need help, just contact us.  A review of your Trust and structures may end up saving you money and a lot of heart-ache.We work by phone, email or skype for your convenience.

Best wishes for the New Year.



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

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Christmas Message From The Professional Trustee
Friday, December 04, 2009

Christmas is always a time for celebration but in my book, it’s also a time for reflection and some forward thinking. "What did the year bring and what will the New Year look like?" are often questions that cross my mind as I see one year out and another year roll in.

This year, we’ve all been touched by the global events that have faced our world. New Zealand is not an island that stands outside the global economy and we have truly felt the effects of the global recession at home.

The majority of our markets, including retail, property, tourism and exports have all taken a bit of a hit. The labour market has definitely felt the effects of the global recession and we all know how the finance / credit market has tightened and affected us personally and our businesses.

They say however, that every cloud has a silver lining and I think this is true with respect to the global recession we’ve all faced this year. Out of emergences, better people and better processes emerge. We set about the subject of learning and we start to think about how we can manage our lives, our households and our companies more effectively and efficiently. Often, we emerge and find ourselves in a much stronger position simply through having to focus on how to survive and build a better, stronger future.

Additionally, we frequently ask ourselves what makes us really happy. This is a very interesting question because it usually involves not only having enough assets and money to do the things we want to do, but it also encompasses having great relationships with our family and our friends. And to build those relationships we need time. So once again, we look at where and how we spend our time and how we can achieve closer relationships with those that we love whilst at the same time, meeting our work and business commitments.

As the Professional Trustee here at GRA I’ve seen lots of good things this year. In particular, my fellow Partners and I have pushed really hard to dig deep and gain an in-depth understanding of our clients’ needs and wants. This work has lead to us completing over 128 presentations throughout New Zealand in 2009 and to us developing some innovative products and services that have assisted our clients with the issues they have been facing. Some of these new products will be released next year and I just know our clients are going to find them very instrumental in helping them achieve their financial goals.

One of the biggest highlights for us as a firm and for me personally as the Professional Trustee, was being awarded the prestigious Corporate Trustee of the Year Award by the New Zealand Trustees Association. This was the first time in the history of the New Zealand Trustees Association that an award like this had ever been given to a Corporate Trustee and we took it home!!! That made me incredibly proud. And a little bit of pride is a good thing in my world because it makes us continually strive to deliver top notch service to our clients.

Unfortunately, I’ve also seen my fair share of friends and clients feeling pain and stress this year. Some of our clients’ businesses have been adversely affected by the recession and some have even suffered personal relationship problems. One person close to me didn’t cope well with the pressures the recession brought at all and sadly isn’t celebrating Christmas with any of us this year.

As a firm and as the Professional Trustee, we do our utmost to help clients when they face really difficult times and we try hard to help them make decisions in their lives that will either solve their issues or at the very least, help minimize their pain. As a human being I really sympathise and empathise with people who face difficult problems. I’ve lived long enough and been though enough life experiences to know that hardship can strike each and every one of us without warning.

So, I guess this year I can say I’ve seen the great tapestry of human life. I’ve witnessed the good and the bad. Throughout the year however one thing has remained constant in my mind. This one thing has come up time and time again when I have been presenting and meeting prospective clients.

Many people when they are enjoying life and events are going their way, do not pause to consider what could occur if life was heading in the other direction – southwards. As a consequence, they fail to keep their eye on the ball. They forget to strategise and plan and take steps to protect what they have worked so hard to achieve and gain. As a result by the time the horse has bolted from the stable and they are faced with difficult times, it is too late to put a plan into place.

So the one thing that I urge everyone to do over Christmas is take a moment. Think about this ...

Have you done all that you can do to put your affairs in order?

Have you taken every step you can take to protect your assets?

Do you have an up to date estate plan?

Have your written your “Letter” that I’ve blogged about?

Have you sat down with us and spoke to us about your forthcoming year, your goals and aspirations and asked us how you can legally minimize your tax liabilities?

Have you had a meeting with us to discuss how you might get ahead financially?

A half hour discussion with us could be the difference between maximising your life and the economic opportunities available to you, or not.

The last thing I ask everyone to do over their Christmas break is enjoy and savour each moment. Think about giving and serving your family and friends. Be thankful. It may well be true that not everything has gone as planned this year in your life. Things may have been a bit hard and in certain cases, downright difficult. But there is a new year to plan for and if you have friends and family around you then you are very rich indeed in love and support. It’s these things I believe that give us genuine happiness and satisfaction.

On behalf of the Trustee Services Team and the Professional Trustee I want to take this opportunity to wish all of you the very best for Christmas. Christmas is meant to be a time for pure delight so fill each moment with joy and cheer. Savour this special time. Have fun with each other and have happy and safe holidays. Remember, it’s the memories that we create that we look back on. So, ensure the memories you are building are happy ones that you will be glad to treasure and pull out in the future and relive.

As always if you need assistance over the Christmas break you can contact myself, Janet Xuccoa, by telephoning 021 479 630 or you can telephone our offices on (09) 522 7955 and leave a message on our message service. This service is monitored. Lastly, you can send me an email on jx@gra.co.nz. When I’m not dealing with Santa and his Elves I’ll be monitoring my emails so will respond to you. Alternatively, you can call Juliette Egden, our Trustee Services Manager on 09 550 8054.



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

 

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Women And Money
Tuesday, November 24, 2009

AccountantsIn the last couple of weeks I’ve been honoured to be able to speak at a couple of events, attended exclusively by women. These events focused on issues relevant to women such as maintaining a “work-life balance”. 

I of course spoke about the issue of women keeping their eyes on the ball and looking after the moo-lah.  No one in their right mind would ever ask me to discuss a subject such as “work-life balance”. 

On occasions I’ve even had to look up the words to check their spelling so you can imagine I’ve got no conception of what the phase actually means.

Although in saying that, I did get a bit of balance in last night when I indulged in some Christmas cheer with a few of my own girlfriends.  We got around to discussing what had occurred at the women events I’d presented at and they suggested that I write a blog setting out my own thoughts about a couple of issues that had come out of these presentations.  This seemed an excellent idea after two glasses of red and by the time morning came around, the idea had stuck.  So here I am putting pen to paper.

Before we start, I want to be sure I’m shot by the Policitially Correct Squad so I’ll make this declaration up front:  the points I am raising in this blog can equally apply to both sexes and the views I am expressing are my own, based upon my own observations gathered from about 2 decades of practice.

So ... on the subject of money, here’s some things I’ve noticed over the years that are pertinent to women:

1.         Relationship With Money

Women often have a strained relationship with money in my view.  I’m not saying they don’t understand money.  What I’m saying is they seem to fall into two distinct camps.  They either really take the trouble to get to grips with the subject of money, where it’s coming from, where it’s going, money goal setting, investing, etc or they simply refuse to get their heads around the subject. In other words, there seems to me to be two mindsets – those that are truly interested in money and think of it as an essential economic good that they need to know about or those that adamantly refuse to deal with the subject at all.

Men on the other hand don’t appear to me to fall into two such distinct groups.  They might or might not be interested in the subject. They might or might not be good at managing money. They seem however not to have such strong feelings about the subject of money as I see women having.  In other words, they are much more laidback and ambivalent about the topic.  Summing it up, money for men doesn’t appear to be an emotional topic for them at all.

Of course the type of relationship women have with money affects how they actually deal with the commodity.

2.         Discussions About Money

This is a really biggie.  It affects not only how women deal with their own money but all sorts of other subjects, such as asking for a raise at work or asking their spouses what is going on in the money affairs department.  Women frequently seem to be backward in raising the subject of money. For some reason they seem shy and uncomfortable about discussing the topic. 

By way of an example, a women I spoke with last week was about to permit her boyfriend of 6 months to move into her home.  He had two ex-wives and 4 children.  She had no idea of what he earned, what assets he owned, what his commitments were to his wives and children and what money he would be contributing to what would become their joint household expenses.  When I asked her if she would be discussing these points with him, she said she ‘didn’t like to’. 

Now I just don’t get this.  She was about to permit someone to get really closely involved in her life and she didn’t have a clue as to what he was about financially.  That is just plain scary in my books.  How can you start to build a lifetime commitment with someone that you can’t discuss the subject of money about? 

Men I’ve noticed don’t seem to have much trouble talking about the green stuff with either their prospective partners or their employers.  As a result, they frequently get to grips with the views that their spouses and employers have on the subject and they then make decisions about their own behaviour accordingly. 

Of course not being able to raise and engage in a discussion about money leads women to either taking or advocating control of the coin which can have some really startling consequences.

3.        Working With Money

I guess it goes without saying that if a person isn’t interested in the subject of money and doesn’t feel comfortable discussing money then they aren’t likely to really work with money.  What I mean by this is that they will not feel comfortable asking questions and challenging another person’s viewpoint about what should be occurring with the moo-la.  Unfortunately, women often fall into this category. 

To illustrate my point I want to discuss the case that recently came across my desk, involving Jillian.  Her husband was running a bookshop which actually did pretty well financially. They always managed to pay their mortgages and they enjoyed a reasonable standard of living.  Jillian had always left the running of the business and their money to her husband saying he had everything under control.

Her husband wanted to get ahead as he put it and so he wanted to buy another bookshop.  Trouble was it would involve them getting a very big loan.  But Jillian didn’t want to appear unsupportive so she didn’t question him about things and just signed the loan papers that were put before her. 

She did feel a little uncomfortable about them borrowing such a large sum of money to buy the 2nd bookshop and she wasn’t that happy at the time at having to put their home up as security but she nevertheless went along with things.  She even gave a personal guarantee for the borrowings herself. 

They went ahead and purchased the 2nd bookshop but despite her husband’s best efforts, the business still wasn’t making money after 7 months of trading.   As luck would have it however, a distant relative died around this time and left Jillian $80,000.  Her husband suggested that Jillian put in the inheritance she had just received to help the business along and Jillian, again not wanting to appear unsupportive, agreed. 

Things just got worse.  Month by month the business lost more money.  The loans were unable to be repaid.  Jillian’s husband took action and did sell the 2nd bookshop but the sale proceeds they got were not enough to pay back the loans.  So he then sold the 1st bookshop they owned.  But still there was a debt left owing to the Bank.  So they then sold their home.  Of course being in a downward market, the house didn’t realise as much as they hoped and there was a debt left over that had to be paid back to the Bank. 

As you can imagine all these events put enormous pressure on their marriage and Jillian and her husband separated.

As if this wasn’t bad enough, letters from the Bank started to arrive demanding repayment of the money that was still owing.  Jillian went to the Bank and explained the situation. The Bank whilst being sympathetic told her that she would have to pay them and that if she didn’t, they would sue her under the personal guarantee that she had given.

Of course Jillian had no money and no assets and so that is exactly what happened.  The Bank sued and then bankrupted her. 

Jillian through not wanting to deal with the issue of money had lost her home, her ½ share in the 1st profitable bookshop and her inheritance.

4.         Responses To Money Troubles

In my previous lifetime I use to head up a team at a Bank.  One of the functions of that team was to deal with customers who were defaulting on their loans.  And this is where it gets really interesting.  When the loan was in a joint name, it was usually the women who picked up the telephone and called to find out what was happening and how the problem could be worked through. 

From the couple of years work that I did in this capacity I had to draw the conclusion that when money troubles were on the horizon, women were more inclined to take the bull by the horns and move into ‘clean up mode’ as I though of it. 

I never really did come to understand why it was the fairer of the sexes that tried to sort things out when they’d gone bad especially given the fact that these very same women weren’t at all involved in the decision of where the money went in the first place.  Perhaps this is just one of the mysteries of life I’m going to have to live with. 

The point that I’m making however is women are good at cleaning up money issues but frequently woeful at dealing with the set up of the monetary situation.  If they were more involved and better at the inception of the money decisions, the money troubles may never come home to roost.

5.         Solution

Millions of books have been written about it and loads of money has been made from the subject over the years.  It’s called “Communication”.  That’s the only solution to dealing with money.  Quite simply, you have to sit down with yourself and explore how and why you feel a particular way about the subject.  Then, assuming your financial future is tied up with a nearest and dearest, you have to get down to the nitty gritty, take a deep breath and talk to your spouse about the subject.  You can do it in a non-threatening way. You don’t have to argue about the subject.  You can even agree to disagree.  But you do have to talk.

Once you’ve explored your reaction to the subject and your spouses reaction, you have in my opinion, a really good base from which to grow.  You see a little acorn of knowledge can lead to the growth of a whole tree.  And whilst you’re busy planting, you will start getting comfortable about the subject.  Which in turn will lead you to asking questions and finding out more about the fruits of the tree, including how to look after what the tree is producing.  Which leads me to my last point.

For all those women either in business themselves, or those who have their financial future tied up with their spouse who is involved in business, ensure you get good advice.  You don’t have to put all your assets at risk.  Nor do you have to lose all your assets, including your inheritances, if the business goes bust.

An ounce of prevention is worth a pound of cure.  Get advice.  Get protection.  Get the right structure.  Look at what amount of money is being borrowed and by what entity.  Think about and decide who should be directors and shareholders.  Review who is going to give personal guarantees.  Seriously consider putting in place general security agreements in favour of yourself.  In all circumstances, understand what is going on and feel comfortable about what you are legally agreeing to.

Your goal in life is to minimize your exposure and to protect what you have built up.  Don’t let your own feelings of being uncomfortable about the subject of money be your downfall.  Get advisors around you who help you feel relaxed about the subject.  And if someone is trying to make you feel inferior or unsupportive or just plain incompetent about the subject of moo-la, then take a step back – that’s their issue not yours.

The only dumb question in life is the question you don’t ask.  So as always, get the right people on the bus, sitting in the right seats to help you. And of course it goes without saying, I’m one of those people who are happy to help you.  I

I’d much sooner be pro-active and help you plan your financial future than be the ambulance at the bottom of the cliff, cleaning up the damage.  So if in doubt, please request an interview or contact me.



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

 

 

 

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Who's On Your Bus?
Wednesday, November 11, 2009

Life has a great way of teaching us lessons and one big lesson I’ve learned is this - if you get the right people on the bus, sitting in the right seats, life just flows a whole lot easier.  So, what’s this lesson got to do with Trusts?  Well simple really.  If you are going to set up a Trust, then you should do it once and do it right.  Usually this means calling in the specialists who can give you appropriate advice, pertinent to your particular circumstances.

 
In my book a task that a specialist will always have is to ensure their knowledge is up to date.  After all, you don’t build a rocket ship using old technology so why would you help a client build a foundation for their financial affairs, working from outdated knowledge?
 

Lots of professionals forget this and they fail to do their bedtime reading much to the detriment of their poor clients. Sure we are all busy but we need to keep up to date and if that takes us a few hours reading a week then so be it.

 
Which brings me to the whole point of this blog.  A court decision was released early this year.  Since its release there has been substantial debate and much written about what the decision means in the legal beagle world.

One particular point from this case however seems to have been overlooked and I think this point is really crucial to all those who have Trusts.


The Facts

 
Mr R was the Settlor of a Family Trust.  Mr W and Mr H were the Trustees.  The Trust purchased a property which we will call the 1st Property.  In order to be able to afford to buy this property, the Trust borrowed from the Bank and Mr R gave the Bank a personal guarantee for the borrowings.  A little while later the Trust sold the 1st Property to Mr R. Mr R then entered into an Agreement on behalf of the Trust to purchase another property for the Trust.  We’ll call this the 2nd property.  In order to buy this property, the Trust would have to borrow very heavily.  Mr R then decided to sell the 1st Property but he didn’t manage to achieve a sale until after the Trust had completed the purchase of the 2nd Property and until after he had been declared bankrupt.

 

The sale proceeds derived from the sale of the 1st Property went towards satisfying the Bank borrowings which had been raised in order to purchase the 2nd Property.


The Argument


Before we start on the legal argument, I need to tell you about someone called an Official Assignee or “OA” for short.  This is a person who legally steps into your shoes if you are declared bankrupt.  They will be entitled to run your affairs, sell your assets and pay off your liabilities.  There are some strict rules about what assets they can sell and what liabilities they can pay.  Overall, the main aim of their game is to liquidate assets to repay creditors.  In my view, anyone facing the prospect of bankruptcy should immediately seek professional advice,  before they visit an OA’s office.

 

Back to the argument of this particular case.  The OA said the Trust had not been well administered and was a sham or was the altered ego of Mr R.  Of course what the OA wanted was the 2nd Property, which consequently was the only asset the Trust owned.  If they could prove the Trust was a sham and the 2nd Property really belonged to Mr R, then they would be able to seize the property, sell it and apply the sale proceeds to repay the creditors.

 

The Legal Decision

The case was initially heard by the High Court who dismissed the OA’s claim.  Then the OA appealed to the Court of Appeal who also dismissed the appeal.  In other words, the OA plain ran into a brick wall with its claim that the Trust was a sham or the altered ego of Mr R.

Lessons For Us To Learn

Irrespective of the great specialists sitting on your bus, no one wants their bus to have to travel to Court.  Going to Court is an expensive exercise and I don’t just mean in monetary terms.  Litigation is emotionally draining and because it can take a couple of years to get through a case like this, it can really take its toll on not only the bank balance but also the human relationships you are involved with.  So as my old grandmother use to say ... an ounce of prevention is worth a pound of cure. 

What this means for us is that we need to take steps to avoid accusations that our Trusts are shams.  And we don’t just take steps to avoid sham trust allegations so that the Trust assets stay safe.  We take these steps to avoid personal liability.  Remember ... Trustees are personally liable and you don’t want other Beneficiaries suing you if you lose the assets of the Trust.

So what specific steps can we take to avoid sham trust allegations?  Well here’s 9 things you can do to ensure your Trust is ship shape and up to date:

1.       Review financial statements prepared for the Trust against the Minutes, Resolutions, Deeds and Agreements you are holding on the file you have for the Trust.  If you don’t have financial statements, get them.  They are the backbone to any Trust and are surprisingly inexpensive for Family Trusts.

2.       Make a list of any Resolutions that are required and complete these.  Usually you will at the very least have year end resolutions to prepare and execute.

3.       Ensure all loans made by yourself to the Trust and those made by other parties to the Trust are evidenced in Deeds of Acknowledgement of Debt and Variable Interest Loan Agreements.  It goes without saying the Deeds need to have Hawkins and Entrenchment clauses in them to protect these loans from being called up by say a Creditor or the OA..

4.       If the Trust has made a loan to you, look to see if a Deed of Offset is appropriate, offsetting what the Trust owes you against what you owe the Trust.  This could help for example in reducing the balance the Trust owes you personally, consequently reducing the number of years it takes for you to gift.

5.       Check to see if your gifting is up to date and that you are gifting off of current balances.  Look at the financial statements in this latter respect.

6.       Ensure all the Trust Registers are current.  This includes the Registers for Professional Contacts, Assets and Liabilities, Beneficiaries, etc.

7.       Go over the Estate Plan.  Is the Memorandum of Wishes and Wills up to date given your present circumstances?  Does it have all the necessary clauses?  Look at my previous blogs or talk to me about this is you have any doubts.

8.       Have a look at insurances.  Is your life insurance policy assigned to the Trust?  If not, get hold of your broker and get it sorted.  Is there enough insurance in place?  If not, talk to a broker about your needs.

9.       Write a Plan For Death – see my previous blog on this particular subject for guidelines. 

Get A Professional Trustee On The Bus

Sometimes, despite our best intentions, we just don’t get round to doing the things we know need to be done.  Even if we have the time, some work is better done by the specialists.  So, if you need a hand putting into effect the above 9 steps, now is the time to put a Professional Trustee on your Bus.  And if you already have a Professional Trustee sitting on your bus, now is the time to put them to work.

As always, if this Professional Trustee can help you, please contact me.  Have a great month and enjoy the build up to Christmas.



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

 

 

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Recession, Relationships & Family Trusts
Wednesday, October 14, 2009

Dear Clients & Friends,

Recessions bring about all sorts of changes. For example, in the legal world  people stop purchasing houses, so lawyers often run out of conveyancing work.

Conversely, money starts to get tight so people start to sue each other. This of course means extra litigation work for the lawyers.

Recessions can also bring about some pretty dramatic personal life changes. For instances, people can be made redundant which in turn, creates financial pressure. Often sadly, this pressure spills over into their personal relationships.

Sometimes, facing financial pressure can bring a couple closer as they bury down in the trenches together. But often, the strain can lead to a couples’ relationship breaking down. When this occurs, people separate. We know this because in ordinary times about 42% of Kiwis do just that – separate.

When a couple separate they usually divide up their assets. If their assets have been placed in a Trust the inevitable question arises: What happens to the assets in the Trust? This question is of great importance because when a relationship breaks down, there can be a lot of fighting happening and frequently the only thing left standing is “The Trust”.

An Ounce of Prevention is Worth a Pound of Cure

First, before assets are placed in a Trust, all individuals should obtain good legal advice. This is absolutely essential in my view because when assets are moved from an individual to a Trust, an individual’s property rights are affected.

Secondly, the legal advice obtained by the parties will usually include a very strong recommendation for the parties to enter into a legal Property Relationship Agreement. Again, in my view, this is essential because it will set out the basis for future reference. Should a relationship breakdown after the assets have been transferred through to the Trust, this Agreement will become invaluable.

The individuals will be saved a huge legal bill as they will not have to go to Court to argue over the assets. Additionally, and most importantly, those same individuals will not have to suffer the enormous emotional burden going to Court places on a person.

Thirdly, an actual Agreement should be entered into between the parties. This seems almost a moot point considering we have just discussed the absolute need for the Agreement but you would be surprised how many people talk about getting an Agreement but never actually do it.

The Agreement, if prepared and executed, is likely to set out a variety of matters including an acknowledgment of what assets belong to each of the parties before those assets are transferred to a Trust. It may also set out what will happen to those assets when they are transferred through to a Trust should the parties ever separate.

Lastly, if an Agreement has been entered into by the parties and assets have subsequently been transferred to the Trust then the issue is pretty easy. This is of course providing the Agreement stated what was to occur should the parties ever separate. The Agreement is just placed before the Lawyers and hopefully everyone can agree to implement what the Agreement says.

In the normal course of events what this means is the assets of the Trust are sold, loans are repaid and the balance of the sale proceeds are put into the Trust’s bank account, ready for division between the parties.

Often at this point in time the existing Trust is made into one of the individuals own Trust and another Trust is set up for the other remaining party. So in effect, each of the parties ends up with their own Trust.

Then half the sale proceeds are sent to the new Trust and the other half of the sale proceeds simply remains in the existing Trust (which was previously turned into one of the individuals Trust).

Two is Better Than One

It’s no secret that many smart people have two trusts. One each. Each Trust will hold its own assets and frequently a half share in the family home. Why have two Trusts rather than one? Again the answer is simple. If you have two Trusts you have the ability to deal with property that was solely your own before it went to the Trust. This could include family heirlooms.

Also, your own Trust can be the recipient of any inheritances you might receive, such as money from your own Parents. Overall, having your own Trust means you can deal with the assets in the Trust as you and your Trustees wish. You can do this without the consent of your spouse (assuming they are not your Co-Trustee).

Lastly, a very large advantage of having your own Trust is you then have the ability to leave particular assets to specific beneficiaries such as children you had prior to your relationship.

As mentioned above, another great benefit of having two Trusts is that both Trusts can own a half share in the family home. When two Trusts are involved they are also very likely to have entered into a legal Agreement which would have set out the steps to be taken if the parties ever separated.

So overall, a two Trust structure is frequently far superior to one. You do have to be aware that you will have double the set up and running costs of course, but this disadvantage can be far outweighed by the benefits a two Trust structure can confer.

When You Dont Prepare...

Here’s where all the trouble begins. The parties don’t ever enter into a legal Agreement and cannot agree on what is to happen with the assets that are in the Trust.

When this occurs only the lawyers win as the battle royale begins and legal fees start to mount. When I see this happening I call both clients. I try to give them a bit of a reality dose. This includes reference to the movie “War of the Roses”. If anyone has ever seen this movie we all know who the winners are and that is the Lawyers. A couple can spend literally thousands of dollars in legal fees as they fight over the assets of the Trust. Let’s face it ... a house worth say $500,000 isn’t worth a couple spending $100,000 on legal fees fighting over.

Often, when you look at what is really going on, the individuals aren’t fighting over the house at all. They are fighting because they are hurt. The trouble is, that fight costs lots and lots of money if it goes on for a long period of time. It is also emotionally draining.

I’m not advocating that an individual shouldn’t engage lawyers when and where they are needed. All I’m saying is a little common sense needs to prevail in these situations. As a Professional Trustee I try hard to calm the parties and seek some form of agreement that I can send through to their Lawyers.

But if you can’t get an agreement, then what happens? Well the matter just has to go to Court. Which means the Courts look at how the Trust was established, how the Trust has been run over the years, who has control of the Trust, what assets have been transferred to the Trust and what loans the Trust owes back to the individuals.

Other matters can also come under scrutiny but in the main, these are the points the Courts will look at. Once the Courts review the matter they may make a variety of Orders. These can include putting an independent person in to run the Trust (act as a Trustee) as well making a monetary award.

I guess there are 3 main points to take from this article.

1. Get great Trust advice when setting up a Trust from a professional who really understands asset protection, estate planning, tax minimization and financial accounting. Get the very best advice you possibly can.

2. Seriously consider a two Trust structure and if you do decide to go down this route, make sure both Trusts have a legally binding Agreement as discussed above.

3. Get good solid legal advice and enter into a legal property relationship agreement.

Remember, if you want your assets to be protected, use a Trust. But do the right thing ... get the right advice, from the right people and chose the right Trust structure to ensure that asset is truly protected.

If you would like advice about setting up or reviewing a family trust, please contact us for a free interview.  The best time to put structures in place is now.

Thank you for reading this,



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.

 

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Dad, Where's My Inheritance?
Tuesday, September 08, 2009
AcccountantsAn interesting case has recently been handed down from the Courts. This case now provides Parents with the rights to strip their children of inheritances.

The judgment goes against what was previously believed good law.

To date, we have all thought that parents owe a duty to their children to provide for them in some way upon their deaths. The Courts have been littered with cases where children have brought claims against the estates of their parents when their parents failed to leave them a little something...

By and large the Courts have been sympathetic and have awarded children something out of their parent’s estates, even, in some cases, stating parents have a duty to provide for their children, irrespective of the child’s age.

Well that reasoning may go by the board if the latest case is anything to go by.

The Case

The case goes something like this. Dad, mum and two daughters lived happily together but when mum died and left her estate to dad, the two daughters fought over the estate. The result was the daughters ended up with $56,000 whilst dad received $20,000. The ultimate outcome however was the daughters fell out with their dad. This is a huge cost – far more than the money involved that’s for sure.

Dad decided that he would place his affairs with the Public Trust and so he completed a Will in which he left nothing to his daughters. He also left instructions with the Public Trust that they were not to tell his daughters about his death, his funeral or his Will.

Dad’s statement to the Public Trust went along the lines that his daughters gave him nothing, not even respect and that is what he intended to give them on his death - Nothing.

When Dad died the Public Trust actioned his instructions. Herein lies the problem. No death notice was published. The Public Trust did however advertise for creditors of the estate to come forward but none ever did. This is standard policy when dealing with a personal estate.

The Public Trust did not inform the daughters and the estate, valued at circa $250,000, was passed to his de facto partner, in accordance with the Deceases wishes expressed in his Will.

The eldest daughter, learned of her father’s death, about two years after the event. Two years is a long time in legal beagle land and time had run out for her and her sister to lodge a claim against her father’s estate. This however didn’t deter her. Instead, she sued the Public Trust, citing they had a legal duty to advise her of her father’s death. If she won the claim, she would likely received approximately $62,000.

The Judgment

The Court however didn’t quite see the daughter’s side of the story. Instead they issued a judgment stating that executors (the Public Trust in this particular case) did not have a general duty to inform potential claimants about a death or even a general duty to advertise for claimants. Rather, executors have a duty to tell a person only when they know that person wishes to make a claim. So, executors have to have actual knowledge of a potential claim rather than pre-supposing someone might make a claim.

The Court finished up by saying that the Public Trust did not have actual knowledge that the daughter would make a claim and therefore, was not liable.

Lessons for Us All to Learn

So what does all this mean for parents and children?

Well to start with, we want all families to play together and stay together. The emotional cost of falling out with each other is huge.

Secondly, we would like to see all assets held in a Trust not in a person’s personal name and personal legal capacity. Why? Because Trust assets can be passed from Trust to Trust meaning they can be passed from a parent’s Trust to a Trust established for their children upon that parent’s death. This protects those assets from creditors and the Official Assignee and of course, negates gift duty.

Thirdly, everyone should have an up to date Memorandum of Wishes. This document will tell your surviving Trustees what you want done with the assets of the Trust when you are dead.

Lastly, everyone should have a current Will which deals with the assets that you do actually hold in your personal name at the time of your death, such as tools, jewellery, etc.

Of course, asking your parents what they intend to do with your inheritance is often a difficult subject to broach. A way of opening up this type of discussion with your parents is to tell your parents what you intend to do with your own assets for your own children. Alternatively, you could always watch our DVD on the subject with your own parents and discuss the matter after looking at the DVD. It can be a difficult topic of conversation but there are ways to handle it and as always, open communication is the best policy.

One of the lessons to be taken from this case is if you want to protect the inheritances you are going to receive from your parents and if you want to protect the inheritances you intend to leave to your own children, ensure you take action.

Don’t leave assets in your personal names but put them into Trust and ensure you have current Memorandum of Wishes and Wills in place. Also make sure you have a good discussion with your parents about the topic and get them to transfer their assets to a Trust, later to be transferred on their death to your own Trust.

As always, if I can be of help with any of these conversations, just let me know. You can request an interview for a no obligation and confidential chat.



Professional Trustee Services
Gilligan Rowe + Associates Ltd
Chartered Accountants

Learn more about Janet
Email: jx@gra.co.nz
Ph: +64 9 522 7955

P.S. Did you like this article? Go ahead and sign up to our free newsletter and receive tips, updates and useful information to help you protect your assets and grow your net worth.  GRA are accountants who provide expert accountant advice both in NZ and offshore.

P.P.S.  Check out our sister website, www.familytrusts.co.nz for more family trust information.





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