查看完整版本 : 轉Trustee問題

tess997 2015-11-10 22:25

請問從New Zealand公司trustee轉到香港公司應點做,有咩手續or文件要做?公司無人識,要新丁我找答案,感謝大家幫忙...

Porkypig1234 2015-11-20 06:13

I would do the followings, in this order...

1. Review the trust instrument(s).  Most trust deeds have specific requirements for removing and/or appointing a trustee.  It is of utmost importance that such requirements are met; or the resignation/appointment might not be valid.  Usual requirements include notice period for a resignation, a trustee can only be appointed by the party vested with such power, consent of certain parties (e.g. the Protector) for an appointment, eligibility to be a trustee, etc.  Just make sure that your proposal of change of trustee meets all of such requirements.

2.  Determine the proper law of the trust (there should be a provision declaring that in the trust deed).  Then look into the relevant legislations to see if there is any applicable constraints that would limit your options.  Again, make sure your proposed change is permitted by the applicable laws.

3.  Do an inventory of ALL trust assets and liabilities; ideally on the date of the change of trustee.  A list of all trust assets and liabilities, with their corresponding fair market value on the date of change of trustee, will be needed.  

4.  Do a list of all the rights and obligations of the trust that are not included in the list of assets and liabilities.  For examples, this should include guarantees provided by the trust, the right to receive certain income in the future that has not been accounted for as an existing asset, being a beneficiary of an insurance policy, agreements/contracts that the trust had subject itself to, etc.  

5.  Effect the change of trusteeship by a "Deed of Retirement, Appointment, and Indemnity".  Have all relevant parties (the outgoing trustee, the incoming trustee, the party with the power to appoint a trustee, the party to give consent of an appointment of a new trustee) to execute the deed.  This deed will state that 1) the outgoing trustee is hereby retired, 2) the party vested with the power to appoint a new trustee is exercising such power to appoint the incoming trustee to be a trustee, 3) the incoming trustee is accepting the appointment, 4) the relevant party is providing its consent to the appointment.  All of these are effective on the date of the Deed of Retirement, Appointment, and Indemnity.

The Deed of Retirement, Appointment, and Indemnity typically contains a provision where the incoming trustee provides an indemnity to the retiring trustee.  This is to ensure that the retiring trustee will continue to be reimbursed for any future expenses and liabilities that might incur because of its involvement with the trust.  How extensive this is will depend on the negotiation of the parties.

The document should also have a provision stating that all trust assets, liabilities, rights, and obligations will be transferred from the retiring trustee to the incoming trustee.  The document should specifically identify such assets and liabilities in a schedule as an attachment (item 3 above).  Same thing for the rights and obligations (item 4 above).

Make sure the document is duly executed by all parties.

6)  Once you have an executed document to evidence the change of trusteeship, the new trustee will have to contact all relevant third parties to transfer the legal title of all the trust assets and liabilities to the new trustee.  

Many practitioners structure a trust in a way that the only trust assets are shares in holding companies.  In that case, you will just have to do a share transfer for such companies.  

Some cases are more complicated when the trustee directly holds "actual" assets.  For examples, the new trustee will have to contact the banks and brokers to inform them of the change of trustee and to have the trust's bank and investment accounts changed to the name of the new trustee; signing arrangements will also have to be changed to ensure that the retired trustee will no longer have signing authority on the accounts.  Real properties will have to be transferred in the Land Registry.  Outstanding loans will have to be novated/assigned.  

7) Rights and obligations will have to be assigned to the new trustee.  So contact the relevant third parties to effect such assignments.

The above is just information for your reference.  It is not legal advice; and I certainly do not take responsibility on any consequences from applying the information.

Good luck.
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