Frequently Asked Questions

The Modern Trust is a legal relationship which enables a party (Settlor/Donor) to entrust the legal title of property or assets to another party (the Trustee), who is required by a Trust Deed to hold such property solely for the benefit of a third party (the Beneficiary). The Trustee is responsible for administering and managing the property for the best interest of the Beneficiary according to the terms set out in the Trust Deed and to ensure that the assets are distributed according to the Settlor/Donor wishes.

In order for the Trust to be valid, these are the 3 requirements to fulfil:

Certainty of Intention – There must be clear intention to create a Trust. The Settlor/Donor must clearly express in the Trust Deed that he intends to create a Trust and to transfer his ownership of the property to the Trustee and the Beneficiary respectively.

Certainty of Subject Matter (Asset or Property of the Trust) – A Trust is not valid unless it is clear what property forms part of the Trust. The Trustee must be certain about what property is to be held upon the Trust and to what extend each beneficiary is entitled to.

Certainty of the Objects of the Trust (the Beneficiaries) – It is essential that the identity of a beneficiary under a Trust should be clearly defined. A Trust is not valid if it has no beneficiaries or if the identity of the beneficiary is uncertain and cannot be ascertained. Beneficiaries can be anyone chosen by the Settlor/Donor and may not be related to the Settlor/Donor. 

Trust is an effective instrument that allows the Settlor / Donor to preserve and manage their wealth in a long term in order to accomplish their personal and financial goal.

• Trusts can be established to provide legal protection for the Settlor’s / Donor’s assets. Once the Settlor / Donor has transferred his property into a Trust, he is no longer the legal owner of the property. This allows Settlor / Donor to protect his properties against the creditor(s) or any future claims while continuing to receive discretionary income and principal distributions from those properties.
• The Settlor / Donor may use the Trust to serve as a safeguard against Beneficiary whom lack the capacity to properly administer the properties themselves. By setting up a Trust, the Settlor / Donor may control not only to whom the property will be disbursed, but also how and when the distributions may be made. It is useful to protect the property from Beneficiary whose ability to properly handle money is questionable.
• Trust created by a Muslim Settlor / Donor is exempted from the Syariah Law for Muslim distribution of property, which alleviates concerns of forced heirship legislations as imposed by Civil and Syariah Law. Also, Trust property held under Trust are not frozen upon the Settlor’s / Donor’s death, hence the necessity of the probate process can be avoided and the distribution of the property can take place immediately without the cost, delay and publicity of probate court. In case of bankruptcy of Beneficiary, the properties are protected and the Beneficiary are still assured of the income under the Trust.
• Trust offers high level of confidentiality since it can be established offshore and privately. In addition, the contents of Settlor’s / Donor’s assets and identity of Beneficiary remains private after Settlor’s / Donor’s death without being involved in the probate proceedings which will become a matter of public record.
• Properly structured Trust makes tax exemptions available, which is why tax benefits are also one of the considerations to set up Trust in Malaysia. For example, there is no stamp duty on transfer of assets made under a Trust Deed, and tax exemption from the real property gains tax applies for the disposal of chargeable assets to a Trust.

The Settlor / Donor may appoint anyone to be beneficiary as he wishes including himself but not as the sole beneficiary.

The assets that are commonly contain in Trust includes cash, insurance policies, properties, shares but the Settlor / Donor can transfer any assets that he owns legally, except for the assets under joint ownership whereby a written consent of the joint owner must be obtained.

Yes, the Settlor / Donor can amend and modify or revoke the Trust provided it is a Revocable Trust.

Revocable Trust is when Settlor / Donor preserves the power to revoke or make any changes to the Trust at any time, whereas Irrevocable Trust is when the Settlor / Donor does not have power to make any changes or amendment to the Trust. An Irrevocable Trust can only be revoked when the Settlor / Donor relinquishes all properties under the Trust to the intended Beneficiary.

In Malaysia, a person is legally capable of holding a property upon attaining the age of 18. The Settlor / Donor can have the choice of releasing the asset at later date which should be expressly stated in the Trust Deed their intention to do so.

If there is minor Beneficiary named in the Trust, the Trustee will hold the Trust property on Trust for the minor, until the Beneficiary has attained the age of majority or in accordance to the provisions of the Trust.

The Rules against Perpetuity applies to Trust wherein the distribution of assets to Beneficiary cannot occur at too remote a time in the future or accumulation of income for too long a period. In Malaysia, a Trust can continue for a fixed period of up to 80 years specified in the Trust.

Subject to the rule against perpetuities, the duration of a Trust may otherwise determine:

According to the terms provided in the Trust Deed;
If a Trust is created for period of life time, it is based on the lives in being at the time the Trust is created +21 year;
When all the properties have been distributed to the Beneficiary;
When all the Beneficiary consent to the termination in complete agreement.