The trust used means effective asset protection
Introduced by the law of February 19, 2007, the trust is a contract by which a person – the settlor – transfers all or part of the property he owns to another person – the trustee – who is responsible for acting in the trust. a specific purpose for the benefit of one or more beneficiaries. Assets transferred from a separate patrimony, distinct from the trustee’s personal patrimony. Created under the watchful eye of the tax administration, the trust is fully transparent and tax-neutral.
1. In respect of incapacity
The trust is an alternative to future protection and posthumous mandates. Anyone may assign a portion (or all) of their property to a management trust for the purpose of administering and developing them for life. While the mandate for future protection can only be entrusted to a natural person (or a legal person authorized for the protection of minors), the trust allows the management of its assets to be entrusted to a professional (bank, management company or law firm).
The opening of a curatorial or guardianship measure against the grantor does not terminate the trust agreement. The Trustee will simply continue to perform the duties of the Trustee in accordance with the terms and obligations of the Trust Agreement and report to the Trustee or Guardian.
When it is constituted by a legal person, the trust will continue even after the death of the executive (the owner of the shares in trust). The settlor is thus assured that his desiderata in the management of his patrimony will be respected, both during his life (whatever the hazards) than after his death.
2. Protection of the manager’s assets
The trust can also be used as a very effective means of protecting the manager’s wealth. Indeed, the difficulties of the company are likely to place on the personal wealth of the leader a threat which the latter must guard against.
The choice of separation of property regime, the declaration of unseizability of immovable property not used for professional purposes or the use of limited liability companies are not always sufficient protection. The trust makes it possible to “partition” the manager’s assets and to isolate the assets to be protected within a so-called “appropriation” patrimony and to keep the assets placed in trust out of reach of the creditors.
The trust is considered the “Queen of Security”. In situations where obtaining financing is difficult given the financial health of the borrower, the trust can raise new debts because it offers the best guarantees to the bank, even if the debtor were to be submitted. to a collective procedure. In real estate matters, the trust can advantageously replace traditional “lease-back” and leasing transactions.
Conclusion, partially competing with existing solutions, the trust is an innovative legal mechanism, which provides new solutions, sometimes better adapted to the needs of the head of the enterprise both in terms of funding and protection of its assets.