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Trust fund Lawyers in Cape Town 2025
We will help you find a trust attorney near you in Cape Town. It is critical that you check that your lawyer is certified with the Legal Practice Council. Being listed on this page does not constitute an endorsement; it is critical that you carry out a due diligence before hiring a trust lawyer.
Let us know if you can't find a trust lawyer nearby you.
What is a Trust?
A Trust is a legal entity whereby assets are administered (by trustees) for the benefit of the beneficiaries. Key parties involved are:
- The founder who creates the trust and also transfers assets to the trust to get it going.
- The trustee/s who administer the trust according to its rules and within the requirements of legislation.
- Beneficiaries for whose benefit the trust exists.
What tax does a trust pay?
Trusts pay 45% income tax on all income which is not distributed to the beneficiaries.
Trusts pay capital gains tax on 80% of their gains (which are not distributed to beneficiaries) at a rate of 45% (compared to individuals who pay capital gains tax on 40% of their gains, at their marginal tax rate.
- Also, trust don't receive any exemptions, whilst individuals receive a R2m exemption on capital gains tax on their primary residence.
Income and gains distributed to beneficiaries are taxed at in each beneficiary's personal capacity.
Trusts don’t form part of a person’s estate; so on death there's no estate duty payable, so trusts are often used for estate planning.
Registering a Trust
There are 2 types of trusts:
- A testamentary trust is a trust which is formed in the will of a deceased person. In this case the deceased person’s last will is the trust deed.
- An intervivos trust is created between living persons and is used for various purposes such as asset protection and estate planning. This trust is created in a Trust Deed, which is drafted by an Attorney on instructions by the Founder of the trust.
What is a Trust Deed?
The Trust Property Control Act provides the legal framework within which trusts are managed in South Africa. Trusts are administered in line with an agreement called the ‘Trust Deed’.The Trust Deed will set out:
- The terms and conditions of the trust;
- Responsibilities of trustees; and
- Rights and entitlements of beneficiaries.
A Trustee must be nominated in the Trust Deed. The Trustee will be responsible for managing the Trust’s assets and ensuring that the trust runs in accordance with the Trust’s objectives and ensuring that the provisions set out in the Trust Property Control Act of 1988 are complied with. A Trustee should be trustworthy, competent; and capable of fulfilling fiduciary duties. He or she must be a major and can be the founder of the trust. The name of the trust must be set out in the trust deed – the name of the trust should end with the word “Trust”; it should reflect the nature of the trust and must not be offensive. The Beneficiaries are required to be appointed in the Trust Deed – The individual needs and circumstances of the beneficiaries and objective of the trust must be considered. Rights and entitlements of Beneficiaries should be set out in the Trust Deed. The Trust Deed should be flexible in order to accommodate changes in the circumstances of the Beneficiaries.
Register with the Master
Once the Trust Deed is completed the Trust is required to be registered with the Master of the High Court in the area where the majority of the trust's assets are located. In order to register the Trust the undermentioned documents are required to be lodged with the Master :
- A Certified copy of The Trust Deed;
- Proof of payment to the Master of their fees;
- An Application Form;
- Acceptance by the Trustees;
- Acceptance by the Auditor;
- A Beneficiary Declaration Form (you will want to clearly identify the beneficiaries);
- Certified copies of Identity Documents of all parties involved in the Trust; and
- A Bond of security if applicable.
Once the Trust is registered with the Master the Trustees can proceed to open bank accounts and to transfer assets to the trust. The trust must then be maintained and managed effectively – tax obligations and fiduciary duties of the trustees must be complied with.
Register with SARS & submit annual tax returns
All trusts established in South Africa must be registered with the South African Receiver of Revenue. Under certain circumstances, non-resident trusts must also be registered with SARS. Once it has registered with SARS, a trust must submit annual income tax returns to SARS.
When establishing a trust be aware of the financial ramifications of estate pegging strategies and Section 7C implications (click to read our guide on the topic).Example of Trust Clause in a Will
We nominate, constitute and appoint as Trustee of our Estate CLARE WENDY FARIA, or failing her the Senior Partner for the time being of the firm of Attorneys; Cloete, Baker & Partners.
In the event of any heir not having attained the age of 18 (eighteen) years at the date of our death, such heir's share shall not be paid into the Guardians Fund, but shall be paid to our Trustee hereinabove appointed to be held in Trust subject to the following terms and conditions:
- Our Trustee shall invest the residue of our Estate upon good and sufficient security as she in her sole and unfettered discretion may deem fit and proper and shall be entitled to vary investments from time to time as she may see fit, provided that the money is always invested in a Bank or other Financial Institution Fixed Deposits or Savings Accounts or in Participation Mortgage Bonds.
- Our Trustee shall apply so much of the interest accruing to the minor child as may be required for his maintenance and education and general welfare and the balance shall be added to the capital due to the minor child.
- Our said Trustee shall in her discretion have the right to apply the whole or any portion of the capital to the child until such child attains the age of majority in such manner which they may consider will materially advance the interests of such child and enhance his prospects for future happiness.
- On attaining the age of 18 (eighteen) years the minor child shall become entitled to receive immediate payment of all sums due to him out of our Estate
Deceased Estate Information
If a relative has died, perhaps without a will, and you are unsure of what do:
- Report deceased estate to the Master online
- Steps to take when your parent dies without a will.
- Lawyers in Cape Town specialising in deceased estates.
- Administrators in Cape Town for deceased estates .
- Letter of executorship requirements in South Africa.
- J192 form - next-of-kin (if no will)
- Nomination to act as executor (if no will)
- J190 form assistance
- Administration of deceased estates in South Africa.
- Property transfer cost in a deceased estate.
- Inheritance and child maintenance obligations.
- Intestate Succession Act
- Tracking deceased estates
- Death of a spouse before divorce if finalised
Wills
- How to write a will.
- Example of a last will and testament.
- Get your will drafted for free (by a lawyer).
- List of lawyers that draft wills in Cape Town.
- Consider updating your will when these events occur:
- when divorcing; to avoid your ex-spouse possibly inheriting everything.
- death of somebody mentioned in your will,
- the birth of a child you may want to include in your will,
- marriages
Connect with a Deceased Estate Expert today
Deceased Estate discussion forum
Note that this is a public forum - exercise caution before acting on info and use at own risk. Anybody may ask and answer, and you don't know what their level of expertise is. No information on this website should be acted on without first consulting with a lawyer to test its validity. Do not share private details here.
Donating & lending to a Trust
A path often followed is to donate the maximum tax-free donations allowed each year to the trust, so that donations tax does not have to be paid.
Sometimes the asset transfer is established as a loan, which must be at a fair market rate of interest so that the SA receiver of revenue does not consider it a donation). See SARS Draft Interpretation note on loans to a trust by a connected natural person.
Getting a loan/finance for a Trust
Legislation
Key legislation regulating trusts in SA is the Trust Property Control Act 57 of 1988.
Buying Property in a Trust
Buying property in a trust vs company or own name
A second property you purchase in your own name does not have the same potential tax deductibilty a first property has when it's your primary residence.
Tax implications of moving property to a trust