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Can a foreigner & NRI be a trustee in an Indian trust?

Can a foreigner & NRI be a trustee in an Indian trust

There have been questions about creating trust between non-resident beneficiaries and people living in India. Sometimes, it is noticeable that the trust law in India sets up a trust with non-resident beneficiaries for doing some social work. On the other hand, a Trust set up by Indians wants to include a Non-Resident Indian on the Board of Trustees. Trusts are governed in India by the Indian Trusts Act. Most states have adopted this Act, while others have adopted it with some changes. This Act has sections that govern how a trust should work and who can be a trustee. Indian Trust Act 1882 doesn’t specifically prohibit an NRI from being a trustee. However, there are a few indirect consequences that could affect the process. Section 60 of the Act provides that any person who has been domiciled outside India or an alien enemy, i.e. a non-resident of India or a person from a state at war with India, cannot be a trustee of an Indian resident trust.

What is trust and trust registration?

It can be considered for any trust registration for the Trust with non-resident beneficiaries as a binding agreement between a trustor, a trustee, and a beneficiary. There are three parties involved in the trust registration listed in the trust deed or agreement. A trust is created when a trustor transfers an asset or Property to a trustee for the benefit of the beneficiary, who is usually a third party. The relationship between the parties is important for the definition of a trust. The Indian Trusts Act of 1882 defines a trust as a relationship between a trustor and a trustee to hold specific advantages for the beneficiary as per the trust law in India. The Trust with non-resident beneficiaries, according to the legal design, is the owner of the Trust with the relevant Property to the relevant Trustee. The purpose of a trust is to ensure that the trustor’s assets are distributed among certain beneficiaries according to the terms of the trust deed. All registered trusts in India fall under the Indian Trust Act of 1882, which also makes the legal requirements simpler.

Key Stakeholders in the Trust Formation Procedure

There are some of the important key holders for the Trust, with non-resident beneficiaries following the trust formation procedure. It can be noticed that the Trust has an increase in stakeholder involvement. Your stakeholders will have faith in your vision and abilities and be more willing to attend meetings and brainstorm, give feedback, and provide regular support as per the trust law in India. These are three parties involved in the Trust with non-resident beneficiaries for the trust registration in India:

Trustor

The Truster can be that person who usually establishes the Trust with non-resident beneficiaries through typically the owner of the assets or the immovable Property in a trust placed in the Trust as per the trust law in India for the Trust under the Indian Trust.

Trustee

It is essential to understand that the recipient of the Trust may be the legal administrator. A legal administrator might be an individual or substance that keeps up with and controls the Trust with non-resident beneficiaries as well as resources kept up with and managed by the legal administrator for the trustors and the Trust’s name & advantage of the creation of a trust.

Beneficiary

The beneficiary can be considered a person for whom it has been created. They also intended for the recipient to take benefits from the assets, or any property held within the Trust. The beneficiary can also act as the third party to be known for both the trustor and other trustees and who are entitled to receive the benefits arising from the terms and conditions of the Trust with non-resident beneficiaries by opening a bank account.

Importance of Trust with non-resident beneficiaries in India

For those people who are NRI to deal with Trust with non-resident beneficiaries to set up a trust formed in India for holding the immense importance for any trust through its structure, which allows the individuals to transfer the personal ownership of their assets to a separate entity which is also known as the family trust that has been managed through appointed as a trustee. There are also several other benefits to creating a Trust with non-resident beneficiaries, which include tax saving, asset protection, wealth transfer, and seamless & efficient management. Establishing a trust allows NRIs to transfer their assets to their designated beneficiaries, reducing the likelihood of family disputes or difficulties in the estate distribution process. In addition, trusts allow for effective asset management in India. Trust with non-resident beneficiaries can appoint family members, friends, or professional trustees to manage the Trust’s activities, ensuring proper upkeep, use, and development of assets. Another important consideration for NRIs is estate planning and wealth transfer. Also, without any planning for the transfer of the estate, transferring assets to beneficiaries can be complicated, time-consuming, and subject to litigation.

Reasons for Trust with non-resident beneficiaries in India

Trusts provide a roadmap for the transfer of assets, ensuring peace of mind and maintaining family unity. In this detailed analysis, we will explore some of the reasons why you should consider establishing a trust law in India. There are the main reasons for Trust with non-resident beneficiaries comply with the trust law in India:

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Tax mitigation for NRIs

Tax planning is an essential part of NRIs’ financial management. Establishing a Trust in India can offer effective tax mitigation solutions for NRIs as well as their beneficiaries. One of the main reasons why a Trust with non-resident beneficiaries understands and plans for a private family trust is the levying of inheritance tax, estate duty or death tax. Trusts offer ways to reduce tax on inherited Property that cannot be said in the individual’s name but in the family’s name as Trust beneficiaries, which can avoid clubbing of Personal Income. By transferring an inheritance to the Trust for the individual, NRIs can also reduce the inheritance tax of their resident country by distributing the Income generated from the trust assets among several beneficiaries.

Risk management Tactics

One of the most important aspects of asset management as an NRI is safeguarding your assets from legal and financial risk for the Trust with non-resident beneficiaries. Establishing a Trust in India provides a strong solution to protect your assets. When assets are transferred to a Trust, they are kept separate from personal ownership. This means that there is less chance of legal action or creditors taking possession of your assets. This separation ensures that your assets are protected from litigation or unexpected financial commitments as per the trust law in India.

Efficiency of asset management

Managing the assets for the Trust with non-resident beneficiaries in India and managing assets abroad can be difficult. Trusts can be helpful institutions for a non-resident to manage the assets of the Trust effectively, and also through consolidation of your assets into a trust allows you to have a single place to manage and control the trust assets. This makes it easier to oversee and coordinate your assets, allowing you to make better decisions and reduce administrative burden.

Planning of the estate

To build a trust as a part of estate planning for NRIs who have assets in India, a trust allows you to make strategic decisions about how to distribute your wealth and ensure a smooth transfer of your assets related to the Trust with non-resident beneficiaries to your selected Trust with non-resident beneficiaries. The specific instructions within the trust document allow you to distribute your wealth in a way that is in line with your intentions, your beneficiaries’ needs, and any special circumstances.

Legal Compliance

Legal compliance is required to deal with the trust with non-resident beneficiaries, particularly when it comes to asset ownership and transfers. Trust can help you comply with Indian laws and rules as per the trust law in India. A trust is considered to be a legal entity that acts as the legal entity that holds assets for the benefit of the beneficiaries, and also, through transferring assets into a trust, a non-resident Indian can make sure that he or she complies with the applicable legal requirements regarding the ownership of assets and the registration of such assets, such as real estate or securities.

Types of Trusts Registered in India

There are some types of trusts registered in India as per the trust law. In India, trust categories have been divided into two groups based on the requirements and goals of the Trust’s beneficiaries who are not residents. As a result, we may use the examples of public trusts, which are categorized as charitable purpose and religious trusts, and private trusts as an institution, which are subject to the rules of the Indian Trusts Act of 1882 for the Trust with non-resident beneficiaries. The 1882 Indian Public Trusts Act, the 1863 Charitable and Religious Trust Act, and the 1950 Bombay Public Trust Act are a few of the significant statutes that influenced public Trust in India. The following categories of trusts with beneficiaries who are not residents of India are registered:

Private Trusts

A private limited trust is a trust that is set up to provide services to a particular person, a family or a close associate. A private limited trust can also have beneficiaries who are closely associated with the Trust’s founders by the Trusts Act 1882 for Trust with non-resident beneficiaries as per the trust law in India.

Public Trust

An example of a trust that must be created for the public good is a public limited trust. The Religious Endowments Law of 1863, the Charitable and Religious Trust Law of 1920, or the Bombay Public Trust Law of 1950, as well as the charitable and religious trusts, govern the institution of Trust as private limited companies for the Trust with non-resident beneficiaries of a new trustee. Typically, it is established for charitable, educational, or religious purposes.

Public cum Private Trust

The purpose of this type of Trust is to become a trustee of a public trust and a private trust as per the trust law in India. The Trust can use its Income to benefit the public and certain individuals or families. A public cum private trust can include a mix of public and private trusts, with non-resident beneficiaries becoming one of the trustees.

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Regulatory Obligations of Trust with non-resident Beneficiaries

Trust must be the result of a settlement between the Beneficiary and the Settlor for the Beneficiary’s beneficial interest in the Property and also there are regulatory obligations that have to be followed for building Trust with non-resident beneficiaries. In a Trust, the owner of the Property transfers the administration of the Trustee’s trust property to the beneficiary.

  • Registration Compliances include trust deed registration, PAN, TAN, and FCRA registration through accepting RBI approvals, and other GST registration compliances.
  • Filing of the Income-tax returns for any trust with non-resident beneficiaries under the Form ITR-7, also known as the annual return of Income, must be filed annually. Form 10B, on the other hand, is filed annually by charitable or religious trusts or institutions that have been registered under section 12A or who have filed an application for registration under section 12A by filing form 10A.
  • Reporting for the foreign contributions for every Trust with non-resident beneficiaries of the entity receiving foreign contributions is required to register under the Foreign Contribution Regulation Act, 2010 and to submit a report, certified by a chartered accountant, together with an income statement, a statement of expenditure, a statement of receipts and payments account, a balance sheet and an annual statement of the separate account.
  • Filing for the TDS return and also for the issuance of the TDS certificate in case the Private Trust deducts tax at source to pay salaries to the employees or employees they must provide certificates of tax deduction to the employees on whose behalf the TDS was collected for the Trust with non-resident beneficiaries. This must be done within one month from the closure date of the financial year.
  • Publish the accounts in the newspaper for any trust whose annual Income exceeds one crore or whose receipts have been generated through the trust property. Then, it can be useful for the Trust to publish the account in the newspaper.
  • Filing for any GST returns for any of the trusts as per its annual Income to present the GST monthly returns on a quarterly or monthly basis for the Trust.
  • Auditing the accounts for the Trust with non-resident beneficiaries that have been created to transfer the benefits or the proceeds of the Trust. So, it can be estimated that the total Income of the Trust or any other institution is as per the trust law in India.
  • There are also other documents required for trust deed registration are mentioned below in bifurcation:

1. Stamping of the trust deed paper

2. Copy of self-attested PAN and other ID proof details.

3. Signature on all pages of the trust deed.

4. Proof of the registered office address of the Trust.

5. No objection certificate from the landowner with identity proof.

6. Passport size photographs.

Statues dealing with Trust with non-resident beneficiaries

The primary trustee, the settler of the trust registration authority in India, is the Registrar of Trusts. Their function is to keep a database of all trusts registered in India. Private trusts are registered under the Trusts Act of 1882. Public trusts, on the other hand, have no uniform governing act. In India, public trusts need to be registered with the competent state authority as per the relevant state act and the trust law prevailing in India. There are some of the significant regulations dealing with the Trust are mentioned below for better insight:

Income Tax Act of 1961

This particular act aligned with the Trust with non-resident beneficiaries which laid down the legal framework for registration and administering the private Trust and it describes the rights, duties, and processes that apply to private trust registrations as per the income-tax act.

Indian Trust Act 1882

The particular acts encapsulate a legal framework with the Trust with non-resident beneficiaries as per the legal regulations for registering and administering the private Trust, which outlines the rights and responsibilities.

Societies Registration Act of 1860

It has not been directly governed by trust registration, and this act regulates the formation and functioning of society’s involvement in charitable institutions for making charitable trusts, scientific, literary, or any other artistic activities. Societies which often work for the trusts and engage in similar endeavours.

Challenges in dealing with Trust with non-resident beneficiaries

Several issues arise when managing Trust with non-resident beneficiaries, particularly when it comes to establishing and sustaining Trust. These issues can be complex and multi-faceted due to the variety of legal, tax and communication issues that may arise. Below are some of the key challenges and considerations:

Regulatory difference & Legal

Some laws govern the Trust and other estates can be done very significantly from one jurisdiction to another jurisdiction. The Trust with non-resident beneficiaries may be governed by different laws and jurisdictions, which can increase the complexity of the Trust’s administration require specialist knowledge and result in increased legal and compliance fees.

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Implication of taxes

It can be challenging to tackle the tax consequences related to the Trust with non-resident beneficiaries. The Income that has been earned from foreign trusts is subject to tax treaties, tax rates, and other regulations in various countries. This complexity makes it difficult to plan and distribute assets tax-efficiently. Trustees need to follow the tax laws of several jurisdictions to avoid fines and make sure beneficiaries do not run into unexpected tax charges.

Communication of barriers

Effective communication has been very challenging in maintaining Trust and managing relationships for Trust with non-resident beneficiaries. There are also time zone differences, languages, and cultures that can make it difficult the communicate. This can lead to miscommunication, delays in making decisions, and a sense of being ignored or ignored by the Trustee.

Information access

The access to information for the Trust with non-resident beneficiaries to manage the information that is out of the box regarding the Trust’s management and performance and also very important to provide regular, in-depth updates in an easy-to-understand and there are also some ways to keep beneficiaries up to date and involved, but this can take more time and planning, particularly when you are dealing with different jurisdictions legal requirements.

Differences within culture

There are also differences in the cultural influence of trust, and estate planning can be very wide. There might be a consideration for the standard practice in one country that could be viewed in another with suspicion or for any confusion in another, and it is also very important to recognize and respect these cultural distinctions to build and sustain relationships with non-residents.

FAQ’s

  1. Who can be considered the Trustee of a trust in India?

    It can be for any person who is holding any property which may be a trustee but where the rust that involves the exercise the discretion and also that person cannot execute it unless he is competent to contract.

  2. Who cannot be the person appointed as Trustee?

    The person who cannot be a trustee for the person disqualified for any alien enemy, insolvent persons, the person who is domiciled in India or abroad, married woman and also a minor.

  3. Can any India trust be considered as trust work for India outside?

    There have been exemptions towards activities in India that remain intact and in the case of the clause in the trust deed empowering the Trust to have activities outside India, there can be no impact.

  4. Who can be considered the best person to appoint as a Trustee?

    Any good trustee could be any person for someone honest and also be trustworthy because they will have a lot of power under your trust document. The person has to choose to act as the trustee and should be financially responsible for the trust with the beneficiaries of non-residents in India.

  5. What can be the maximum number of trustees in a trust in India?

    There can be no maximum number of trustees in a trust in India, and there can be a minimum number of necessary trustees to form a trustee.

  6. Is it possible for the Trustee to also become a beneficiary?

    It is also not possible for the Trustee to become a beneficiary for any individual to occupy both the roles as the Trustee and the beneficiary, as well as other arrangements that provide them with control over their assets while planning for future distribution.

  7. What can the validity of trust registration be?

    For the final registration for five years, the Trust also wants to apply for the renewal of registration at least six months before the expiry of 5 years of registration.

  8. What are the three duties of a trustee for the Trust with non-resident beneficiaries?

    There are three duties of a trustee for the Trust with non-resident beneficiaries to apply prudently out of the terms of the Trust, be loyal to the Trust, and give the Trust their personal information related to the account to the beneficiaries of the Trust.

  9. What can the legal orientation of a trustee for the Trust with non-resident beneficiaries be?

    The legal orientation of a trustee for the Trust with non-resident beneficiaries as any person or any organization which holds the legal title of any asset or group of assets for any other person called the grantor through possessing the legal title granted through Trust with non-resident beneficiaries.

  10. Is it possible for any trust to work outside India?

    There can be exemptions towards the activities that are carried out in India, which have to remain intact in the case of the clause in the trust deed that empowers the Trust to have activities outside India for the Trust with non-resident beneficiaries.

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