Trusts - The Definitive New Zealand Guide

We explain trusts, their pros and cons, and how they can be used to transfer and protect the ownership of assets in New Zealand

Updated 1 April 2022

What is a Trust?

A trust is a legal relationship created when someone (the settlor) gives assets (for example real estate, securities, cash or life insurance policies) to someone (the trustee) to look after and use for the benefit of someone (the beneficiary).
A trust is a way to separate ownership and control of an asset from those who benefit from the asset.
Once an asset is placed in a trust, the settlor no longer has legal ownership or control, and does not have the right to benefit from the asset, unless they are also a trustee and/or a beneficiary.
The trustees have a legal obligation to manage and use the assets for the purposes set out by the settlor and to benefit the person entitled to receive the benefits of the assets.
The trustee will become the recorded owner of the asset. There is often more than one trustee of a trust. The trustees must make decisions regarding the asset in the manner set out in the trust deed and in accordance with the purpose of the trust. Generally, it can be a good idea to have at least one independent trustee.

In this guide, we explain everything you need to know about setting up a trust. With hundreds of thousands in operation in New Zealand, our guide is focused on explaining what's important and what you need to consider.

We cover:

Why are Trusts Important?

Trusts can be effective in protecting assets. Since legal and beneficial ownership are separated, trustees have a fiduciary duty to hold and protect property for the benefit of the beneficiaries. There are several advantages to putting assets into the protection of a trust:

Protection for or from beneficiaries

Trustees manage assets on behalf of beneficiaries who, for whatever reason, may not be able to do so themselves.
In the event of the settlor’s death, assets which once belonged to the settlor personally but since transferred to a trust, will not be divided amongst the beneficiaries of that person’s estate.
Instead, trustees will continue to decide how assets can best benefit the beneficiary, rather than simply transferring ownership to them. This can be particularly useful where a beneficiary is a child, or is not yet capable to manage the assets themselves.

Protection from Relationship Property claims

If a settlor transfers assets into a trust before entering into a relationship, those assets cannot usually be divided during a Relationship Property claim.
A person claiming relationship property cannot make this claim to assets not owned by the settlor if the asset was transferred into a trust prior to the relationship in question.
However, if relationship property has been transferred into a trust, the court may make an order for compensation – you should discuss with your lawyer or professional trustee service if you are unsure.

Credit protection

Trusts can serve as protection from creditors if the assets are held in the trust rather than personally. Settlors may be able to undertake a higher risk venture without putting those assets at risk.

Protecting confidentiality

A characteristic of family trusts, in particular, is they are not registered on a publically accessible platform. A particular asset pool cannot be viewed by anyone the settlor does not approve of, as per the trust deed.

There can also be a number of disadvantages:

Loss of control over your own assets - this can end up in family disputes and disagreements
Ongoing administration and cost
If you don’t run it properly, it can be attacked by creditors/relationship property claims
If you want to qualify for residential care subsidies, need to take great care you haven’t deprived yourself of assets, or you could be permanently disqualified from subsidy

Legal Terms and General Things to Know

Below are some essential legal terms to better understand trusts and common trust types:

Settlor: a person who creates a trust and transfers ownership of assets. A settlor must be 20 years or older and have a sound mind when creating the trust. There can be more than one settlor of a trust.
Trustee: a person or group of persons who hold and manage assets for the benefit of the beneficiaries on the terms of the trust. Trustees have certain legally enforceable obligations set out in trust law and by the terms of the particular trust. For example, trustees must always act honestly and in good faith. A trustee has fiduciary duty to act in the best interest of the beneficiaries.
Beneficiary: a person (named individuals or a class of people) who benefits from the assets being held and managed. A beneficiary may receive capital or income in accordance with the terms of the trust.
Asset: property owned by the settlor to be transferred to a trust for protection for the beneficiaries. This can be the family home, other real estate, securities, cash or life insurance policies.
Trust deed: an administrative document that sets out the terms of the trust. It will usually be drawn up by the settlor’s lawyer or may be prepared by a trustee organisation. It acts as instructions for how the trustees should manage the assets as per the settlors’ wishes. It should contain the purpose of the trust, the parties to the trust and the scope, duties and powers of the trustees.
Family trusts: an express trust usually formed by families to benefit family members ie children. Are commonly discretionary but can be fixed.
Parallel trusts: two separate trusts for each partner in a relationship. This is common within blended families, or when there is disproportionate asset value between partners.
Business trusts: the management and protection of private shares for tax planning and succession structures. The growth of a business owned by a trust remains property of the trust and not the shareholder.
Charitable trusts: assets designed to be managed for the philanthropic benefit of charities.
Purpose trust: usually created for a purpose rather than the benefit of a person; trusts must have ‘objects’ or beneficiaries or they are void.

Setting up a Trust: Your Options Explained

It is important to note that setting up a trust is not a one-size-fits-all solution. What works for your parents, siblings, neighbours, friends or colleagues may not work for you. However, a trust is an excellent way to transfer and manage assets when set up and maintained effectively. If a trust is not maintained properly, it may not be effective.

The Trust Deed

Trusts have important and technical requirements. A trust needs to be set up professionally. It is appropriate to discuss the purpose of the trust with a licensed professional, such as a lawyer or trustee organisation specialised in trusts.
A trust deed needs to be professionally drafted but written in clear and concise language. This will aid the trustees in their understanding of the purpose and intention of the trust. It is very important that a trust deed is written well, as it can influence how assets are managed, disposed of, or if a personal creditor can challenge the authenticity of the trust itself.

Trustees

What traits are important when selecting who will be a trustee? The most important trait is simple trustworthiness and financial capability. Would you trust them with your life savings? If so, they may be a good trustee.
Setting up a trust and its subsequent management is subject to restrictions and law. The recent Trusts Act 2019 has modernised and codified mandatory and default trustee duties.

Mandatory trustee duties are:

Every trustee must know the terms of the trust.
Every trustee must act in accordance with the trust terms.
Every trustee must act honestly and in good faith.
Every trustee must act for the benefit of the beneficiaries.
Every trustee must exercise their power only in the proper purpose.

Default trustee duties are:

A general duty of care.
A duty to invest prudently.
A duty not to use trust power for trustee benefit.
A duty to consider exercise of trustee power.
A duty not to bind future exercise of trustee discretion.
A duty to avoid conflicts of interest.
A duty to impartial decision making.
Duty not to profit
A duty to receive no reward.
A duty to act unanimously.

Other characteristics that point towards a good trustee is financial rationality and good decision-making skills. Are they themselves good with money? Do they think through big decisions or rush into them? Do they consider all options or are they often biased?

Most people select friends and family as trustees. This is because we have built one-on-one relationships with them. We often trust our friends and family to truly know what we would want. However, friends or family members may get caught up in personal drama or struggle to remain neutral against their own intentions. In any case, neutrality is key.

You can ask professionals to be trustees. This can include a lawyer, accountant or a professional trustee organisation. ‘Professional trustees’ usually have greater knowledge and skill and can ensure the formalities of a trust are observed and assets are efficiently managed.

Beneficiaries

Beneficiaries are the people who benefit from the assets the settlor transfers into the trust. It may be appropriate to intend certain assets go to certain beneficiaries.
The trust deed can specify which beneficiaries, how and at what age should benefit from the assets in the trust.

Trusts - Frequently Asked Questions

Who can appoint and remove trustees?

The settlor usually appoints the initial trustees. The terms of the trust should set out who then has the power to appoint and remove trustees. If unspecified in the trust instrument (e.g. a deed), the default under the Trustee Act 1956 is that the continuing trustees or their personal representative can appoint other trustees. If there are disagreements between trustees, the Court can intervene to uphold the functionality of the trust.

How long do trusts last?

The maximum duration of a family trust is 125 years under the Trusts Act. The expiry is known as the date of distribution. However, a trust can exist for any period of time under the maximum allowed and should be stipulated in any trust deed.

Can beneficiaries sue trustees?

If a beneficiary feels a trustee is breaching their duty towards them, a beneficiary can engage the trustee in a law suit. If the beneficiary claims there has been fraudulent action, there is no time limit to engage a law suit. In any other case the time limit is 6 years after the alleged wrongdoing.

Do trustees get paid?

It depends on the terms of the trusts. As trusts can be complicated and time-consuming, it may be appropriate for the settlor to allocate capital to be distributed in order to compensate for the time taken to maintain a trust. Trustees are entitled to be indemnified from trust assets for costs and liabilities they incur as trustees.

How much does it cost to set up a trust?

The cost of setting up a trust varies depending on the complexity of the trust. In a rough estimate, transferring assets into a trust costs around $2,500 to $3,000 plus GST, but this can vary widely. For example, if the asset is a family home, extra costs surrounding updating valuation and legal transfer of the property can increase the cost, particularly if mortgagees are also involved.

Are beneficiaries entitled to information from a trustee?

A beneficiary is entitled to ask the trustees to benefit from the trust. They are entitled to information regarding trust deed specifics, trust accounts, and the trust’s assets and liabilities. A beneficiary may also entitled to details surrounding other beneficiary income or capital distributed from the trust.

A beneficiary is not entitled to information regarding trustee decisions to vary or resettle a trust, nor policy or advice the settlor has given trustees to aid their decision making.

Can a settlor exclude trustees from liability?

At settlor discretion, a trustee can be excluded from liability for certain mistakes while acting as a trustee. However, the Trusts Act 2019 does not allow indemnity from acts of dishonesty, willful misconduct or gross negligence.

What documents must a trustee keep?

A trustee must always have the trust deed, any variation to the trust deed, records of trust property and its assets, liability, income and expenses, records of trustee decisions, any written contracts, accounting records, the memorandum of wishes and administration documents.

Our Conclusion

A trust can be an efficient way to manage and protect assets when done so diligently. Trustees should always act in the best interests of the beneficiaries.
When forming and operating a trust, begin by getting good ongoing advice from professionals. This ensures the trust is valid and properly set up.
Trusts may have initial expenses, but the costs can be worth protecting your assets. If it matters to the settlor in any material way, you should consider if it is right to put it in the trust. A trust will protect assets for well over a lifetime if necessary.

But, know this – trusts may not be appropriate for your needs.

A lot of people have trusts, that cost them a lot of money to set up, for no real purpose. Trusts cost money to wind up too.
They either require a lot of time and cost to keep operating properly, or they can be challenged if you ever try to rely on it (e.g. against creditors, or relationship property).
You can also stuff things up for yourself when trying to get a residential care subsidy for a retirement home if you’re seen to have disposed of assets. A trust should not be used to try to make yourself eligible for residential care subsidies.

This is the first edition of our trusts guide. If you have experiences you would like to share and/or tips you think we should include, please contact our team.