Table of Contents
Various tools for estate planning-
Estate Planning Tools | Applicable During Lifetime | Applicable After Death |
---|---|---|
Will | – | ✓ |
Nomination | – | ✓ |
Family Settlement | ✓ | – |
Trust | ✓ | ✓ |
Joint Holding | ✓ | – |
Gift | ✓ | – |
Power of Attorney | ✓ | – |
Mutation | ✓ | – |
Wills
A will is a legal document that expresses a person’s (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution.
Types of Will | Definition |
---|---|
Conditional | A copy of the will is kept with the testator |
Joint and Mutual | A will made by two or more persons or two testators, respectively |
Duplicate | A copy of the will kept with the testator |
Holograph | A will entirely in the handwriting of the testator |
Concurrent | Two wills are written for properties in different countries |
Sham | A deliberately executed document purporting to be a will |
Characteristics and content of the will
- The person making the will is the testator.
- The person who is named in a will to receive a portion of the deceased person’s estate is known as a legatee.
- The person named in the will to administer the estate of the deceased person is termed as an Executor.
- The will can be revoked or altered by the testator at any time during his lifetime.
- The will takes into effect only after the death of the testator.
Types of will
- Conditional or Contingent Will: A will may be expressed to take effect only in the event of happening of some contingency or condition.
- Joint and Mutual Will: A joint will is a will made by two or more persons.
- Duplicate Will: A duplicate will is a copy of the Will kept with the testator.
- Holograph Will: A holograph Will is a will entirely in the handwriting of the testator.
- Concurrent Will: In general there should be only one Will left by the testator, but sometimes the testator may write two wills –one relating to his property in one country and other relating to his property in other country.
- Sham Will: If a document is deliberately executed with all due formalities purporting to be a Will, it will be anullity if it is proved that the testator did not have any intention of any testamentary operations but some collateral object.
- Privileged and unprivileged Will: Mostly the will has to be made in writing. But there are situations where this may not be possible. The best example is a soldier during his engagement in the actual warfare or airmen so engaged or a mariner at sea may pronounce his Will by or mouth before 2 witnesses. The will so pronounced by such persons are called privileged will. All other kinds of Wills, which are not privileged wills, are called unprivileged will.
Legal Requirements and Testamentary Capacity:
- Legal requirements and testamentary capacity are essential aspects of making a will.
- According to the Indian Succession Act, only certain persons are eligible to make a will.
- There are certain essentials that must be met in order for a will to be valid.
Persons Eligible to Make a Will:
- A person of sound mind who is not a minor.
- A married woman who can dispose of property which she could alienate during her lifetime.
- Deaf, dumb, or blind persons who are able to understand what they are doing.
- An insane person during an interval in which he is of sound mind.
- No person can make a will if they are not in a sound state of mind.
Essentials for Eligibility to Make a Will:
- Testamentary capacity and sound mind
- Knowledge of contents
- Free from undue influence/fraud/coercion
- Voluntary act
Testamentary Capacity:
- A person is said to be in testamentary capacity only if he is in a sound state of mind.
- The testator should have sufficient capacity to comprehend perfectly the condition of properties, his relation to the persons who were or might have been object of his bequest and the scope and bearing of the provisions of his Will.
Eligible Person | Essential Elements for Eligibility |
---|---|
Person of sound mind | Testamentary capacity and sound mind |
Married woman | Knowledge of contents |
Deaf, dumb, or blind | Free from undue influence/fraud/coercion |
Insane person | Voluntary act |
Registration of Wills:
Section | Details |
---|---|
17 | Deals with Registration of Will |
18 | Registration of Will is optional |
Advantages of registered Will | – Cannot be tampered, destroyed, or stolen – Certified copy of Will can only be given to testator or agent – Will is kept in safe custody – Leasehold property can be transferred to legal heirs |
Registration process | Will needs to be attested by sub-registrar with witnesses present Testator and witnesses receive a copy, others kept in safe custody |
Exemption from attending registrar’s office | – Person with bodily infirmity – Person in jail under civil/criminal process – Muslim pardanashin woman |
Revocation and amendments | Only original Will needs to be registered, subsequent amendments do not need registration |
Specific situations for registration | Bequeath to religious/charitable institution by non-Hindu |
Conditions for valid bequeath to religious/charitable institution | – Will has been executed – Will has been deposited with sub-registrar within 6 months – Testator survives for 2 months after execution |
Important considerations | – Will should be kept in safe custody – Registrar can keep copy in sealed envelope for safekeeping – Sealed copy can be opened in presence of testator or applicant at death |
Modifying and Revoking a Will
Topic | Summary |
---|---|
Revocation of Will | A will is revocable by the testator at any time when he is competent to dispose of property through a will. A will can be altered or revoked through a subsequent will, burning, tearing, or destroying the original will, getting married, or executing an instrument of revocation. |
Modes of Revocation | There are four modes of revocation of a will. These include revoking all earlier wills through a subsequent will, destroying the original will, getting married, or executing an instrument of revocation. Mere loss of the will does not lead to revocation. A document declaring the intention of the testator to revoke the will should be executed in the same manner as a will. |
Characteristics of Will | A will is always revocable until the death of the testator, provided he is in sound mind at the time of revocation. A mere expression of intention to revoke a will at some future date is not valid. |
Codicils-
Topic | Codicils |
---|---|
Definition | A supplementary document to a will that explains, alters or adds to its disposition. |
Execution | Must be executed and attested just like a will. |
Purpose | Allows the testator to make minor alterations to their will. |
Relationship to Will | A codicil is not an independent document, but rather a part of the original will. |
Considerable Alterations | If alterations are significant, a new will revoking the earlier one should be written. |
Modes of Alteration | Codicil can be endorsed on the original will or written as a separate document. |
Sample Codicil | Exhibit 15.2 shows a sample codicil substituting a trustee appointed under a will. |
Succession Certificate-
A document issued by a court to establish the authenticity of legal heirs and authorize them to represent the deceased for the purpose of collecting debts, securities, and other assets due or payable to them.
Purpose: To claim both movable and immovable properties of the deceased, specifically when there is no Will. It is limited to respect to debts and securities such as provident fund, insurance, deposits in banks, shares, or any other security of the central government or the state government to which the deceased was entitled.
Issuing Authority: District Courts, as stated in Section 371 of the Indian Succession Act.
The difference with Legal Heir Certificate:
- Legal Heir Certificate is issued to identify the living heirs of a deceased person, while the Succession Certificate establishes the authenticity of heirs and gives them the authority to inherit debts, securities, and other assets of the deceased.
- Legal Heir Certificate is issued by Tehsildar of the District, while Succession Certificate is issued by a Civil Court.
- Legal Heir Certificate does not serve as conclusive and valid evidence under succession laws, while Succession Certificate acts as a valid proof under succession laws and the holder can become the beneficiary of the property of the deceased.
- Legal Heir Certificate is limited to insurance claims and soon, while the right of a Succession Certificate holder is extensive in the sense that every payment made by the holder of the certificate on behalf of the deceased would be considered valid.
- Only the certified legal heir can apply for a Succession Certificate, while the spouse, parents of the deceased, son or daughter can apply for a Legal Heir Certificate.
Role of the Executor:
- An executor is a person appointed by the testator of the Will to manage the execution of the Will.
- The executor’s role involves collating all assets of the deceased, paying off liabilities, and distributing the legacy as per the wish in the Will.
- The executor has the responsibility to oversee the entire probate process and offer the Will for probate if required.
Topic | Role of the Executor |
---|---|
Definition | A person appointed by the testator of the Will to manage the execution of the Will. |
Responsibilities | – Collating assets of the deceased – Paying off liabilities – Distributing legacy as per the Will – Overseeing the entire probate process – Analyzing the Will minutely – Locating assets mentioned in the Will – Determining the present value of assets – Paying off debts, liabilities, and taxes – Disbursing the estate to legal heirs – Managing assets of minor children until they become major |
Qualifications | Anyone capable of executing a Will, including family, friends, relatives, or even a company. |
Number of Executors | No restriction, but the court does not grant probate to more than four executors. |
No Executor Appointed? | The court grants a Letter of Administration to the agent or attorney of the principal. |
Executor as Legatee | Cannot claim the legacy unless he shows intention to act as an executor. |
Administrators | Appointed by the court when no executor is available or the appointed executor is legally incapable or refuses to act. |
Probate Process:-
- Probate is a legal process that establishes the legal character of the person to whom the grant is made, and it is certified under the seal of a court or competent jurisdiction.
- A probate may be required when an executor or legatee needs to establish a legal right over the assets of the deceased, or when there is no executor in the will, or when the deceased has assets in certain states such as West Bengal, Maharashtra, and Madras.
- A probate is given only to the executor appointed in the will, but if there is no executor, then the letter of administration is given by the court with legal jurisdiction.
- The process of obtaining a probate involves filing an application in the appropriate court along with a copy of the will, verifying the application by at least one witness, and attaching the applicable fee.
- The court issues notice to the legal heirs to file objections to grant of probate, and once objections are filed, the petitioner has to prove the death of the testator, the valid execution of the will, and that it is the last will.
- Probate fees involve a court fee, which is a fixed or percentage of the total value of assets going in for probate.
- Probate is different from a succession certificate, which is obtained from a civil court and validates the right of the legal heir when there is no will.
- Probate applies to testate succession where there is a will, and it can be granted only to the executor appointed by the will.
- Letter of administration applies to both testate and intestate succession, and it can be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased’s estate.
Gifts, Joint Holding, and Nominations
Topics | Key Points |
---|---|
Gifts | |
Definition | Transfer of movable or immovable property made voluntarily and without consideration |
Donor | Person making the gift |
Donee | Person receiving the gift |
Taxability | Taxable as income from other sources, subject to exemptions provided under Income Tax Act |
Exemptions | Gifts received from relatives, gifts on marriage, gifts inherited under a will |
Revocation | Usually an irrevocable transfer, but can be revoked if the donee agrees |
Joint Holding | |
Definition | Property held by more than one person |
Assets | Bank accounts, property, demat accounts, shares, mutual funds, and specific saving schemes |
Mode of operations | Jointly, either or survivor, or anyone or survivor basis |
Access to asset | Accessible by joint holders subject to terms of holding |
Legal contest | Joint holders right to the asset can be superseded by laws of succession |
Nomination | |
Definition | Right conferred upon the holder of an investment product to appoint the person entitled to receive the monies in case of the death |
Nominee | Individual, company, or trust |
Non-nominable entities | Corporate bodies, partnership firms, trusts, Karta’s of Hindu Undivided Families (HUFs), and power of attorney holders |
Modification | Nominations can be modified any number of times |
Multiple nominees | Allowed with percentage of interest defined for each nominee |
Honoring NRI nominations | Subject to repatriation rules |
Valuation of Family Business
- Valuation of a family business is essential to determine its worth for future succession and estate planning.
- The value of a business can be a significant asset for the owner’s estate.
- Valuation is necessary when the business gets transitioned to the next generations.
- Equitable succession of the business to the next generation is every owner’s desire.
Valuation Methods:
- Capitalizing of Earnings:
- Valuing the business based on the cash flow available to the owner or investors.
- The profitability and the current and future capital needs of the business are considered for valuation.
- Projected Earnings:
- Valuing the business based on anticipated earnings using the discounted cash flow method.
- The company budget and forecast of future earnings help determine the value.
- A long-term view of 5 years plus can be challenging to derive accurate value.
- Market Approach:
- Analyzing the value the market is offering to similar businesses.
- It may not be an accurate measure, but it can provide business owners with a direction in the value they should look at for their business.
- Net Asset Value:
- Valuing a business based on its net asset value, which includes assets like real estate or machinery that the business has accumulated over the years.
- These assets can be worth more than the operating value of the business.
Other factors to consider:
- Insurance for protecting risk and provisions for mitigation of risk, like cash crunch, should be considered when analyzing a business’s value.
- By analyzing a business on all these factors, a fair value can be derived.
Joint Tenancy:
- Joint tenants have a right of survivorship, meaning that upon the death of a joint tenant, the interest in the property automatically passes to the surviving joint tenant(s).
- All joint tenants must acquire their interest in the property at the same time and from the same transaction, and each tenant has an equal right to the whole or part of the property.
- Joint tenants cannot leave their interest in the property to their legal heirs through a will, except in the case where the owner is the sole surviving joint tenant.
Tenancy in Common:
- Tenants in common do not have a right of survivorship, so when a tenant in common dies, their share of the property passes according to their will or as per succession laws.
- Each tenant in common has an undivided share and interest in the property, with an equal right to possess the whole property. However, no tenant in common has a right to possess any part exclusively.
- The shares of tenants in common can be unequal, but if no shares are mentioned, it is deemed to be equal share in the property.
Joint Tenancy | Tenancy in Common | |
---|---|---|
Right of Survivorship | Yes, the interest passes to the surviving joint tenant(s) upon the death of a joint tenant. | No, the share of the tenant in common passes according to their will or as per succession laws. |
Acquisition | All joint tenants must acquire their interest at the same time and from the same transaction. | Tenants in common can acquire their interest at different times and from different transactions. |
Ownership | Joint tenants have equal ownership of the whole or part of the property. | Tenants in common have undivided shares and interests in the property. |
Possession | No tenant in joint tenancy has the right to possess any part exclusively. | No tenant in common has the right to possess any part exclusively. |
Passing on ownership | Joint tenants cannot pass on their interest in the property to their legal heirs through a will, except in certain cases. | Tenants in common can pass on their share of the property according to their will or as per succession laws. |
What is Asset Protection?
Asset protection refers to strategies, techniques, and laws used to protect assets from creditor claims. It is often used by individuals and businesses to safeguard their assets in case of a payment default.
Factors to Determine Asset Protection:
- Identity of the Debtor: Sharing of properties between spouses, and obligations to repay debts can affect asset protection.
- Identity of the Creditor: Powerful organizations such as governments have more power in seizing assets than private lenders.
- Nature of the Claim: Dischargeable claims require a relatively lower degree of asset protection.
- Nature of the Asset: Certain assets, such as investable assets and life insurance, may be protected from creditor claims.
Asset Protection Strategies:
- Using Corporations, Limited Liability Partnerships (LLPs): These entities protect individual owners from the organization’s debt but can still be held accountable for fraudulent transfers.
- Using Asset Protection Trusts (APTs): Trusts protect assets from creditors but can have drawbacks, such as loss of control over the assets.
- Transferring Property Rights: Legal ownership of the property can be transferred to a spouse, relative, or trusted friend to avoid creditor claims, but this may have risks such as disputes over ownership and fraudulent transfers.
Creditor Protection Period-
- The protection for creditors from defaulting companies was weak before 2016.
- Laws related to creditor rights existed, but there was no special tribunal for creditor cases.
- The Recovery of Debts Due to Banks and Financial Institutions (RDDBFI) Act, 1993 was the first tribunal, but it was not effective.
- The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002 allowed secured creditors to seize assets of defaulting firms.
- The Insolvency and Bankruptcy Code (IBC) was enacted in 2016, which defined timelines for proceedings, making it an effective solution for creditors and debtors.
- The proceedings under IBC are time-lined: financial creditors can file an application, the adjudicating authority has to ascertain the default, the application is admitted or rejected, and then the corporate insolvency resolution process takes place.
- The IBC has an institutional framework like the Insolvency and Bankruptcy Board of India (IBBI), National Company Law Tribunal (NCLT), etc. for a faster resolution process.
- In 2019, India moved to 63rd rank from 136 in the World Bank’s Index on the ease of resolving insolvencies, showing a positive atmosphere for ease of doing business.
Trusts
A trust is a legal relationship in which one person, the settlor, gives another person, the trustee, the right to hold and manage property for the benefit of a third person, the beneficiary.
There are many different types of trusts, but they all share some common features. First, the settlor must have the legal capacity to create a trust. Second, the trust property must be identifiable and capable of being transferred. Third, the trustee must be willing and able to take on the responsibility of managing the trust property. Fourth, the beneficiary must be identifiable and capable of receiving the benefits of the trust.
Trusts can be used for a variety of purposes, including:
- Estate planning: Trusts can be used to avoid probate, protect assets from creditors, and ensure that assets are distributed according to the settlor’s wishes.
- Asset protection: Trusts can be used to protect assets from lawsuits, divorce, and other legal problems.
- Tax planning: Trusts can be used to reduce taxes on income, estate, and gift taxes.
- Charitable giving: Trusts can be used to make charitable gifts while retaining some control over the donated assets.
Trusts can be a complex legal matter, so it is important to consult with an attorney before creating a trust.
Here are some advantages of trusts:
- Estate planning: Trusts can be used to avoid probate, protect assets from creditors, and ensure that assets are distributed according to the settlor’s wishes.
- Asset protection: Trusts can be used to protect assets from lawsuits, divorce, and other legal problems.
- Tax planning: Trusts can be used to reduce taxes on income, estate, and gift taxes.
- Charitable giving: Trusts can be used to make charitable gifts while retaining some control over the donated assets.
Here are some disadvantages of trusts:
- Cost: Trusts can be expensive to establish and maintain.
- Complexity: Trusts can be complex legal documents, and it is important to consult with an attorney before creating a trust.
- Risk: There is always some risk involved in any legal arrangement, and trusts are no exception. It is important to understand the risks involved before creating a trust.
Indian Trust Act Coverage:
- Private or family trusts are governed by the Indian Trust Act 1882
- Principles of the Act can also apply to public trusts
- Certain general provisions of the Act apply to both private and public trusts
- Charitable or religious trusts are governed by religious laws
- Several states have their own legislation to govern public trusts
Classification of Trusts:
- Revocable Trust: created by a non-testamentary instrument or orally with a power of revocation reserved by the settlor
- Irrevocable Trust: terms cannot be amended or revised until completed; can only be revoked if Trust Deed contains an express provision for revocation
- Simple Trust: property vested in one person for the benefit of another, with trustees having no active duties
- Specific Trust: formed for the execution of a special purpose, with trustees required to exert themselves in the execution of the settlor’s intention
- Oral and written trusts: oral trusts for movable properties; written trusts for immovable properties; written trust deed advisable for enforceability of law
Characteristics of Trust:
Trust Type | Definition | Taxation |
---|---|---|
Discretionary Trust | Trustee has full discretion over the application of income and corpus of the trust to the benefit of the beneficiaries. | Taxed at maximum marginal rate subject to certain exceptions. |
Determinate Trust | Beneficiary or beneficiaries are clearly specified in the trust deed along with their specific or ascertained share in the property and income of the trust. | Tax is levied on the representative assesses in accordance with the provision of Section 161 (1) of The Income Tax Act. |
Types of Family Trust:
Trust Type | Definition | Governing Laws |
---|---|---|
Public Trust | Constituted wholly or partially for the benefit of the public at large. Can be Public Charitable Trust or Public Religious Trust. | Governed by general laws. |
Private Trust | Beneficiaries are defined and ascertained individuals. Private trusts are of 2 types: Private Discretionary Trust and Private Specific Trust. | Governed by Indian Trust Act, 1882. |
Public cum Private Trust | Part of the income may be applied for public purpose and a part may go to private person or persons. | Assessable as private trust and not exempted from income tax for the portion of income going to private person. May become a fully public trust if the income of the private beneficiary or beneficiaries renounces his or their rights under the provision of Section 58 of Indian Trust Act. |
Family Trust versus Will:
- Estate planning can be done with both Will and Family Trust.
- Will goes into effect only when one dies, while a trust is effective as soon as it is created.
- Will directs who will receive property at death, while a trust can be used to distribute property before or after death.
- Will covers property in one’s name, while a trust covers transferred properties.
- Will passes through probate, while a trust does not.
- Will can become public record, while a family trust remains private.
- Will allows naming a guardian for children, while a trust can be used for disability planning or tax savings.
Parties to Trust:
- Three parties to a trust deed: Author/Settlor of the Trust, Trustee, and Beneficiary.
- Author/Settlor is the person who settles property upon trust for the benefit of the beneficiary.
- Trustee is the person in charge of managing the trust, who can also be the settlor.
- Beneficiary is the person for whose benefit the trust is created and is entitled to receive benefits from the trust.
- Beneficiaries can be categorized as primary or residual beneficiaries.
- Author/Settlor of a living trust can amend, alter, or revoke the trust.
- Hybrid trust combines features of both fixed and discretionary trust.
Cancellation/Dissolution/Revocation of a Private Trust:
- A private trust can become extinct or be revoked, which means dissolution.
- The Indian Trust Act does not provide for dissolving a private trust.
- A trust becomes extinct if its purpose has been fulfilled, it has become unlawful, it has become impossible to carry out its purpose, or if it has been revoked.
Revocation of a Trust:
- In general, revocation of a trust is at the pleasure of the testator/settlor.
- A trust can also be revoked with the consent of the beneficiaries if they are competent to contract and agree that the existing structure of the trust is not beneficial.
- A trust can be created by the settlor specifically for payment of their debts to creditors.
- A non-testamentary document or verbal trust may allow the settlor to reserve the power of revocation.
Trust structure for tax efficiency:
Trust structures play an important role in determining the tax liability of the trust. The Income Tax Act provides various exemptions to charitable and religious trusts, which have been defined as those involved in the relief of the poor, education, medical relief, and the advancement of any other object of general public utility. Receipts from the latter should not exceed 20% of the total receipts of the trust.
Under Section 11 of the Income Tax Act, if the charitable or religious trust spends 85% or more of its total receipts towards its object in India, there is no tax on the balance 15%. Section 12 of the Income Tax Act deals with taxation on voluntary contributions and is equally applicable if certain conditions are met.
These conditions include having registration under Section 12AA, ensuring activities undertaken are in accordance with the approved objects of the trust, and auditing the trust if receipts exceed Rs.2,50,000/- for AY 2018-2019. Private Trusts have special provisions under Sections 160, 161, 162, and 164 of the Income Tax Act, which govern the assessment and taxation of income.
The real owners of the income in a private trust are the beneficiaries, and therefore, the tax should ideally be levied in their hands. However, the Act provides for an alternate mechanism of recovering the tax from the trustees on behalf of the beneficiaries. Liability of Trustees as Representative Assessee is covered under Section 161 and Section 164 states that in case of an indeterminate trust, the tax is paid by the representative assesses i.e. the trustees at MMR.
Trust Structure:-
Objectives | Types of Trust |
---|---|
Exercise control over assets and distribution of income | Revocable Trust |
Safeguard assets from creditors | Irrevocable Discretionary Trust |
Continuation of a business | Multiple Trusts |
Creating the legal framework for family assets | – |
Bypassing probate process | – |
Safeguarding interests of family members (including those with special needs) | – |
Exploring offshore business opportunities | – |
Trust Perpetuities:
- Indian law restricts the perpetuity period for gifts in a trust
- Gifts must vest within a certain period, and trust income cannot be accumulated indefinitely
- No transfer of property can create an interest that takes effect after the lifetime of a person living at the time of the transfer and the minority of someone who comes into existence after that period and will own the interest at 18 years of age
- The exception is transfers of property for the public benefit, such as religion, knowledge, commerce, health, safety, or any other object beneficial to mankind
- Bequests with property vesting after the lifetime of one or more persons, except for charitable bequests, are not valid
- Accumulation of income from property is not allowed for a period longer than the lifetime of the transferor or 18 years from the date of transfer, whichever is later
- If a will directs that income be accumulated for a period longer than 18 years from the testator’s death, it will be void after that period, and the property and income will be disposed of.
Trust as a pass-through entity:-
- A pass-through entity is a medium through which any income or transaction flows transparently to the point of destination without obstruction.
- A private trust fits into the definition of a pass-through entity because it doesn’t have a separate legal identity and is essentially created to transfer assets from a Settlor to a Trustee for the benefit of a specified set of Beneficiaries.
- Private trusts help consolidate key business and personal assets of business families in a single vehicle.
- In a private trust, receipts by the Trustee on behalf of the Beneficiary are not taxable. Only the income of the Beneficiary is taxable, and the liability to pay tax is on the Trustee in a representative capacity.
- The pass-through status is given to trusts by the nature of their tax liability.
Tax Advantages of Trusts
A trust can be an effective tax planning tool, providing advantages for future earnings and capital gains. The trust structure allows for lower taxes on future earnings and can result in substantial tax savings when income is treated as long term capital gains.
Long Term Capital Gains:
- Income treated as long term capital gains enjoys concessional tax rates and can result in substantial tax savings.
- Cost inflation index can be applied on the cost of acquisition, resulting in further tax savings.
- Long term capital gains are taxed at a standard rate of 20%, but certain investments (such as listed securities, mutual funds, and zero coupon bonds) enjoy a lower tax rate of 10%.
Short Term Capital Gains:
- Trusts can benefit from the concessional tax rate of 15% for short term capital gains arising from the sale of securities through recognized stock exchanges.
Tax Benefits of Trust Structure-
- Trust is a pass-through entity where income or transaction flows transparently to its beneficiaries without getting obstructed.
- One of the main advantages of the trust structure is the tax advantage.
Lower taxes on future earnings and capital gains:
- A trust can be an effective tax planning tool to save income tax.
- Trust structure provides the benefit of lower taxes on future earnings.
- Long-term capital gains enjoy concessional tax rates, resulting in lower income tax liability.
- Short-term capital gains arising from the sale of securities through a recognized stock exchange attract a concessional tax rate of 15%.
Direct acquisition of asset-benefit of stamp duty and capital gains tax:
- Stamp duty is levied on the instrument of transfer under the Indian Stamp Act.
- The stamp duty on trust is dealt with in the Central Stamp Act, and it is levied on the trust deed.
- Stamp duty is payable when the trust deed is registered, and it varies based on the state Stamp Act.
- Any settlement of property in the trust through a Will does not attract stamp duty.
- The trust being a pass-through entity enjoys the benefit of no capital gains in certain situations, like transfer under an irrevocable trust.
- If the trust is testamentary (executed on the death of the settlor) as part of the Will, then the transfer is exempt from capital gains.
Offshore Trusts and Regulatory Requirements
- Offshore trusts are used by high net worth families for estate planning, business opportunities, and cross-border movement.
- These trusts are formed outside of India and are subject to the laws of the country where they are created.
- The offshore trust has three main participants: the author, the trustees, and the beneficiaries, any of which can be based in different countries.
- India places no restrictions on offshore trusts having non-resident trustees or beneficiaries, but residency is determined by non-tax attributes of the trust.
- In the case of a revocable offshore trust, income derived by the trust is treated as the settlor’s income and taxed accordingly.
- If there are both resident and non-resident beneficiaries in an offshore trust, only the Indian beneficiary is taxed on distributions received from the trust.
- Indian resident beneficiaries are required to report their interest in an offshore trust in the information return filed with their income tax return.
Distributable Net Income (DNI):
- DNI is the portion of a trust’s income that is allotted to beneficiaries and becomes the source of their income.
- DNI is considered as the income of the beneficiary and is taxed accordingly.
- The formula to calculate DNI is: DNI = Taxable income – Capital Gains + Tax Exemption.
- Capital losses are added to the formula instead of capital gains.
- Taxable income includes interest income, dividends, and capital gains minus fees and tax exemptions.
- Trusts need to file their income tax returns and can be taxed at the entity or beneficiary level depending on their structure.
- Determining DNI helps avoid double taxation, especially if the income is taxed at the beneficiary level.
To illustrate the calculation of DNI, we used an example of Trust ABC with a total income of Rs 1,40,000, Rs 50,000 interest income, Rs 50,000 dividend income, Rs 20,000 fees, and Rs 20,000 capital gain. Using the formula, we calculated the trust’s taxable income to be Rs 80,000 and the DNI to be Rs 60,000.
Powers of Attorney-
Purpose of Power of Attorney | Definition |
---|---|
Formal authorization to act on someone’s behalf or as an agent | A legal document by which one person gives another person the power to act on their behalf |
Estate Planning | Widely used for transferring properties through sale, succession of lease, and other means |
Financial transactions | Used in case of the principal’s illness, disability, or absence to sign necessary legal documents |
Types of Power of Attorney | General POA: authorizes the agent to act on behalf of the principal for a wide range of matters. Special/Limited POA: authorizes the agent to act on behalf of the principal for specific transactions. |
Legal requirements for validity | The power or authority must be expressly or impliedly conferred to the agent. The agent should not use the power for their benefit. |
Parties involved | Donor: person who grants the power to the agent. Donee: person who receives the power to act on behalf of the principal. |
Legal requirements for parties involved | Donor and Donee should be of majority age, sound mind, and competent to contract. Minor women cannot appoint an agent or execute a power of attorney. Lunatics cannot be appointed as an Attorney. |
Parties to a Power of Attorney refer to the individuals involved in the legal document. There are two parties in a Power of Attorney:
- Donor: The person who grants the power to act on their behalf is known as the donor. The donor must be of sound mind, competent to contract, and over the age of 18 years.
- Donee: The person who is authorized to act on behalf of the donor is known as the donee or the attorney-in-fact. The donee must also be of sound mind, competent to contract, and over the age of 18 years.
Types of Power of Attorney:
Types | Definition |
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General Power of Attorney | A broad authorization of power given to an agent to act on behalf of the principal in multiple transactions or general matters. |
Special Power of Attorney | A narrow mandate authorization given to an agent to act only for specific or particular matters or transactions for the principal. The authority of the agent expires upon the completion of the transaction. |
Special Power of Attorney for Registration | A document of attorney that authorizes the attorney to present a document for registration in case of a document executed by the principal but not registered by him. |
Important Rules for Construction of Power of Attorney:
- The general rule of power of attorney is that it should be construed.
- The operative part of the deed is controlled by recitals.
- The general words do not construe general powers but are limited to the purpose for which the authority is given.
- The document should be construed so as to include all medium powers necessary for effective execution.
- Where the authority is to do a particular act followed by general words, the general words are restricted to what is necessary for the performance of the particular act.
Revocation-
Topic | Information |
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Revocation | A principal has the right to cancel power of attorney whenever they want. There are certain conditions laid down in Sec 201 of the Indian Contract Act, 1872 for revocation of power of attorney. |
Conditions for Revocation | When the principal revokes the authority to the agent, when either of the principal or the agent is declared insolvent by the competent court of authority, if the power of attorney holder renounces their powers, if the business for which power of attorney was granted gets completed, or on the death of either principal/donor or agent/done. |
Agent’s Interest | If the agent has an interest in the agency, then the power of attorney cannot be revoked without the consent of the agent. |
Notice of Revocation | A sufficient notice of any revocation or renunciation must be given to the principal or agent. |
Persons who can Authenticate | Notary Public, any court, Judge or Magistrate, Indian Council or Vice-Consul, Representative of Central Government are authorized to authenticate the power of attorney under section 85 of the Indian Evidence Act. |
Registration | A power of attorney does not require compulsory registration under section 17(1) b. A power of attorney is not compulsorily registrable unless it creates an interest in any immovable property i.e. charge in favor of donee. |
Stamp Duty | The power of attorney has to be stamped either with engrossed stamp or by affixation or impressing a label on it by a proper officer. The rate of stamp duty is decided by the state where the POA has to be registered. The legal nature of POA is not defined by it but by the content. |
Limits of PoA holder & PoA executed abroad-
Topic | Key Points |
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Limits of PoA holder | – Agent cannot make decisions outside the terms of the legal document. – Agent cannot make changes in the document or hand over control to someone else. – Agent loses control once the principal dies. – There are situations where the agent may have unlimited control, such as managing finances. |
PoA executed abroad | – NRI can execute PoA for matters related to India. – PoA can be made in favour of family member, relative or friend residing in India permanently. – PoA executed outside India must be authenticated/attested by the Indian Embassy/Consulate and notarized where it was executed. – Person in whose favour the PoA was executed must be authenticated/embossed before the concerned lawful authority by paying necessary charges. – PoA executed before and authenticated by a foreign court, judge, or magistrate will be considered validly executed and authenticated. – PoA executed out of India will continue to operate even when the person returns to India at the time when the documents are presented for registration. |