Creation of a Trust

Creation of a trust in India involves a structured legal process and adherence to the principles outlined primarily in the Indian Trusts Act, 1882, for private trusts, along with specific requirements for public or charitable trusts under various laws.

Determine the Purpose of the Trust

The first step in creating a trust is to clearly identify its purpose. Trusts can serve a wide range of objectives, including asset protection, estate planning, providing for minors or individuals with special needs, or charitable purposes.

Choose the Type of Trust

Decide whether the trust will be a private trust, benefiting specific individuals, or a public charitable trust, benefiting a section of the public or furthering a charitable cause.

Select the Trust Parties

• Settlor/Trustor:

The individual or entity that establishes the trust and transfers assets into it.

• Trustee(s):

The person(s) or institution(s) responsible for managing the trust assets according to the trust deed and for the benefit of the beneficiaries. Choosing a trustworthy and competent trustee is crucial.

• Beneficiary(ies):

Those who will benefit from the trust. In a private trust, these are specific individuals; in a charitable trust, this could be the public or a segment of the public.

Draft the Trust Deed/Document

A trust deed is a legal document that outlines the terms and conditions of the trust. It typically are:

• • The name and objectives of the trust
  • Details of the settlor and trustees
  • Beneficiary details (for private trusts)
  • A clear description of the trust property
  • The powers and duties of the trustees
  • The rights of the beneficiaries
  • The tenure of the trust, if not perpetual
  • Any other terms governing the operation of the trust

The trust deed needs to be carefully drafted, often with the assistance of a legal professional, to ensure clarity and compliance with legal requirements.

Transfer Property to the Trust

For a trust to be valid, the settlor must transfer the title of the property (which can be movable or immovable) to the trustee(s), to be held in trust for the benefit of the beneficiaries. This act signifies the settlor’s intention to create the trust.

Registration of the Trust

• While private trusts are not always required to be registered, the registration of a trust can provide legal evidence of its existence and terms.
• Public charitable trusts must be registered under the Indian Trusts Act, 1882, or relevant state legislation, which often requires submitting the trust deed to the local Registrar of Trusts. The specific registration process can vary from state to state.

Obtaining Necessary Approvals and Identification

• Trusts, especially charitable ones, may require obtaining certain approvals or registrations for tax benefits, such as under Section 12A and 80G of the Income Tax Act.
• Trusts must also apply for a Permanent Account Number (PAN) and comply with other regulatory requirements.

Legal and Professional Assistance

Given the complexity of trust laws and the importance of ensuring that a trust operates as intended, it is advisable to seek legal and possibly financial advice when creating a trust. Professionals can help navigate the legal requirements, draft the trust deed to accurately reflect the settlor’s intentions, and ensure compliance with all applicable laws and regulations.