I have just inherited a matter which is a Discretionary Trust which was established in 2005 where the Settlor was also one of the Trustees alongside her children who were also the primary beneficiaries. The freehold property that was the intended main asset of the Trust is in the name of the Settlor and has not been transferred into the names of the Trustees at any point, as would have been expected. I think a Trust can also be constituted where there is a Declaration that one Trustee is holding the property upon trust by way of Declaration for the other Trustees, who are also the main beneficiaries. Would this be correct, and if so would the wording in the Trust itself “the settlor wishes to make the settlement contained below for the benefit of the beneficiaries mentioned below and has transferredd to the original Trustees the property known as…to be held on the and with and subject to the trusts powers and provisions” be sufficient for this declaration? Any pointers would be gratefully received!
There seem to be 2 issues here. I would certainly get the legal title out of the sole name of the settlor in case she passes away. A simple Transfer to the Trustees saying under TR1 panel 10 that it is held under the xyz Settlement is all that is needed plus any indemnity for covenants etc. You could include a statement that the beneficial interests passed on the date of creation of the settlement. The second point is about giving clarity to the original intention about when the beneficial interests fell into the settlement for CGT etc if this has not been documented previously. The TR1 may get lost, especially as the originals are no longer required by the Land Registry to effect the registration, so a separate declaration by deed about the holding of the property for the settlement since the date of creation may be advisable as a matter of record. I would not include words that could be misread to suggest that a second settlement is being created at the date of the new document.