A trust exists where the founder has handed over or is bound to hand over to a trustee the control of property which is to be administered or disposed for the benefit of the beneficiaries. An example is where a parent (founder) transfers his farm to a trustee to be administered on behalf of her children.
A trust can be created through various means. It can be a trust inter vivos (created during the lifetime of the founder) or a testamentary trust/ trust mortis causa (one which is created by will and only becomes effective after the death of the testator). Through the creation of a trust one can avoid the dissipation of his property after their death, provide for their children’s education, secure the continued prosperity of their business after death etc.
From the above it is clear that the following are very important to a trust;
- There should be the founder,
- There should be the trustee/s who should accept appointment,
- There should be the trust fund/property
- There should be the trust object
A trust is registered at the Deeds Registry through a notarial deed. The Deeds Registries Act (Chapter 20:05) defines a notary deed in relation to it being attested to by a notary public. The same Act defines a notary public as follows;
“notary public” means a person registered as such in terms of the Legal Practitioners Act [Chapter 27:07] and, in relation to any document executed outside Zimbabwe, means a person lawfully practising as such in the place where the document was executed.”
The notary public will prepare the notarial deed of trust on instructions from the founder and should make sure that all the essential elements are included. The founder and the trustees should sign the notarial deed of trust before the notary public who will affix his/her signature and a seal. The trust deed is lodged with the registrar of deeds in triplicate and the prescribed fee paid. If the registrar is satisfied that all the requirements have been met the deed of trust is registered.
There are some advantages for creating a trust. The property of the trust is not the property of the founder and upon his /her death does not become part of his/her estate. In this way the property will not be burdened with the fees and duties applying to the deceased estate. Further the property is to some extent protected from the creditors of the founder.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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