Recent legislative changes have made private trust companies (PTCs) in Jersey and Guernsey increasingly attractive and easier to establish. PTCs are particularly appealing to families who appreciate the use and flexibility of trusts but prefer to retain more clearly defined powers. These powers can be exercised by the board of directors of the PTC, rather than relying on individual or institutional trustees with whom they may not have had a prior relationship.
PTCs have become increasingly popular among high-net-worth private clients as they often prefer to establish their own PTC to act as the trustee of their family trusts, rather than transferring assets to an offshore professional trustee company. Andy Bailey, Belasko’s head of private wealth, explores the advantages and potential issues of utilising Jersey and Guernsey as hubs for PTCs.
- Control: Trustees must act in accordance with the terms of the trust deed and comply with governing legislation. Often, trustees have wide discretionary powers in the administration of trust assets. Typically, the trustee is a professional corporate entity, potentially remote from the family. A PTC enables family members or trusted advisers to participate directly by sitting on the board or as consultants and advisers. This structure allows the family to retain greater influence over the management of trusts through the PTC than they might otherwise have.
- Transferability: Having a PTC as the trustee of family trusts avoids the need for future changes of trusteeship. Instead, only the management agreement between the PTC and the licensed administrator needs to be terminated and a new agreement entered into with a new licensed administrator. The previous licensed administrator’s PTC directors (if any) would then cease to be on the board of the PTC.
- Confidentiality: Ownership of the PTC structure can remain confidential when structured with the use of, for example, a purpose trust. This level of confidentiality is particularly appealing to HNWIs and families seeking discretion in their financial affairs.
- Trustee Liability: Professional trustees are always aware of their liability and the risk of being sued by beneficiaries or third parties. As a result, they are often reluctant to take ownership of assets or participate in ventures with substantial risks. PTCs, due to the composition of their boards, can provide for riskier investments to be included in the structure, offering greater flexibility and opportunity.
- Philanthropy: PTCs can make confidential philanthropic payments while ensuring the person managing the structure understands the thought process behind supporting such causes. This ability allows families to support charitable initiatives discreetly and effectively.
- Flexibility: A PTC is likely to be more flexible and quicker in dealing with trust assets. The direct involvement of family members or trusted advisers can expedite decision-making processes and adapt more readily to changing circumstances.
- Legal and Regulatory Framework: Both Jersey and Guernsey boast well-developed legal systems and stringent regulatory frameworks providing familiarity and reliability for trust structures. In addition, the trust laws in the Channel Islands are among the most advanced globally. They allow for a variety of trust structures, including discretionary trusts, reserved power trusts, and purpose trusts. This flexibility enables the tailoring of trusts to meet specific needs, whether for succession planning, asset protection, or charitable purposes.
Potential Issues
- Management and Control: The residency of a trust typically depends on where it’s administered and where the majority of trustees are resident. It’s crucial that the PTC isn’t considered resident in an unfavourable jurisdiction, as this could lead to the trusts being deemed resident there, resulting in adverse tax consequences. To avoid this, most of the directors should be in the jurisdiction where the PTC has its registered office. Additionally, directors must properly discharge their duties, understand their roles, actively participate in meetings, and be aware of the company’s business.
- The Sham Argument: To prevent the structure from being attacked as a sham, there must be clear evidence that the settlor and the PTC intended to establish a legitimate trust structure. This structure should be managed as such, with proper documentation and administration. Using a licensed administrator to oversee the general administration of the PTC and its underlying trusts can help mitigate the risk of a sham accusation.
- Liability of Directors: Directors of PTCs have a duty to act in the best interests of the company. If they breach this duty, the general rule is that their obligations are owed to the company, not the shareholders. Consequently, the company would need to take action against the directors.
Jersey and Guernsey are growing in popularity as strategic locations for establishing and managing PTCs. Both jurisdictions offer an unparalleled environment, for high-net-worth individuals and families, that supports the growth, protection, and smooth transfer of wealth across generations.
At Belasko, our team provides the professional, personalised support that’s needed to manage the needs of HNWIs, families and entrepreneurs. Drawing on many years’ experience, we offer tech-driven, optimised wealth solutions across a range of jurisdictions and generations. If you’d like to learn more about how we can help with establishing a PTC in the Channel Islands, get in touch with Andy Bailey at [email protected].
