Legal Considerations for Non-Statutory Trusts

If you're considering setting up a non-statutory trust, it's important to be aware of the legal considerations that come with it. non-statutory trusts, unlike their statutory counterparts, are not governed by specific laws and regulations. This means that there is greater flexibility and freedom in how the trust is structured, but it also means that there are additional legal considerations that need to be taken into account. In this article, we will explore some of the key legal considerations that individuals should keep in mind when establishing a non-statutory trust. From tax implications to beneficiary rights, understanding these legal aspects will help you make informed decisions and ensure the protection of your assets.

Legal Considerations for Non-Statutory Trusts

When it comes to non-statutory trusts, there are a multitude of legal considerations that need to be taken into account. From the various types of trusts available to the formation and administration process, tax implications, asset protection, distribution to beneficiaries, validity and enforceability, transfer of trust property, trustee duties and liabilities, dispute resolution, and termination and revocation, understanding these legal aspects is crucial to ensure the smooth operation and protection of your non-statutory trust.

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Types of Non-Statutory Trusts

Non-statutory trusts come in various forms, each with its own unique characteristics and purposes. The most common types of non-statutory trusts include:

Express Trusts

Express trusts are created intentionally by the settlor, who clearly expresses their intentions to create a trust through a formal trust deed. These trusts are established during the settlor's lifetime and can be revocable or irrevocable.

Resulting Trusts

Resulting trusts arise in situations where property is given to someone without any clear intention to create a trust. In such cases, the law presumes that the recipient holds the property on trust for the person who provided it.

Constructive Trusts

Constructive trusts are imposed by the court when it is deemed necessary to prevent unfairness or unjust enrichment. These trusts are often established when there is a breach of fiduciary duty or undue influence.

Inter Vivos Trusts

Inter vivos trusts, also known as living trusts, are created during the lifetime of the settlor. These trusts can be revocable or irrevocable and are commonly used for estate planning purposes.

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Testamentary Trusts

Testamentary trusts are created through a will and only take effect upon the death of the settlor. These trusts allow the settlor to have control over the distribution of their assets after their passing.

Formation and Administration

The formation and administration of a non-statutory trust require careful consideration of various legal requirements. Key aspects include:

Trust Deed Requirements

To establish a non-statutory trust, a trust deed must be executed. The trust deed sets out the terms and conditions of the trust, including the intentions of the settlor, the powers and duties of the trustees, and the rights of the beneficiaries.

Trustee Selection and Appointment

Choosing the right trustees is essential for the successful administration of a non-statutory trust. It is important to consider individuals who are trustworthy, competent, and capable of fulfilling their fiduciary duties.

Trustees' Powers and Duties

Trustees have specific powers and duties that they must adhere to when administering the trust. This includes managing and investing trust assets prudently, distributing income and capital to beneficiaries, and acting in the best interests of the trust.

Trust Property Management

Proper management of trust property is crucial to ensure the preservation and growth of assets. Trustees must handle trust property diligently, keeping accurate records, and ensuring compliance with any legal requirements or restrictions.

Tax Implications

Non-statutory trusts have various tax implications that must be carefully considered. Some important tax considerations include:

Income Tax

Non-statutory trusts may be subject to income tax on any income generated by the trust assets. The tax obligations are typically determined based on the type of trust and the residence status of the settlor and beneficiaries.

Capital Gains Tax

When trust assets are sold or transferred, any capital gains realized may be subject to capital gains tax. The tax rate and exemptions will depend on the jurisdiction and the specific circumstances of the trust.

Inheritance Tax

Inheritance tax may be applicable when assets are transferred to beneficiaries upon the settlor's death. The tax liability is typically based on the value of the assets and the relationship between the settlor and the beneficiaries.

Stamp Duty Land Tax

In certain jurisdictions, acquiring or transferring property into a non-statutory trust may trigger stamp duty land tax. It is crucial to understand the potential implications and obligations associated with this tax.

International Tax Considerations

Non-statutory trusts with cross-border elements may face complex international tax considerations. This includes determining the tax residency of the trust, reporting requirements, and any potential double taxation issues.

Asset Protection

One of the key advantages of utilizing a non-statutory trust is the potential for asset protection. Here are some areas where asset protection can be of significant benefit:

Creditor Protection

Non-statutory trusts can provide a level of protection against creditors. By transferring assets to the trust, they may be shielded from potential claims or legal actions against the settlor or beneficiaries.

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Divorce Proceedings

In the event of divorce, assets held within a non-statutory trust may be protected from division or sale as part of the marital assets. This can be particularly beneficial for individuals looking to safeguard their assets in the event of a marital breakdown.

Bankruptcy Proceedings

If the settlor or a beneficiary faces bankruptcy, assets held within a non-statutory trust may be protected from liquidation or seizure by creditors. This can help preserve wealth and ensure its availability for the intended beneficiaries.

Distribution and Beneficiaries

Non-statutory trusts require careful consideration of how distributions are made and the rights of beneficiaries. Key aspects to consider include:

Trust Distributions

Trust distributions refer to the allocation of income or capital from the trust to the beneficiaries. The terms of the trust deed will determine the criteria, timing, and frequency of such distributions.

Trustee's Discretion

In some non-statutory trusts, the trustee has discretionary power when it comes to distributions. This allows the trustee to consider various factors, such as the beneficiaries' needs and circumstances, before making a distribution.

Beneficiary Rights

Beneficiaries of non-statutory trusts have certain rights, including the right to be kept informed about the trust's administration, the right to request an accounting of trust assets, and the right to challenge trustee decisions in court if necessary.

Contingent and Remainder Beneficiaries

Non-statutory trusts may include contingent beneficiaries, who will receive trust assets if certain conditions are met, and remainder beneficiaries, who will receive the assets once the primary beneficiaries no longer have a claim. It is important to specify these beneficiaries clearly in the trust deed.

Validity and Enforceability

For a non-statutory trust to be valid and enforceable, certain legal requirements must be met. Key considerations include:

Capacity and Consent

The settlor of a non-statutory trust must have the legal capacity to create the trust, meaning they must be of sound mind and able to understand the consequences of their actions. Additionally, all parties involved, such as trustees and beneficiaries, must provide their informed consent.

Formalities and Execution

Non-statutory trusts often require specific formalities and execution procedures to ensure their validity. This can include the proper execution and witnessing of trust documents in accordance with local laws.

Trustee Breach of Trust

A breach of trust occurs when a trustee fails to fulfill their duties or acts contrary to the terms of the trust deed. It is important to understand the potential consequences and remedies available if a breach of trust occurs.

Fraud and Illegality

Non-statutory trusts must be free from any fraudulent or illegal activities. If the trust is found to have been established through fraud or for an illegal purpose, it may be deemed invalid or unenforceable by the court.

Transfer of Trust Property

The transfer of trust property plays a crucial role in non-statutory trust administration. Considerations include:

Trust Property Transfers

Transferring property into a non-statutory trust must be done in accordance with the applicable legal requirements. This can involve the execution of transfer documents, registration with relevant authorities, or compliance with specific regulations.

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Gifts and Loans to the Trust

The settlor may choose to make gifts or loans to the trust during their lifetime. It is important to ensure that such transactions are properly documented, adhere to any legal restrictions, and do not contradict the terms of the trust.

Sale and Purchase of Trust Assets

In some cases, it may be necessary to sell or purchase assets held within a non-statutory trust. These transactions must be conducted in compliance with applicable laws, such as obtaining proper consent or approval and ensuring fair market value transactions.

Trustee Duties and Liabilities

Trustees have fiduciary duties and potential liabilities when administering a non-statutory trust. Key considerations include:

Fiduciary Duties

Trustees owe fiduciary duties to the beneficiaries and must act in their best interests. This includes exercising care, skill, and diligence in managing the trust assets, avoiding conflicts of interest, and maintaining confidentiality.

Duty of Care

Trustees have a duty of care to ensure the proper management and protection of trust assets. This includes making informed decisions, staying informed about the trust and its assets, and seeking professional advice when necessary.

Duty of Loyalty

Trustees must act in the best interests of the trust and its beneficiaries, putting their interests before their own. They must avoid self-dealing, conflicts of interest, and any actions that could compromise the trust's objectives.

Litigation and Trustee Liability

If a trustee breaches their duties or acts negligently, they may be held personally liable for any resulting losses or damages. It is crucial for trustees to act with caution and seek legal advice to minimize the risk of litigation and personal liability.

Dispute Resolution

Disputes can arise in the administration of a non-statutory trust, and having a clear dispute resolution mechanism is essential. Considerations include:


Mediation provides a non-adversarial approach to resolve disputes. It involves a neutral third party facilitating discussions between the parties to reach a mutually agreeable settlement.


Arbitration is a more formal process where a neutral arbitrator or panel of arbitrators decides on the resolution of a dispute. The decision is binding on the parties.

Court Proceedings

In some circumstances, disputes may need to be resolved through court proceedings. This can involve litigation, where the court determines the outcome, or alternative dispute resolution methods, such as summary judgment or motion hearings.

Termination and Revocation

Non-statutory trusts may come to an end or be revoked under certain circumstances. Considerations include:

Voluntary Termination

A trust can be voluntarily terminated if the settlor or beneficiaries decide to dissolve the trust. This requires proper documentation and the fulfillment of any legal requirements or conditions set out in the trust deed.

Court-Ordered Termination

In some cases, a court may order the termination of a non-statutory trust due to changed circumstances, conflicts of interest, or other compelling reasons. The court will assess the situation and make a determination based on its merits.

Revocation of Trust

A non-statutory trust can be revoked if the settlor decides to withdraw the assets and terminate the trust. This typically requires proper notification to the trustees and beneficiaries, as well as the completion of any necessary legal procedures.

Trust Merger or Consolidation

In certain situations, two or more non-statutory trusts may merge or consolidate into a single trust. This can be done to simplify administration, enhance asset protection, or achieve other strategic objectives. Legal considerations, such as the consent of all parties involved and any necessary court approvals, must be addressed.

Understanding the legal considerations for non-statutory trusts is crucial for establishing and administering a trust effectively. By carefully considering each aspect, seeking professional advice, and ensuring compliance with applicable laws, you can ensure the protection and success of your non-statutory trust.

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