An article by Natsai Nhemachena

The law of trusts in Zimbabwe is a combination of common law and legislation. A trust can either be created during the lifetime of the founder (inter vivos) or at his death (testamentary trust). A trust can only be valid if all the essentials of a valid trust are present.

The essentials required for the creation of a valid trust are as follows:

• There must be the intention to create a trust.
• The intention must be expressed in a way that creates an obligation.
• The object of the trust must be lawful.
• The trust property must be defined with certainty.
• The beneficiaries must be ascertained or ascertainable, or the impersonal object must be clearly defined.
• The Trustees must be identified in full name, identity particulars and addresses registered with the Registrar of Deeds

Testamentary trusts

Testamentary trusts are created at the winding up of a deceased estate following a specific stipulation in the deceased person’s Will that a trust must be set up.

Living trusts

Living trusts can take the form Vested trusts or Discretionary trusts. In Vested trusts, the benefits of the beneficiaries are set out in the trust deed, whereas in Discretionary trusts the trustees have full discretion at all times about how much each beneficiary is to benefit.

Benefits of a Trust:

The main advantages of having assets in a trust are:

• Asset protection (protection of assets from creditors). If assets held by the trust aren’t owned by the trustees or the beneficiaries, the creditors of the trustees or beneficiaries can have no claim against the trust.
• Continuity (A trust can ensure perpetual succession). When any trustee dies, the trust and any assets owned by it, remain unaffected.

Tax Benefits

• Estate duty – trusts do not pay estate duty (tax payable by a deceased estate).
• The trust’s income can be taxed in the hands of either the trust or the beneficiaries (a valuable tax planning tool).

For assistance with setting up a Trust kindly get hold of us on info@mmmlawfirm.co.zw