Swiss Advisors 1973
Protection and generational handover: the entrepreneur's legal safe.
Origins of the Trust
The Trust, an exquisitely "British" instrument, has distant origins, the result of a flexible and pragmatic legal system based on the Anglo-Saxon common law. It was used in the past by rulers and nobles who gave up management of their properties while on dangerous, far-off missions. It's said that the origin of the trusts dates back to the year 1000, when landowning knights, before leaving for their crusades, would transfer their family assets to noble brothers, to use them in the men's absence, to support their wives and families. Sometimes, while a knight was away, the noble brothers would decide to use the goods for themselves, depriving the knight's family of all wealth. In cases such as this, an appeal was made directly to the King to return the goods and properties to the family. All this, of course, according to the literary tradition of trusts.
The modern origins of the Trust lie in the Middle Ages, in the wake of the Romanistic concept of trust. Even back then you could see the phenomena that would today be considered a trust: often the land was entrusted to a holder who worked it for the benefit of a third party to achieve certain objectives. This mechanism was intended to circumvent the heavy feudal taxes imposed on the inheritances of real estate, or to allow ecclesiastical groups who had made a vow of poverty to hold, albeit indirectly, ownership of real estate from which to derive the consequent benefits.
In the English juridical experience of the common law, the trust arose, in fact, as a means to overcome the limits that the English feudal legal system imposed on certain subjects, or in the use of institutions for the transfer of ownership of real estate in favor of a third party trustee who was obligated to transfer any revenues to the first owner and, upon the latter's death, to transfer the assets back to the person or persons indicated to him. The effect of this transfer was that the third parties became the owners of the property in the eyes of the law, but the legitimate title to the property was retained for the transferor's beneficiary and any other named beneficiary.
In non-Anglo-Saxon countries, the Hague Convention signed on July 1, 1985 and introduced by European states and Switzerland in the following years, proved a crucial step in the use of the institution of the Trust. The purpose of the Convention was to make an institution of ancient knowledge and of fundamental importance for common law systems usable even in countries with different legal traditions to which the aforementioned was fundamentally unknown.
The Hague Convention entered into force in different countries at different times and via different methods. For example, it was signed on October 16, 1989 in Italy, the second country to introduce the Trust after England, while in Switzerland it entered into effective on July 1, 2007.
The Trust is a legal instrument through which the settlor assigns assets to another person, the trustee, who has the obligation to manage them in the interest of specific beneficiaries or a category of beneficiaries or for the realization of a purpose.
Its versatility, an inherent character of the Trust, makes it a particularly apt tool for estate and inheritance planning, able to adapt to multiple purposes related to the family and business sphere.
The main objectives of the Trust:
- Protection
- Flexibility
- Governance
- Assurance
- Continuity
- Confidentiality
