TRUSTS & FOUNDATIONS


CHALLENGE
To find in one place the combination of professionalism, integrity, efficiency, stability and tax neutrality, coupled with trust and foundation legislation second to none.

SOLUTION Anguilla offers all these qualities, together with a sophisticated court system and a unique alternative means of dispute resolution if needed.

RESULT Anguilla has become recognised as a prime jurisdiction of choice for wealth management purposes by some of the world’s most discriminating advisers and its reputation continues to grow.


ANGUILLA TRUSTS

Trusts are created under the Trusts Act, enacted in the mid 1990s, which has its roots in English trust law but provides a more flexible framework. The Act permits commercial or charitable purpose trusts, unit trusts, spendthrift trusts, asset protection trusts and what are termed variant trusts. The provision for variant trusts permits a settlor to create a trust (in whatever form and by whatever name) of a type recognized by the law or rules of his religion or nationality or which is customarily used by his community.

Any person who, under Anguilla law, can own or transfer property may be a settlor, and the settlor may also be a beneficiary, trustee and protector.

The Trusts Act provides for the optional registration of trusts with the Registrar of Companies. The Rule Against Perpetuities has been abolished and accumulation of income throughout the full term of a trust is permissible.

THE ANGUILLA FOUNDATION

An Anguilla Foundation is established under the Anguilla Foundation Act. The Anguilla Foundation is a hybrid entity, having the characteristics of both a corporation and a trust. Like a corporation, it is a separate legal entity that can buy and sell property, sue and be sued, enter into contracts and hold assets in its own name, whereas a trust does not of itself have a legal personality.

The Anguilla Foundation offers the private foundation (a civil-law concept) as an alternative to the common-law trust. The Anguilla Foundation is very flexible and is the vehicle of choice for persons residing or domiciled in civil-law jurisdictions. It may be established by one or more natural or legal persons by a declaration of establishment in writing during their lifetime or (by a single founder) by will. An initial property endowment (which can subsequently be increased) of at least US$10,000 must be placed under the control of the intended registered agent of the foundation. Assets endowed upon an Anguilla Foundation constitute an estate independent from that of the founder(s).

Subject to the Anguilla Foundation Act and the declaration of establishment, an Anguilla Foundation may be established for any purpose which is lawful, moral, not contrary to public policy and capable of fulfilment. A feature distinguishing it from its competitors is that it can carry out any kind of civil or commercial transactions apart from activities prohibited in Anguilla or any financial services business (unless the required licence has been obtained). The majority, if not all, of competing foundation laws do not permit commercial activities.

An Anguilla Foundation is administered for the benefit of its beneficiaries and/or purposes in accordance with contractual rather than fiduciary principles. It is irrevocable and not subject to any perpetuity periods. The Anguilla Foundation has the protection of the corporate veil which, in many cases, makes it a more appropriate solution than a trust for high net worth families seeking an estate-planning and/or asset-protection solution. Entrepreneurs seeking to provide for the welfare of successive generations can provide continuity for their business after death by holding shares in the family company, or a separate class of voting shares, in an Anguilla Foundation. An Anguilla Foundation has the option of registration or deposit.
Perhaps the most innovative and unique feature of the Anguilla Foundation is a provision enabling the founder to specify a dispute resolution procedure to apply to the foundation so that, for example, a founder from a civil-law jurisdiction could, if he wished, specify that a civil-law type procedure (or indeed a procedure of his own devising) should apply in a place of his choosing.

PROTECTION AGAINST FOREIGN JUDGMENTS

Both the Trusts Act and the Anguilla Foundation Act provide express protections against foreign judgments and orders, including any claim under the law of another jurisdiction or the order of another Court in respect of personal or proprietary consequences of marriage or its termination; succession rights, including the fixed shares of spouses or relatives; or the imposition of any foreign tax or duty. The same applies to the claims of creditors unless the settlor of the trust or the founder of the foundation was insolvent at the time of the disposition or became so as a result of it and provided that the creditor commences his action within three years of the disposition.
Company management requires thorough and regular review of corporate files to ensure that information is updated. This is especially important for share registers, as clients sometimes require a Registered Agent Certificate, also known as a Certificate of Incumbency, which is a certificate issued by the registered office confirming details of the company's status, its shareholders and directors.

As the Registered Agent, the Company Manager is responsible for paying the company's annual fees on ACORN, so it is imperative that a good accounting system is in place for billing clients and generally keeping track of clients' funds.
   

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