What is a Family Trust?

A Trust is a structure through which assets are transferred from one person as owner (“the Settlor”) to others (“the Trustees”) for the benefit of third parties (“the Beneficiaries”). The Trustees legally own the assets (“Trust Fund”) and the Trust Deed tells the Trustees how the Trust Fund is to be dealt with.

What is the best structure?

The Courts have said that although a sole Settlor can also be the sole Trustee, he/she cannot be the sole Beneficiary (see our article on the Clayton case here). This is because there is then no legal split of asset ownership between Trustees as legal owners and Beneficiaries as equitable owners. A Settlor may also be a Trustee and a Beneficiary, but it is best practice he/she is joined by an independent Trustee (ie: non-family).

What are the benefits of using your Lawyer’s Company as an Independent Trustee?

It is harder for others to claim that the Trust is a sham (not a real Trust) from the outset, because all Trustees (including the independent Trustee) must agree on actions taken.

There is a more professional and objective approach to the Trust’s Administration. This reduces bad decisions and risk by ensuring the following issues are addressed at regular Trustee meetings:

  • Whether the investment strategy is being followed
  • The needs and wishes of all Beneficiaries
  • Beneficiaries changing expectations. (This could result in a claim by a beneficiary who has been permitted to increase the value of a property owned by the Trust)
  • If there’s a tax liability that it is satisfied before any assets are distributed to Beneficiaries
  • That the correct powers under the Trust deed are used by Trustees to pass certain       resolutions at their meetings.

What are a Trust’s possible benefits?

From an asset protection perspective it may offer protection from:

  • Estate or death duties if ever reintroduced by the Government or from a future “wealth” tax such as capital gains.
  • Family claims against your personal estate after death, because Trust assets are owned by the Trustees and not by you personally.
  • Claims by creditors upon a business failure.
  • Relationship (formerly “matrimonial”) property claims by a spouse or partner. However, a Section 21 Contracting Out Agreement (“pre-nuptial Agreement”) under the Property Relationships Act with your spouse or partner should usually precede any asset transfer to a new Trust.

From a succession planning perspective:

  • Different Beneficiaries may receive tax paid income.
  • Tax-free distributions may be made to different Beneficiaries following asset sales.
  • Which Beneficiaries receive what, and when, is decided solely by the Trustees.
  • Your Trust could own shares in a Company, which owns a Business, and so limit the Trust’s risk and liability to the Company’s creditors.
  • Your Trust could provide for the special needs of a disabled family member both before and after your death.
  • Your Trust is the best device to facilitate the growth, protection and transfer of assets (wealth) for the benefit of your family and of future generations. (Wills are currently more open to challenge under present laws.)

Every situation is unique so please discuss your particular case with a professional advisor who can provide you with a tailored solution.

Pat Rotherham – patrotherham@parryfield.com

Some key information, steps and points to get right in your planning if you want to move to New Zealand

If you don’t know where you are going, any road will get you there. Lewis Carroll

There is a lot of uncertainty around the world today. One only has to look at the examples of Brexit, terrorism and terrorist attacks in formerly safe places, political changes and financial instability and lack of confidence over the future.

In this climate, many people are looking at better options for them and their families. Where is somewhere safe that speaks English and has a similar culture and a stable political system as well as natural beauty and a good lifestyle?  New Zealand ticks those boxes so is always on most people’s radar.

My own family came here when I was a child and, after 12 years overseas, I have just moved my young family back for the same lifestyle, stability and financial reasons that motivate many others. We are not regretting our decision to move to Christchurch at this time.

This article provides an outline of key points to be thinking about if you are considering moving to New Zealand.

  1. New Zealand has a relatively low population compared to many other countries. Right now the population is around 4.5 million with the total likely to reach 5 million in the mid 2020s. About 3 out of 4 New Zealanders live in the North Island.
  2. New Zealand welcomes immigrants – but there is a ranking of priority which often comes down to the financial contribution an immigrant can make. This is important when considering the key investor categories which are the following:-
    • Entrepreneur visa: You need to be an experienced business person who wants to buy or establish a business with a minimum investment of NZ $100,000 (higher investment amounts increase the chance of a successful application), among other requirements;
    • Investor category visa: You need to bring NZ $1.5 million to invest (and again higher investment amounts increase the chance of a successful application) and meet certain criteria; and
    • Investor plus category visa: You need to bring NZ $10 million to invest to meet this threshold.
  3. Whatever visa is applied for both health and character requirements will be applicable to the immigration process.
  4. If you get a visa and come to live in New Zealand and are here for 5 years then you can apply for citizenship and once granted you have full access to rights as a citizen.
  5. Setting up a company in New Zealand is straightforward and can be done quickly as long as it has at least one director living in New Zealand (or Australia, subject to certain conditions). As well as companies there are other structures commonly used and we can advise on those options – for example, many people also set up family trusts or other ways to hold assets.
  6. The tax rates in New Zealand are adjusted depending on how much you earn. For example between $0-$14,000 the tax rate is 10.5 cents on the dollar, between $14,001-$48,000 is 17.5 cents, between $48,000-$70,000 is 30 cents and $70,001 and above is 33 cents.
  7. You need to apply to the Inland Revenue Department (IRD) for a tax number which will identify you for tax purposes. When making the move consider retaining the services of a tax accountant and other professionals in your home country so they can assist in the transition period as you move from one jurisdiction to another.
  8. If you have kids then it is good to know that the education system is world class with well established and ranked world leading universities in all the major centres. Remember the scale here is different so there is a total of 8 universities in the whole country.
  9. Remember the practical point that New Zealand is far away from the rest of the world. Only about 12% of the entire population of the world lives in the Southern Hemisphere and New Zealand is about as far away as you can get. The benefits of that are obvious as it is insulated in many ways from many of the negative things going on elsewhere in the world. But at the same time it is a series of long flights for loved ones to make to visit and that should not be overlooked when making a decision to move here.
  10. Auckland is the largest city (more than a million) but the regions should not be overlooked. For example, Christchurch is booming now with the rebuild in full swing and new infrastructure being built everywhere you look.  Both surfing beaches and snow skiing both within easy reach.  You can also get credits in the Visa application if you are moving to a region and house prices are also more reasonable than Auckland with.

As the quote at the start says, “If you don’t know where you are going, any road will get you there”. Hopefully the ideas set out above will help with some of your thinking about moving to New Zealand. If we can be of any assistance with your thought processes and looking at what options may suit your situation then please let us know and we would be happy to assist.

We have also prepared a detailed guide called “Doing Business in New Zealand” which has an overview about the New Zealand business environment.  We are happy to emailthat out to those who would find it of help.

Steven Moe
Senior Associate
Parry Field Lawyers
stevenmoe@parryfield.com

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