Download the infographic version of our At A Glance Guide to asset protection trusts in Jersey.
The demand for so-called "Asset Protection" trusts has continued in recent years. Whether this is in the context of a new trust being established or existing trusts being re-structured and re-organised, asset protection considerations are often a key concern for clients.
As a starting point to such considerations and discussions with clients, it is important to be clear as to both what is meant by "asset protection" and how this fits within the context of Jersey law.
5 things to know about Asset Protection
What is an "Asset Protection
Trust"?
The term "Asset Protection Trust" has developed as an
informal description of a trust whose primary purpose is to
safeguard trust assets.
What are they protecting against?
These are usually protecting against claims made against either the
settlor or beneficiaries of a trust.
Who might be making such claims?
Potential claims may arise from a variety of different sources
including creditors under a contractual claim, forced heirship
claims, insolvency or bankruptcy claims, or from divorce or
community property rules.
Why the recent interest?
The global political risk landscape remains particularly unsettled
in various regions throughout the world and this has contributed
significantly to the continued demand for the protection of trust
assets.
What can be done?
The steps taken in relation to asset protection will depend upon
the specific concerns relevant to the client and a wide variety of
mechanisms may be available from very simple structuring solutions
to bespoke drafting.
5 things to know about Jersey and Asset Protection
Jersey and Asset Protection
The key question is often to what extent a Jersey trust, once
established, will protect assets from future creditor claims.
Asset Protection Legislation
Express asset protection legislation has not been passed in Jersey
as such provisions have not been considered necessary or desirable
in light of Jersey's modern and robust trust and insolvency
legislation.
Asset Protection and Trust (Jersey) Law: General
Rule
The general position is that once assets are settled on to trust,
they will only be available to the creditors of the settlor if (i)
some procedure exists to enable the transfer into trust to be set
aside or (ii) the settlor is entitled to receive a benefit or call
for distributions from the trust.
Exceptions to the General Rule
The general rule may not apply if: (i) the settlor retains a power
of revocation; (ii) the arrangement by which the trust was settled
was not valid, or where the trust is a sham, or the settlor lacked
capacity; or (iii) the trust has been settled with the intention of
defeating a known creditor.
Firewall Provisions
The Trusts (Jersey) Law does contain robust firewall provisions to
ensure that questions concerning a Jersey trust are governed by
Jersey law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
