The future of trusts as an estate planning tool

Abstract

Estate planning is an important exercise aimed at increasing, preserving and protecting assets during a person's lifetime and providing for the disposition and continued utilisation of these assets after his death. The minimisation of estate duty, however, often dominates the motivation behind estate planning and many of the tools, structures and techniques used as part of the estate planning exercise are aimed at reducing or avoiding estate duty. One of these tools is the trust. In the 2010 Budget Review National Treasury suggested that taxes upon death should be reviewed. Such review may result in estate duty being abolished. Should this happen, the motivation behind many estate plans will dissipate and many estate plans that mainly focussed on estate duty will become ineffective. The question that comes to mind is whether trusts have a future as estate planning tools. Estate planning involves many different objectives and many of these objectives can be achieved through the use of trusts. Trusts have multiple benefits and only if a trust was set up solely to reduce or avoid estate duty, will such trust become superfluous. When looking at the use of trusts in countries that do not levy estate duty (such as Australia, Canada and New Zealand), it is clear that trusts remained useful and popular in these countries even after estate duty had been abolished. This is a strong indication that trusts have a future in South Africa and that the abolishment of estate duty will not affect the usefulness and popularity of trusts.