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Author interviews

Trusts

1. What are the global trends in the area of trusts?
 The change to 'onshore' trusts in jurisdictions which are not labelled 'black' or 'grey'.  The trend is to move from 'offshore', non-tax-compliant structures to tax reporting with effective estate planning.

2. What do you think about the increasing use of foundations?
This trend is developing fast and covers multiple jurisdictions. The aim is to find and use a simplified trust entity.  It has some advantages, but one important disadvantage:  there is very little case law to rely on in resolving unexpected situations or events which may not be included in the statutes. On the other hand, the legislation of the specific jurisdiction will provide guidelines for establishing and operating the foundation.

3. Are there any novel ways of using trusts?
The traditional uses of trusts are estate planning and generation-skipping arrangements for families, charitable institutions and so on.  In the past decade, we could see a trend towards commercial uses of trusts, the use of private trust companies, asset protection trusts and the combined use of trusts and foundations.

4. What issues do you think trust practitioners need to be particularly alive to at the moment?
Stringent know-your-customer rules, exposure of trustees to liability for tax reporting, involvement in disclosure proceedings of undeclared funds and liability for breach of obligations under anti-money laundering laws and regulations.

5. What is the liability of trustees for tax reporting on trust income when the settlor resides in a country where trusts are taxed on worldwide income?
Trustees of such trusts should obtain proper legal advice on this question.  In some countries, such as Israel, the law places prime responsibility on the trustee for tax reporting on trust income. Some financial negative consequences may result from the non-reporting of trust income and the responsibility may lie on the trustee’s shoulders.

6. Will the trend of expanding exchange of information between governments have an impact on trust practitioners?
No doubt this is a new challenge for the providers of trust services.  However, we need to keep in mind that trustees in certain jurisdictions are under a special regime of privilege of information and may be able to protect their clients, at least for the information stored in their practice.

7. What are the trends affecting serving US clients in private banking?
 Switzerland, the EU member states and Israel are reluctant to accept US clients.  In Switzerland, most of the large banks will not accept a US  client, even if he reports his income and pays his taxes in the United States.  In  other countries, such as Israel, banks will refuse to purchase securities for US  clients even if they are tax compliant.

8. What should a client do to become tax compliant when, for various reasons, he or his family keeps an undeclared bank account?
 The answer will depend on the residential location of the client.  Some  countries have voluntary disclosure proceedings, such as the United States, the United Kingdom, Germany, Austria and Israel.  Other countries, such as Italy, the United Kingdom, Austria and South Africa, have or have had amnesties, limited in time, during which a lump-sum payment can be made in order to become tax compliant.
   
7. How can a young legal practitioner break into the trustee profession?     
Education, education, education!
Strangely enough, there are few academic institutions that run full programmes on trusts and estate planning. One of them is Manchester University.
The Society of Trust and Estate practitioners (STEP) runs a diploma course together with Central Law Training from the United Kingdom. The course is taught by distance learning, leading to the STEP diploma.  At present, more than 4,000 students are taking the course in many countries, including the United Kingdom, Switzerland, Canada and Israel.