Each person’s circumstances are unique, and each person should therefore have a will determining how their assets are distributed upon death. This may include the creation of a trust either before or after death.
A will is the legal instrument which determines how your assets are distributed upon your death. Because it is the personal instrument of a property owner (the Testator), having a will ensures that the Testator has control over the distribution of their assets. If a person dies without a will (intestate), their assets will be distributed according to a statutory formula, which may not be consistent with the Testator’s wishes.
To avoid costly disputes and ensure that your expectations are carried through it may involve reviewing the management and control of your personal, family and business affairs both while you are alive and when you pass away. This will require a thorough assessment of all of your property, and may need to be altered from time to time, as your circumstances change. Some issues which will necessarily make your will more complex or difficult are:
When a testator dies, the executor of the will must gather in the property of the testator, pay the debts of the estate, and distribute the assets according to the will. Before the executor can do any of these things, he or she must be authorised to deal with the assets of the estate through a Grant of Probate. This is an Order by the Grand Court verifying the will, and formally appointing the executor to act.
Sometimes an executor appointed by a will may predecease the testator, or may simply choose not to take on the job. It remains necessary for someone to be authorised to take on the task. Legislation prescribes a hierarchy of people entitled to apply to administer the estate, determined by their standing in the will, or by their relationship to the deceased, if there is no will. When they are appointed by the Court to administer the estate, they are said to have been granted Letters of Administration. It is effectively the same power as is given to an executor under a grant of probate.
Once an executor has been appointed by the Court, or granted Letters of Administration, the task of administering the estate begins. The executor must identify all of the assets and liabilities of the estate, transfer legal ownership of any specific gifts, such as cars or real estate, and then distribute the balance to the residual beneficiaries. Very often this will involve selling the assets of the estate, such as real estate, shares, or any other property which is not the subject of a specific gift.
A trust is a legal relationship between a settlor (the donor of property), a trustee (the legal owner of the property) and a beneficiary (the recipient of the benefit of the property). It is often used as a tool to protect the capital of a gift, or to protect the interests of a child, or a person who is in some other way vulnerable. A trust may be created either during the life of the settlor, or in a will. If created through a will, it is a testamentary trust.
Cayman is a relatively unique jurisdiction, in that there is a special form of trust, not ordinarily available in onshore jurisdictions. Ordinarily, trusts require a specified beneficiary or beneficiaries. Trusts established for a purpose, rather than an individual will only be valid if the purpose is a charitable one. However, the STAR Trust (Special Trust Alternative Regime) is a trust which allows the settlor to create a trust without any specific beneficiary. This allows a much greater degree of flexibility for the use of such instruments in commercial or personal financial arrangements.
The death of a business owner or property owner may have the effect of breaking up the business, or causing the property to be sold or subdivided. This can have very negative effects on the value of a business. For all of these reasons, there is often a great advantage to making plans in advance and putting in place legal arrangements such as trusts and companies to ensure continuity of business.