Get to know the main features of a British Virgin Islands Trust.

By: Estefanía Alemán – General Manager of Icaza Trust Corporation

BVI Trust legislation

British Virgin Islands (“BVI”) trust law is generally based on English law, but has developed beyond English law to allow trusts constituted under BVI law to contain modern trust provisions. The governing law of BVI trusts is the Trustee Ordinance Act 1961 (“the Trustee Act), which has been amended in 1993, 2003, 2013, 2015, and 2021. Additionally, BVI enacted in 2003 the Virgin Islands Special Trusts Act 2003, amended in 2013, to create a special trust known as (“VISTA”), which is used purely for holding shares of a BVI company, and enables the trustee holding such shares to distance himself entirely from the management of the company in which the shares are held.

Who are the main parties of a trust

The main parties of a BVI trust are the Settlor, Trustee, the Beneficiaries, and the Protector.

1. Settlor: person or persons who transfers assets into a trust by divesting himself or themselves of legal ownership of these assets. The Settlor may be a trust Beneficiary. The Settlor may only act as a Trustee if he or she acts as a co- trustee. The Settlor may not simultaneously be a sole trustee and a sole beneficiary.
2. Trustee: person who holds legal title of the trust assets and administers such assets for the benefits of the Beneficiaries in accordance to the terms and conditions of the trust instrument. The trust assets constitute an autonomous patrimony, and do not form part of the estate of the trustee.
3. Beneficiaries: persons who have equal or conditional benefits on the trust fund, or in the case of a discretionary trust benefits in accordance to the discretion of the trustee. For a trust to be valid, the Beneficiaries shall be identifiable.
4. Protector: the BVI Trustee Act establishes that an instrument creating a trust may contain provisions by virtue of which the exercise by the trustees of any of their powers and discretions shall be subject to the previous consent of the settlor or some other person, whether named as protector, nominator, committee or any other name. If provided in the instrument creating the trust, the trustees shall not be liable for giving previous consent for actions resulting in any loss caused by the actions of the protector, nominator, committee, etc.

Who may be a Trustee of a Trust regulated under the laws of the British Virgin Islands: BVI law does not require that a BVI resident be the trustee of a BVI trust. However, to engage in trust business in or from BVI, the trustee must be licensed. Trust business is defined as acting as a professional trustee, protector or administrator, or managing or administering any settlement or company management as defined in the Company Management Act. A person cannot be settlor, sole trustee, and beneficiary of a BVI trust. A person may be the settlor, act as co- trustee and be the beneficiary of a BVI trust.

Taxation of trusts regulated under the laws of the British Virgin Islands:

1. Income Tax: Notwithstanding any provisions of the Income Tax Act, the income of any BVI trust in the hands of a trustee is exempt from income tax, and the Beneficiaries of any trust who are not resident in BVI are exempt from payment of income tax in respect of any moneys received by them from the trustee of any trust. Likewise, Beneficiaries who are not resident in BVI do not need to pay in BVI estate tax, inheritance tax, succession tax, gift tax, rate, duty, levy or any other taxes associated with distributions from BVI trusts.
2. Stamp Duty: Any trust that does not have as Beneficiary persons resident in BVI are exempt from the payment of stamp duty with respect to trust documents.
3. Trust Duty: An instrument declaring or evidencing a trust governed by BVI law, and any instrument changing the proper law of a trust to BVI law shall pay trust duty in the sum of two hundred dollars legal currency of the United States of America.

Regulatory requirements: Trusts constituted under the laws of the British Virgin Islands do not need to be registered in the BVI registrar. They are exempt from registration under the Registration and Records act. Trustees of BVI trusts do not have reporting or filing requirements regarding trusts.

Accounting records for BVI Trusts: the trustee has the obligation to maintain records and underlying documentation of the Trust whether within or outside BVI and retain these records for a period of at least five (5) years. The records and underlying documentation include accounts and records, such as invoices, contracts or other similar documentation, in relation to:

1. All sums of money received and expended by the trust, and the matters in respect of which the receipt and expenditure takes place;
2. All sales and purchase of goods by the trust; and
3. The assets and liabilities of the trust.

Reserved Powers of the Settlor: a Settlor, Protector, Nominator, or Committee may reserve the following powers under a BVI Trust:

1. 1. Power to revoke the trust in whole or in part.
   2. Power to vary or amend the terms of the trust instrument or any of the trusts, purposes, or powers arising thereunder in whole or in part.
   3. A general, intermediate, or special power to appoint, advance, pay, apply, distribute, or transfer trust property (whether income, capital, or both), or to give directions for the making of any such advancement, appointment, payment, application, distribution, or transfer.
   4. Power to act as or give binding directions as to the appointment or removal of a director or an officer of any company wholly or partly owned by the trust, or to direct the trustee as to the manner of exercising rights attaching to any of the shares held in such company.
   5. Power to give binding directions in connection with the purchase, retention, holding, sale of or other commercial or investment dealings with trust property or any investment or reinvestment thereof or the exercise of any powers or rights arising from such trust property.
   6. Power to appoint, remove, add or replace any trustee, protector, enforcer, or any other office holder or any advisor including any investment advisor or any investment manager.
   7. Power to add, remove, or exclude any beneficiary, class of beneficiaries, or purpose.
   8. Power to change the proper law of the trust.
   9. Power to change the terms of the trust which specify which courts have exclusive or non- exclusive jurisdiction in any proceedings involving rights or obligations under the trust.
   10. Power to restrict the exercise of any powers, discretions, or functions of a trustee by requiring that they shall only be exercisable with the consent, or at the direction, of any person specified in the trust instrument.

For more information on BVI Trusts, contact us at icazatrust@icazalaw.com.

Regardless of our age or the size of our patrimony, it is important to properly organize the assets we own because unforeseen events arise in life.

By: Estefanía Alemán – General Manager of Icaza Trust Corporation

Regardless of our age or the size of our patrimony, it is important to properly organize the assets we own because unforeseen events arise in life. By properly organizing the assets that we own, I mean the following: i) make sure that the assets we acquire are duly transferred in our favor as individuals, or in favor of a legal person of which we are beneficiaries; ii) and plan the destination or succession of these assets once we die so that they are transferred to the people we wish without major legal complications.

We must make sure that the assets we acquire are duly transferred in our favor because on many occasions we think or assume that we have acquired an asset, and later we find out that we are not the owners of the asset because it was not transferred to us according to the legal formalities required for the transfer. Recently a family member told me that he had noticed that the apartment in which he has been living for more than ten (10) years, and for which he has paid a mortgage during this period, is still registered in the name of the developer. I have also come across many cases in which a client believes to be the owner of some shares, and then realizes that they were not endorsed correctly, and the transfer of shares was not recorded in his or her favor in the company’s share register. In my experience, cases in which people believe that they own assets when legally these assets have not been transferred in their favor are more common than we imagine. Therefore, we must review and confirm that the assets in which we have an interest or participation are correctly transferred in our favor personally, or in favor of a legal person of which we are beneficiaries.

The second important point is to plan the destination or succession of our assets once we die. Generally, we do not give importance to this matter because we do not see our death proximate, we let this issue pass by, or we think that an estate planning structure is expensive. However, for a person’s heirs dealing with the estate of their deceased family member is tedious, and painful, and may involve conflicts, time, and money before being able to transfer the deceased relative’s assets in their favor.

For example, when a person dies and has no will or estate-planning vehicle, he or she dies intestate. The intestate succession proceedings can take approximately one year if no conflicts or obstacles arise during the proceedings. If conflicts and obstacles arise within the process, years may pass by before the heirs are able to receive the deceased relative’s assets.

Generally, an intestate succession proceeding involves the following steps:

1. The interested parties must identify the last domicile of the deceased in order for the notaries of their notarial circuit to certify that the deceased did not leave a will.
2. The interested parties must present before a circuit court the notarial certifications and the request for opening the Intestate Succession Proceedings.
3. The circuit court accepts the request for opening the Intestate Succession Proceedings, and forwards it to the Public Ministry so that the civil courts may declare whether they have any objections to the opening of the proceedings.
4. After receiving the response from the Public Ministry, the corresponding circuit court issues a resolution declaring the opening of the Succession Proceedings.
5. The circuit court publishes the opening of the proceedings, which in several cases causes potential heirs of the deceased to come forward to claim an interest in the estate.
6. Subsequently, the circuit court carries out the inventory and appraisal of the estate of the deceased.
7. When the inventory and appraisal of the estate is completed, the court subtracts the liabilities from the estate, and declares the value of the estate.
8. The court publishes the value of the estate assets, and any interested party may file objections.
9. After assessing any objections, the court issues a ruling on the value of the estate assets.
10. Finally, the court issues a resolution awarding the inheritance assets to the appropriate heirs.

The intestate succession proceedings involve time, costs, and potential conflicts and obstacles. When a person dies and has a will, the testate succession proceedings are similar to intestate succession proceedings, except that they do not require steps (i) and (iii) above, and possibly involve fewer conflicts because the heirs have been identified. However, the testate succession proceedings also involve time, costs, and legal formalities. Thus, the transfer of the deceased’s assets does not occur automatically in favor of the heirs.

The most efficient, organized, and transparent way for a person to transfer assets in favor of his or her heirs is through a Private Interest Foundation or a Trust. Both vehicles have different legal characteristics, but a common objective, which is to distribute and transfer assets in favor of the Beneficiaries that apply in each case in an automatic and efficient manner. Depending on the idiosyncrasies of each patriarch, and the value and variety of the estate, the Private Interest Foundation or Trust can be simple or complex to fulfill the wishes of the person upon his or her incapacity or death.

For more information on Private Interest Foundations and Trusts, contact us at icazatrust@icazalaw.com.

Icaza Trust Corporation participated as a sponsor in the STEP Latam Conference 2022, held September 22-23 at the Hilton Hotel in Panama. Every year, the event brings together renowned lawyers and banking, fiduciary and accounting professionals related to estate planning, structuring and management in Latin America.

At the event, Estefanía Alemán, our general manager, and Luis Martínez, our deputy manager, had the opportunity to share with colleagues from the region and learn about new trends in the fiduciary world.

Take a look at some snapshots of their participation by clicking on the images below.