ASSET PROTECTION TRUST
1. A COOK ISLANDS INTERNATIONAL TRUST
The International Trusts Act 1984 (“the Act”) defines an “International Trust” as a trust which is registered under the Act in respect of which:
(a) at least one trustee is either ;
• an international company, as defined in the International Companies Act 191-82 (“the ICA”), or
• a foreign company registered under the ICA , or
• a Cook Islands licensed trustee company, and
(b) the beneficiaries of the trust are at all times non-residents of the Cook Islands.
2. BENEFITS OF REGISTRATION
Registration of international trusts in the Cook Islands, pursuant to the provisions of the Act, entitles them to the benefits set out in the Act. This includes the asset protection provisions (see, amongst others, Section 13 of the Act). The benefits and features of an international trust are discussed in more detail in our article entitled “Cook Islands Offshore Trusts”. If you have not received a copy and wish to do so, please advise and we will send one to you immediately.
A Cook Islands international trust, the trustees and all parties to the trust, are not subject to any form of taxation whatsoever in the Cook Islands.
3. CHOICE OF TRUSTEE
Incorporating a Cook Islands international company and appointing that company as a trustee of the trust provides the settlor with a greater level of comfort when establishing a trust as the settlor is able to choose who is to control the company. This may be a friend, relative, advisor or any other person the settlor may nominate.
4. REDOMICILIATION OF TRUSTS TO THE COOK ISLANDS
In addition to registering newly established trusts, it is also possible to have existing trusts registered in the Cook Islands provided a Cook Islands international company, a foreign company registered under the ICA or a Cook Islands licensed trustee company is appointed as trustee or one of the trustees. Where a trust is newly established in the Cook Islands or where it is redomiciled, the benefits of the Act will apply to the assets of that trust from the date they are transferred to the trust, not the date of the trust’s registration in the Cook Islands.
5. COOK ISLANDS DUE DILIGENCE
The Cook Islands has enacted laws to assist in the prevention of money laundering. Those laws require that certain information be provided by a client in relation to a Cook Islands international trust.
(a) Registration of an International Trust
Before registering a trust we will require:
(i) A copy of the final form of trust deed. The form of trust deed may be based on our specimen form. Our specimen form is however only provided as a draft for your consideration. Where a Cook Islands international company is appointed to act as trustee we do not need to review the deed. We will be happy to refer you to Cook Islands legal counsel for an opinion to determine whether the trust deed meets with the requirements of the Cook Islands offshore jurisdiction.
The trust deed need not be filed with the Registrar of International Trusts. Most trust deeds are not filed with Registrar of International Trusts, but if necessary it can be done. For registration purposes it is sufficient to provide the Registrar with the names of the trust, the trustee or trustees, and the date of execution.
(ii) A faxed copy of the execution page of the trust deed duly signed by the relevant parties and dated with the original to follow immediately by courier. We require one original for our records. If you also require a completed and executed original, please provide two originals in the courier.
(iii) Where Cook Islands licensed trustee company is chosen to act as trustee, faxed copies of:
• Trust Information Form
• Deed of Indemnity
• Letter of Wishes
The Trust Information Form, Deed of Indemnity and Letter of Wishes must be completed, dated and signed by the settlor(s) of the trust. These documents are not filed with the Registrar and are subject to the confidentiality provisions contained in the Act. We also require that the original Deed of Indemnity and Letter of Wishes be couriered to us.
(iv) A sworn affidavit of solvency. This is required from each settlor in all cases where a trust is to be registered in the Cook Islands regardless of who is named as the trustee. This procedure is to ensure that the benefits of the Cook Islands law do not enable settlors to escape known obligations. The affidavit must state that the settlor will be able to meet existing or reasonably anticipated obligations once assets specified in the affidavit have been transferred to the trust. As solvency may change over time, upon every subsequent settlement on the trust in excess of USD 10,000 fresh evidence as to solvency will be required, either by way of a fresh affidavit from the settlor or written confirmation from the settlor or the settlors attorney. Should you require our form of affidavit of solvency at any time in the future it will be provided promptly upon request.
It is essential that the information contained in the affidavit and any written confirmation, is accurate. If at a later stage it is discovered that there are material inaccuracies or errors in the affidavit, or written confirmation, and these were known to the settlor, then the special protections under Cook Islands law will not apply to the trust. If the contents of the affidavit or confirmation are accurate in some respects but materially inaccurate in others, then the protections will not apply to any trust assets. It is therefore extremely important that a settlor completing and signing the affidavit, or any person providing written confirmation, is aware of this.
(v) Cook Islands due diligence as per paragraph 5 above. This must be provided by facsimile with originals to follow by courier regardless of who is named as trustee.
(vi) Transfer of the original settlement sum or property. In the case of nominal initial settlements it is sufficient to send a fax copy of the cheque made out to the trustee. For the procedure in relation to transfers of other property please see the information below under the heading “Transferring Assets to the Trust”.
(vii) Payment of our fees.
(b) Incorporating an International Company
Where a settlor chooses to incorporate a Cook Islands international company to act as trustee, we will require the following information which can be provided by completing our International Company Incorporation Information Form:
(i) The company name;
(ii) The proposed authorised and issued share capital. We suggest the issued share capital be a nominal figure;
(iii) Name and contact details of the shareholders or beneficial shareholders. In most cases to facilitate a convenient and efficient incorporation we are able to offer shelf companies. We can then arrange for that share to be transferred as the client directs or, if requested, we will provide a permanent nominee shareholder at no extra charge. Where subsequent allotments of share capital are made, only the amount allotted need be disclosed in the company records held by the Registrar of International Companies. While Cook Islands international trusts do not depend upon secrecy to be effective, the name of the shareholder does not need to appear on the Registrar’s records. We maintain separate registers of members in our offices as part of the company’s own records. Both the Registrar’s records and the company’s own records are subject to the strict confidentiality provisions contained in the ICA. Criminal sanctions apply for any breach of any of the confidentiality provisions.
The shareholder’s name need not appear on the company’s own records if bearer shares or share warrants are issued. If share warrants are used, the holder of the warrant is deemed not to be a member of the company but is entitled to become one on presentation to the directors of the warrant and request for the issue of shares.
If bearer shares or warrants are to be issued these must be held at all times by a Cook Islands Custodian. The Custodian must hold as part of their records the name of the owner of the bearer share or bearer warrant, their address and a copy of their passport or other acceptable photograph identity document.
(iv) Particulars of Directors. We require the names, addresses and occupations of the directors. This information is required to be filed with the Registrar of International Companies. It is not necessary to have a resident director appointed however one of our nominee companies may be appointed as a resident director, if required. The resident director can be removed by the shareholders.
Please note that where we provide nominee shareholders and/or nominee directors, we require a Nominee Services Agreement be completed. This requirement is both for the comfort of the settlor and to assist us in the proper provision of our services.
(v) A copy of the Memorandum and Articles of Association. The client may use our standard form or an alternative form if desired.
(vi) Particulars of Secretaries. It is a requirement of the ICA that a Cook Islands resident secretary be appointed. Additional secretaries located either within or outside of the Cook Islands may also be appointed. We will therefore require the names, addresses and occupations of any additional secretaries to be appointed.
The registered office of the company must be in the Cook Islands.
In general terms the ICA provides for very flexible corporate structures with a minimum of administrative requirements. Ordinarily in any one year the company is only required to file an annual return upon its renewal. We attend to this at the time of making application for the renewal.
7. THE INDEPENDENT ADVISOR’S ROLE
When establishing a trust it is important that settlors obtain independent advice from a lawyer or other suitably qualified professional. Accordingly, when establishing a trust it is our policy to deal only with settlors who have appointed a professional advisor to assist them. The role of the settlor’s professional advisor is to ensure that the terms of the trust and the transfer of assets to the trust achieve the settlor’s objectives. In particular if the settlor’s objectives include succession planning, tax planning or asset protection planning, then the professional advisor should be providing, or obtaining from other professionals, advice on issues relevant to these objectives.
We review of the trust documents, any related corporate, partnership or other documents, the circumstances of the settlor and beneficiaries and any other aspects of the trust arrangement is for the purpose of ensuring that the trust structure is acceptable to Cook Islands licensed trustee company. However, in the course of conducting any such review we may, as a courtesy to the settlor’s professional advisor, offer any comments we think could be of use to the professional advisor and settlor.
Where advice may be required on issues in jurisdictions other than the settlor’s home jurisdiction then the settlor’s professional advisor and the settlor need to determine whether to retain advisors in such other jurisdictions as may be relevant to the trust structure and the settlor’s objectives.
8. TRANSFERRING ASSETS TO THE TRUST
Assets must be transferred to the trust at the time it is established. Additional assets may also be transferred after the initial settlement. It is not necessary that the assets be moved to the Cook Islands.
Depending on the assets involved it may be necessary for the trustee to execute transfer documents or complete account opening forms. If so please forward these to us and we will give them our prompt attention.
Trusts are often established in conjunction with a limited partnership or a corporation. In the case of a limited partnership, typically assets are transferred to the partnership and the settlor receives partnership interests in exchange. The settlor or a person nominated by the settlor usually retains a 1% general partnership interest and transfers to the trust a 99% interest as limited partner. If, after the initial set up of the partnership and trust settlement, further assets are contributed to the partnership then the settlor should receive a further partnership interest in exchange for the additional contribution and then transfer this interest to the trust.
Similarly in respect of a corporation, the settlor’s assets are transferred to the corporation in exchange for shares in the corporation. Those shares are then transferred into the name of the trustee or trustees. The assets held by the corporation are managed by the directors of the corporation. As an alternative, having regard to the settlor’s wishes, the trustee may appoint an asset manager. If, after the initial set up of the corporation and trust settlement, further assets are contributed to the corporation then the settlor should receive further shares in exchange for the additional contribution and then transfer these shares to the trust.
Where Cook Islands licensed trustee company is chosen to act as trustee then whenever assets are being transferred to the trust, Cook Islands licensed trustee company will require either:
• the original title documents or confirmation that the original title documents are being held by a custodian for the trustee. Fax copies can be provided in the first instance with original documents following by courier; or
• a bank, brokerage or custodian account statement showing the assets are held in an account in the name of the trust or trustee.
As trustee we cannot resolve to accept an asset as a part of the trust fund until such time as we have these items.
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