Gabael Trust v2

Tag: Attorney

  • Revocation of Wills

    [vc_row][vc_column][vc_column_text]A Will is an essential and one of the simpler forms of estate planning tools. It is a legal declaration by a person of their wishes or intentions regarding the disposition of their property after death.

    The provisions of a Will are not cast in stone. They can be amended or updated from time to time in order to reflect a person’s changing life circumstances using a codicil (written amendments to a will). A Will can also be cancelled or revoked altogether.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What is Revocation of a Will?

    Revocation of a Will refers to the process cancelling or annulling a Will. A Will can only be revoked or cancelled by the person who created it (the testator) at any time before their death.

    Additionally, a Will can only be revoked while the testator is alive and has the mental capacity to do so. Once the testator has passed away, the Will cannot be revoked or amended in any way.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What does the law provide on Revocation of Wills?

    Revocation of Wills in Kenya is covered under section 17, 18 and 19 of the Law of Succession Act.

    Section 17 of the Law of Succession Act provides that:

    “A will may be revoked or altered by the maker of it at any time when he is competent to dispose of his free property by will.”

     Section 18 of the Law of Succession Act provides for the voluntary revocation of Wills. It provides that:

    “Save as provided by Section 19, no will or codicil, or any part thereof, shall be revoked otherwise than by another will or codicil declaring an intention to revoke it, or by the burning, tearing or otherwise destroying of the will with the intention of revoking it by the testator, or by some other person at his direction.

    A written will shall not be revoked by an oral will.”

    Based on section 18 above, a written will cannot be revoked by an oral will. It can only be revoked by another new Written will.

    Involuntary revocation of Wills is stipulated under Section 19 of the Law of Succession Act. Section 19 provides that:

    A will shall be revoked by the marriage of the maker; but where a will is expressed to be made in contemplation of marriage with a specified person, it shall not be revoked by the marriage so contemplated.”

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    What are the forms of Revocation of Wills?

    Based on the above legal provisions, a Will can be revoked in the following ways:

    1. By executing a subsequent will:

    If a person executes a new will, it automatically revokes all previous wills and codicils (written amendments to a will).

    For avoidance of doubt, it is common practice that the new Will explicitly states that all other previous Wills and Codicils made by the maker of the will are revoked. This would ordinarily appear in the Will as indicated below;

    “I revoke all former wills and testamentary dispositions made by me”.

    1. By physical act:

    A Will can be revoked by cancelling, tearing, burning or destroying it with the intention of revoking it.

    1. By operation of law:

    A Will can be revoked by operation of law in the case of a new marriage by the maker of the Will unless it is made in contemplation of marriage as provided in section 19 of the Law of Succession Act highlighted above.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What are the consequences of Revoking a Will?

    Once a Will is revoked by the testator, it automatically ceases to exist. In the event the testator dies without making a subsequent Will, his or her properties will be distributed to his or her beneficiaries in accordance with the laws of Intestacy (when someone dies without leaving a valid will) as provided under the Law of Succession Act.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    How can we help?

    Gabael Trust Corporation Limited has established itself as a ‘go-to-firm’ that provides premier estate planning services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Will.

    We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs and we welcome you to take advantage of our excellent, professional and cost-effective services.

    [/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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  • Updating of Wills

    [vc_row][vc_column][vc_column_text]It goes without saying that creating a valid Will is very important and should be done at the earliest opportune time.

    Once you create your Will, its provisions are not cast in stone. Your Will can be updated from time to time to incorporate any changes in circumstances or major life events.

    Before updating your Will, it is advisable that you consult your lawyer or trusted estate planner to ensure that you follow all the formal requirements prescribed in law.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    When should I update my Will?

    The Law of Succession Act in Kenya provides that a person can update their Will at any time as long as they are mentally competent to do so.

    Proof that the amendments to a Will were made as a result of coercion, fraud or when a person was under the influence of drugs or alcohol may lead the amendments to be declared void.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    Why should I update my Will?

    A person should update their Will when there is a significant change in their personal or financial circumstances. Some common reasons for updating a Will include:

    1. Marriage or divorce;
    2. Birth or adoption of a child;
    3. Death of a beneficiary or executor of the Will;
    4. Change in assets or liabilities;
    5. Move to a different country; or
    6. Change of mind regarding distribution of assets.

    It is important to regularly review and update your Will to ensure that your final wishes are accurately reflected and your assets are bequeathed as per your wishes and intentions.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What are the formal requirement of updating my Will?

    The Law of Succession Act in Kenya provides that a person can update their Will by executing a codicil (a written amendment to the Will) or by making a new Will entirely.

    The codicil should be signed in the same manner as the original Will, that is, it should be signed by the maker of the Will in the presence of two independent witnesses who should also attest that they saw the maker of the Will sign the codicil.

    Similarly, a new Will must also be signed and witnessed in the presence of two independent witnesses and should clearly indicate that it revokes all previous Wills and codicils made by the maker of the Will.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What are the advantages of Updating my Will?

    Some of the advantages of updating a Will include: –

    • Reflects current wishes:

    Updating a Will ensures that it reflects a person’s current wishes and intentions for the distribution of their assets.

    • Avoids confusion:

    An outdated Will can lead to confusion and disputes among beneficiaries. Updating a Will can avoid these issues by clearly outlining the maker’s final wishes.

    • Protects beneficiaries:

    Updating a Will can protect beneficiaries by ensuring that they receive their intended inheritance and minimize the chance of challenges or disputes.

    • Accommodates changes in family or financial circumstances:

    Changes in family dynamics or financial circumstances can be accommodated by updating a Will. This can help ensure that the maker’s assets are distributed according to their current intentions.

    • Facilitates the probate process:

    An up-to-date Will can facilitate the probate process and reduce the chance of challenges or delays in obtaining the grant and overall distribution of assets to the intended beneficiaries.

    All in all, updating a will can provide peace of mind and ensure that a person’s final wishes are accurately reflected and carried out.

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    How can we help?

    Gabael Trust Corporation Limited has established itself as a ‘go-to-firm’ that provides premier estate planning services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Will.

    We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs and we welcome you to take advantage of our excellent, professional and cost-effective services.

    [/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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  • Estate Planning Through Wills.

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    The Law of Succession Act, Cap 160 provides for two forms of wills: –

    1. Written wills
    2. Oral wills.

    For any form of will to be valid, the maker of the will must have had the mental and testamentary capacity to make it. This means that the maker of the will must: –

    1. Be of sound mind
    2. Have mental recollection of their property (movable and immovable) and beneficiaries (children, spouse (s) and dependents); and
    3. Be of sound understanding such that they know and have the intention of making a will.

    Of note is that it is a rebuttable presumption in law that the maker of a will was of sound mind unless proven otherwise in a court of law.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    Written Will

    A written will is a legal document that indicates how your property will be distributed among your beneficiaries after you pass away. It can also indicate your preferred guardian for your child, your funeral wishes or preference, for example, by cremation or burial, among others.

    The Law of Succession Act does not impose any restrictions on the language of will or the type of material the will should be written in. The language of the will can be English, Swahili or your mother tongue and it can be handwritten or typed.

    The above notwithstanding, the Law of Succession Act provides for certain formal requirements that have to be met for the will to be valid. They include: –

    1. The maker of the will has to sign or affixed his or her mark to the will
    2. The signature or the mark of the maker of the will has to be placed in such a position as to show that he or she intended to give effect to the will
    3. The will is formally witnessed by two or more competent witnesses, each of whom must see the maker of the will sign the will or receive a personal acknowledgement from the maker of the will that the signature or mark is his or hers.

    It is important to note that the persons who witness a will must do so in the presence of the maker of the will. However, it is not necessary for both witnesses to be present at the same time while witnessing the will.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    Oral Will

    An oral will is simply a verbal statement of wishes that expresses how you property will be distributed among your beneficiaries.

    The Law of Succession Act provides that for an oral will to be valid, it has to be made before two or more competent witnesses and the maker of the oral will has to have died within a period of three months from the date of making the will.

    An oral will is often made when a person has founded reasons to believe that they may pass away soon, for example, someone who is terminally ill or is in fear of their life. Nevertheless, it is not advisable to make an oral will as it relies on human memory and the witness’s may misrepresent your wishes.

    Of note, if the maker of an oral will is a member of the armed forces or merchant marine, the oral will is valid if it meets the following requirements: –

    1. The oral will should be made during a period of active service;
    2. The oral will should be made before at least one competent witness;
    3. The maker of the will should have died during the period of active service (this period can be more than three months after the date of making the will).

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    How Can We Help?

    Gabael Trust has established itself as a ‘go-to-firm’ that provides premier corporate trustee, corporate administrator and corporate executor services in Kenya. We also provide value-added services such as advice on investment, tax and retirement that may be critical for your Family Trust.

    We have an excellent team of experts and strategic partners across the East African Region who are ready to meet your unique estate planning needs through wills and trusts. We welcome you to take advantage of our excellent, professional and cost-effective services.[/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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  • Discretionary Trust; The Best Estate Plan for your Child

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    Parents are always concerned about the well-being of their children especially when they are highly dependent minors that require constant specialized care.

    Often, their primary concern is how to come up with the best plan to ensure that their child is well taken care of in the event they become incapacitated or when they eventually pass away. This can be done through establishing a discretionary trust through which they can put in place financial arrangements for the future care and well-being of their children.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What is a Trust?

    A trust is a legal arrangement through which a parent can appoint a trusted person (a trustee) to hold and manage the funds or assets transferred to the trust (the trust fund) for the benefit of a specified person, in this case their child or children.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What is a Discretionary Trust?

    The word discretion refers to a person’s ability to act as per their own judgment and conscience. In a trust arrangement, the power of discretion is usually exercised by the trustees while undertaking their duties in the discretionary trust and ought to be done with utmost good faith and in the best interest of the beneficiaries.

    Based on the above definition, a discretionary trust can be defined as a flexible trust arrangement that enables the trustees to exercise their fair judgement while exercising their duties in the trust deed, in order to meet the beneficiaries’ changing circumstances.

    Due to the wide discretionary powers given to trustees, it is always advisable for a parent to prepare a letter of wishes to accompany the discretionary trust. A letter of wishes usually sets out the parent’s primary requests with regard to the distribution of the trust fund to their children. For example, it can indicate that the child should only receive benefit from the trust after obtaining their first degree or that a large portion of the trust fund should be used to cater for the specialized care of a disabled child, etc…

    [/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What are the defining features of a Discretionary Trust?

    There are three essential features that make a discretionary trust the most preferred form of family trust for parents of minors, children living with disability or unruly children. They include:

    • Flexibility;

    It may be difficult for a parent to predict their children’s future interests and needs while creating the trust. Therefore, by establishing a discretionary trust, the trustees can be able to meet the child’s evolving financial needs in health care, education, sports and any other legitimate activity that may require financing by the trust.

    • Protection;

    A discretionary trust provides protection to the beneficiaries from their own extravagant choices. For example, it allows the trustees to halt the distribution of trust income to a child especially when the parent had raised concerns about the child’s wasteful lifestyle and there is real concern on how they would cope after inheriting large sums outright. In such a case, the trustees are at liberty to hold and manage the assets of that beneficiary on their behalf and provide occasional and controlled benefits to them.

    • Adaptability

    A discretionary trust enables the trustees to adapt to the child’s changing health care, education and extracurricular requirements as their powers of distribution of trust fund are not cast in stone. It also makes it easier for the trustees to take advantage and align the trust to any future changes in legislation that may be of benefit to the trust.

     

    What is the importance of creating a discretionary trust for your child?

    Clients with young children often do not wish their children to inherit substantial assets at a young age. Many would prefer their children to have obtained a degree, have established careers or have an understanding of financial matters, before they can obtain any benefit from the trust.

    In addition, when children are very young it is difficult to anticipate their future needs, some children may require more assistance than others. Discretionary trusts facilitate a wait and see approach, enabling parents to choose responsible individuals to assume the guardianship role for their child at a later stage. It also allows the trustees to quickly adapt and facilitate to the changing needs of the child.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]What are the drawbacks of creating a discretionary trust?

    Most may argue that discretionary trusts donate wide and unfettered discretionary powers to trustees. Such unfettered control of trust assets by trustees may lead to self-dealing, self-enrichment or general abuse of power by trustees to the detriment of the beneficiaries.

    Nonetheless, this can be mitigated by the parent by writing a letter of wishes indicating their primary requests for the welfare of their child or by appointing an enforcer in accordance with the Trustee (Perpetual Succession) Amendment Act of 2021.

    An enforcer is a company or an individual who can be appointed in the trust to monitor the administration of the trust for the benefit of their children. Even though it is not a mandatory role, it may be prudent to include an enforcer in the discretionary trust as they can exercise a supervisory role over the trustees with the mandate to:-

    1. Inquire into the status of implementation of the terms of the trust;
    2. Require the trustee to remedy any breach of the terms of the trust; and
    3. Pursue legal action against the trustees for such breaches.

    It is important for the the enforcer of the trust to be different from the trustee(s), therefore, the two offices cannot be occupied by the same person.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]How can we help?

    A parent can ensure the proper administration of their discretionary trust by appointing a corporate trustee as a trustee, solely or jointly with other trustees, or as an enforcer whose mandate is to ensure adherence of the Trust Deed. Gabael Trust Corporation is an independent and reliable corporate trustee that provides premier estate planning, trust management and trust administration services and can be appointed as enforcer to ensure the proper administration of your trust.

     

    Get in touch with us today to take advantage of our excellent and cost-effective services.

     

    Karibu Gabael.

    [/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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  • Duties of Trustees in your Family Trust

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    Who is a Trustee?

    A Trustee is a person that is given the legal responsibility to manage, administer and/or hold property for the benefit of another person. He or she is usually appointed in accordance with the terms of the trust deed whereafter he must act in the best interest of the trust while undertaking his duties.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    Who can be appointed as Trustee?

    The person who creates the trust (hereinafter called “the settlor”) is often appointed as the first Trustee, solely or jointly with other persons, until they resign, die or become incapacitated and are succeeded in accordance with the terms of the trust deed. In addition to the settlor, the following persons can be appointed as Trustee: -[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    • Friends or Peers;
      The settlor is at liberty to appoint any of his trusted friends or peers as trustee so long as they are above the age of 18 years and are of sound mind.  Since the position of trustee requires constant interaction with the settlor’s family members, the settlor should select the most responsible, reliable and amiable friend to be a trustee.
    • Relatives;
      Most settlors appoint their family members to be a trustee in their family trust especially when they have minor children. Although this is the preferred approach, the settlor should be wary of potential family drama or resentment that may arise during the administration of the trust. To prevent this, settlors should apprise themselves of their family member’s character and capabilities to be sure that the relative is up to the task or appoint an independent trustee (e.g. a corporate trustee) jointly with the relative trustee.
    • Trust Corporation;
      Hiring a trust company like Gabael Trust Corporation can be a great option for settlors for many reasons. Trust companies are often independent and reliable and are able to take a stern, matter-of-fact approach while managing the settlor’s estate per the discretion and guidance of the Trust. This in turn safeguards the settlor’s legacy and reduces cases of mismanagement of the Trust.

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    What are the general duties of a Trustee?

    A Trustee owes a duty of honesty, integrity, loyalty and good faith to the beneficiaries of the trust.  He or she should also be prepared to undertake the following duties during their tenure as trustee as per the terms of the trust deed: –

    • Act as a fiduciary:

    The role of a fiduciary is one that is held in high regard because it entails acting in good faith while protecting the investments of the trust and undertaking the distribution of the trust assets. This core duty requires the trustees not to place themselves in a position where their duty and interest may conflict with their duties in the trust.

    • Ensure the safety of trust assets:

    Having read and understood the contents of the trust deed, the trustee should manage the trust assets accordingly making sure to keep proper and accurate record of all dealings with the trust assets.

    • To observe the terms of the trust deed:

    Trustees must read, understand and strictly comply with the duties and directions set out in the trust deed.

    • To act impartially between the beneficiaries

    Trustees must balance competing interests between beneficiaries and not allow one beneficiary to suffer at the expense of another. He or she must treat all beneficiaries with equal respect and dignity.

    • To provide accurate information

    Trustees are under a duty to provide clear and accurate accounts and produce any information, or other documents relating to the trust when required to do so by a beneficiary.

    • To exercise reasonable care and ensure the correct distribution of assets.

    Trustees must ensure that the assets of the trust vest to the beneficiaries in accordance with the distribution model of the trust.

    • Not to profit from the Trust

    A trustee is not permitted to gain any benefit directly or indirectly from the Trust, for example, a trustee is normally not permitted to purchase Trust property.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What constitutes breach of duties by Trustees?

    Below are some reasons why a trustee may be sued for breach of their duties as per the terms of the trust deed:-

    • When the trustee refuses to produce proper accounts or provide updates of all dealings, investments, transfers or pay-outs of the trust funds or trust property to the beneficiaries.
    • When the trustee embezzles funds from the trust;
    • When the trustee engages in self-dealing –this includes actions such as purchasing assets from the trust, borrowing from the trust even if the trustee repays the borrowed funds or investing the trust funds in their personal businesses, to name a few.

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    How can we help?

    Due to the challenges and complexities that can arise in the day to day administration of trusts, it is advisable for appointed trustees to seek professional help. At Gabael, we have an excellent team of experts and strategic partners across the East African region who can advise you, as necessary, on the nature and extent of your powers and duties as a trustee. We can also be appointed, solely or jointly with other trustees, to offer reliable and independent trustee services

    Get in touch with us today to take advantage of our excellent and cost-effective services.

     

    Karibu Gabael.[/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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  • Why Appointing a Corporate Trustee is the Right Move for You

    [vc_row][vc_column][vc_column_text]When establishing a family trust, one of the most fundamental decisions you will have to make is on who will serve as trustees of your Trust.

    A trustee can be an individual or a company that is appointed by the settlor (the founder of the trust) for purposes of holding or managing and/or administering the trust assets on behalf of, and for the benefit of the intended beneficiaries. A company that is licensed to provide trustee services is known as a corporate trustee.

    Off the top of your head, you may have a few people in mind such as your relatives, a close friend or your lawyer who you may want to appoint as the trustees of your family trust. However, there are several reasons why it is advisable to appoint a corporate trustee solely or jointly with your proposed individual trustees.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]These include: –

    1.     Perpetual Succession: –

    Unlike individual trustees, a corporate trustee has perpetual succession which simply means that it does not die. In addition, it is not limited by old age, physical or mental incapacity or supervening personal responsibilities that may otherwise prevent it from undertaking its duties.

    For this reason, appointing a corporate trustee solely or jointly with other individual trustees ensures the continuity and timely administration of the trust such as a dynasty trust (a trust that is established to preserve family wealth and continue for several generations).[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    2.      Reliable and Professional Services: –

    The appointment of a corporate trustee safeguards your estate and ensures that you access the right expertise and professional services required for the effective administration of the trust.

    Unlike individual trustees who may not have the requisite skill set to administer the trust, corporate trustees have the benefit of drawing from its skilled, experienced and professional team to ensure that its clients enjoy reliable and professional services. In addition, since corporate trustees are corporate bodies with perpetual succession, the beneficiaries can be able to hold them to account in the unlikely event of unprofessional conduct or breach of trust.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    3.     Ensure that your loved ones are not unduly burdened: –

    Appointing a corporate trustee for your family trust relieves your loved ones of the additional burden of managing and administering the trust being as they may already be committed in their personal businesses or are in full-time employment. Such divided attention may cause laxity in undertaking trustee duties and expose the trust to mismanagement, tax liabilities or other legal liabilities.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    4.     Prevent Family Wrangles

    The unity of family members is key to sustaining the family trust and strengthening the relationships within the family. If the trustee is a family member and the beneficiaries do not agree with his or her actions or decisions, this could lead to bitter conflicts within the family. In addition, due to their close familial ties, the trustees may be afraid to make professional but unpopular decisions which are in the best interest of the trust, for fear of severing their relationship with the beneficiaries.

    On the other hand, a corporate trustee is an innate body that cannot have such relationships and therefore appointing it can help prevent family disagreements over your estate.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    How we can help

    Gabael Trust Corporation Limited is a full-service premier company that provides independent and client-centric fiduciary and corporate trustee services in Kenya. We can be appointed to act as corporate trustee in your family trust, charitable trust and non-charitable trust, jointly or solely with other individual trustees. We also offer trust protection services by acting as an Enforcer to ensure that your trustees fully comply with the terms and conditions of your trusts and that they do not engage in any breach of trust or other malfeasance.

    At Gabael, our clients are our first priority and we welcome you to take advantage of our excellent, professional and cost-effective trustee services. Get in touch with us today![/vc_column_text][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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  • A Family Trust as a Tool for Protection of Family Wealth

    [vc_row][vc_column][vc_column_text]You have worked hard to acquire valuable assets or you have established your family business which has grown to be a successful enterprise. You are wondering how can you protect your wealth and eventually pass it down to future generations. This is where estate planning comes in.

    Estate planning is the process by which an individual or family arranges the transfer of their estate in anticipation of death. Your estate is comprised of everything that you own; this includes movable, and immovable assets, as well as tangible and intangible assets. Regardless to its size or quantum, everyone has an estate that would require to be administered upon death.

    An estate plan is important because it: –

    • Enables you elect your heirs or beneficiaries (that is, those who will inherit what from your estate
    • Gives you the ability to name your children’s guardian in the event of your premature death
    • Enable you protect your estate from creditors
    • Enable you reduce taxes on your estate; and
    • Minimizes the chances of family strife and ugly legal battles

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    Wills, Trusts and Power of Attorney

    Wills, trusts and Power of Attorney are common tools used by individuals for estate planning.

    A will takes effect when you die and its contents may include: how your estate will be shared or distributed; who will look after your children if they are still young; what trust you intend to establish thereunder; donations to charities; and even instructions about your funeral.

    It is paramount that your will is valid and is up to date as your legal rights and status changes- especially if you marry or remarry, divorce or separate; have children or grandchildren; if your spouse or beneficiaries dies; if you have significant changes in your estate or sell any of the assets previously covered in your will.

    If you die without a will (that is, intestate) or your Will is declared invalid by a court of law, your estate will be managed and administrated by a court appointed administrator(s) in accordance with the provisions of the Law of Succession Act, Chapter 160 of the Laws of Kenya. This process may be lengthy, uncertain and costly.

    Testamentary Trust is a trust created under your Will and only takes effect upon your death. Such trusts are normally set up to protect assets and will be administered by a trustee or trustees who is/are usually appointed in the Will. A testamentary trust would generally be created or established if:

    • The beneficiaries are minors (under 18years old)
    • The beneficiaries have diminished mental capacity
    • You do not trust the beneficiaries to use their inheritance wisely
    • You do not want family assets split for instance as part of a divorce settlement; or
    • You do not want family assets to become part of bankruptcy proceedings.

    Another tool that can be employed in estate planning is power of attorney. This can be used where you want someone (your appointed power of attorney) to have legal authority to look after your affairs on your behalf, for instance in case of incapacitation due to hospitalization.

    We shall look briefly at the establishment of family trusts in Kenya.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What is a Family Trust?

    A trust, by definition, is a three- party relationship where you or the person creating the trust (usually called the settlor or grantor) transfer some assets like money or property (normally called the trust funds) to a third party (usually called the trustee) to be manager and administered on behalf of some third parties (called the beneficiaries).[/vc_column_text][vc_column_text]A family trust is a legally binding estate planning tool that is established to financially secure and protect you and your family. Family trust, unlike wills, have the benefit of avoiding probate, a lengthy and costly legal process that oversees the transfer of assets. Sometimes, though, it might be advisable for the grantor to make some inter-vivos gifts (gifts made while the grantor or donor is alive) in order to provide for some beneficiaries or minimize or avoid taxes.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    What is the purpose of a Family Trust?

    The purpose for a family trust is to establish a legal mechanism where your family assets are ring fenced and to enable family members (the beneficiaries) to reap financial benefits from your estate while you are still alive or after death.

    There are many reasons to establish a family trust. For instance, if you have an estate that you would want to pass to your children, your trust deed can outline how this will be done. Your direction to your trustees can be broad or specific, and can include provisions or conditions as to when and how the beneficiaries will get a share of the trust fund or income in future (e.g., at certain age, after tertiary education; upon marriage etc.).

    Whereas other types of trust can list third parties as beneficiaries, family trusts usually only cater for your own family members.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    Types of Family Trusts

    There are several types of family trusts, and the main ones include:

    1. Revocable Family Trust: – This type of trust can be easily modified or dissolved anytime you decide to do so. These are flexible trusts.
    2. Irrevocable Family Trust: – This type of trust cannot be cancelled or easily changed after its establishment. The settlor or grantor loses access to and control over the trust assets once the trust has been funded because the assets become trust-owned. Irrevocable trusts are often used for assets protection.
    3. Living Trusts: – Living Trusts are designed to hold and protect your assets for you during your lifetime. With a revocable living trust you can designate yourself as the trustee (either alone or together with others) and take control of assets within the trust. This means the assets in the trust remain part of your estate while you are alive and have mental capacity and you will usually be named as a the ‘principal beneficiary of the trust. For instance, as the principal beneficiary of the trust, you can be guaranteed right of occupation of your property for the remainder of your life meaning that your trustees, usually your children, cannot evict you under any circumstances. You are also at liberty to move home, or release equity from the trust at any time. You can also direct your trustees to sell the property and to buy a new property of your choice. As the grantor or settlor, you retain the power to change and amend the trust deed at any time including changing the beneficiaries. Equally, you can even dissolve the trust altogether. This type of trust is equally applicable to married couples as well as to single people.

    With an irrevocable living trust, you as the settlor or grantor relinquish certain rights to control the trust fund and appoint an independent trustee or trustees who effectively become the legal owners. Once the trust has been established, the named beneficiaries are set and as a settlor you can do little to amend the trust deed.

    4. Marital Trust: – This trust will usually provide that the assets will automatically pass to a surviving spouse upon the death of the first spouse. Once both have passed, the trust assets will go or be administered for the benefit of designated beneficiaries.[/vc_column_text][vc_empty_space height=”20px”][vc_column_text]

    Advantages and Disadvantages of Family Trusts

    The advantages of setting up a family trust include:

    1. Creditor protection – assets held in trust are usually accessible to the creditors of the grantor or beneficiaries, or the trustees
    2. Protection against partners in divorce – If your assets are owned by a trust, or are given to your trust upon death, your children can continue to receive the benefit of those assets but the assets do not form part of their personal property, and therefore cannot be subject to claims by your children’s partners in the event of Moreover, if those assets are transferred into a family trust prior to entering into a marriage, the assets in the trust are less likely to be subject to claim at the end of the relationship.
    3. Protecting property from or for beneficiaries – For purposes of protection of your children from bad company or frauds or bad marriage, it may not be advisable to simply give your assets to your children during your life or on death. If you employ a family trust, then the trust can provide a vulnerable child or dependent with income and/or capital to meet their cash requirements as they arise. This can help protect the long- term value of your family’s assets. With an airtight trust deed, assets can be protected from the threat of lawsuit, bankruptcy or divorce.
    4. Reducing or preventing claims against your estate – Under the Succession Act, the court can effectively rewrite your Will if it considers that members of your family have been disadvantaged by its provisions and have not been adequately provided for. However, the court cannot rewrite your trust.
    5. Confidentiality – Family trust are not publicly registered and therefore can be kept confidential and private.

    [/vc_column_text][vc_empty_space height=”20px”][vc_column_text]The following are a number of the disadvantages of having a family trust:

    1. Loss of ownership of assets – Once you have funded the trust, especially an irrevocable trust, then the trustees of that trust will have the ownership and the control the assets. Therefore, even if you can retain some control by holding the power to appoint and/or remove trustees, or even by being a trustee yourself, the assets you transfer to the trust are no longer your If you continue to treat the assets as your own, any trust could be open to challenge as a sham.
    2. Legal costs of formation of the trust and the transfer of assets – There are costs involved with establishing and funding a trust. These will depend on the complexity of your trust and the nature of the assets to be Nevertheless, there are certain stamp duty and capital gain tax exemptions under Kenyan laws for transfer of assets to a family trusts.
    3. Continuous Administration Costs – If you establish a trust, you need to allow for the time and cost involved with meeting the trust’s annual accounting and administrative Additional costs may also apply   if you appoint professionals trustee or corporate trustees.

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    Is a Family Trust Appropriate for you?

    If you want your assets and your loved ones protected when you can no longer do so, then you will need an effective estate plan which may inevitably involve establishment of a family trust. As indicated above, there are a lot of advantages of establishing a family trust. Without one, your assets could be exposed to claims by third parties and your family left without protection. Moreover, your estate could be exposed to unwarranted legal contestations amongst your dependents and family members. In such case, the court could designate how your assets are divided — including who gets to raise your children in the event of death. Therefore, there are tangible benefits of establishing a family trust. Indeed, most family trusts are formed to reduce the impact of changes which may, or may not, occur such as;

    1. Protection of children or other venerable dependents
    2. Protection of estate from claims from business creditors; and
    3. Protection of estate from relationship breakdowns like divorce or separation;

    [/vc_column_text][vc_empty_space height=”20px”][vc_column_text]If you have any further questions, or would like to talk to someone about establishing a family trust, make an appointment with us or contact us through legal@gabaeltrust.com.

     

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