Trusts and equity funds
The law firm Cecatiello offers its clients advice and assistance for the creation and management of equity funds and trust. The professionals of the Law Firm Cecatiello, thanks to the experience gained in family law and civil law more generally, are able to better advise customers in choosing the most effective tool for their needs.
Patrimonial Fund and Trust are both characterized by the existence of a patrimony destined for a purpose and carry out the separation of it from the remaining patrimony of the owner, ie the so-called “segregation”. In the trust there is the destination constraint to a specific purpose that for the patrimonial fund are "the needs of the family" while for the trust it is "an interest worthy of protection". The patrimonial fund presupposes a legitimate family founded on the marriage and although it is possible to constitute it before the celebration of the marriage, its effectiveness is subordinate to such event. In fact, only spouses or those who become such can constitute it, and only these subjects can benefit from it. When the status of a spouse fails for any cause of termination of the conjugal bond, the effects of the patrimonial fund cease, except in the case in which there are minor children.
So without marriage there is no patrimonial fund, while there can be trusts in every family situation to protect interests worthy of protection.
The trust can be set up to meet the needs of families not based on marriage, but also for those families consisting of people in a widowhood with minor children or unmarried or unmarried children with natural children, as well as for the so-called extended families, especially in consideration of the continuation of the obligations of the parents to maintain the offspring regardless of the bond with the other parent and well beyond the age of children.
The purpose of the patrimonial fund can be realized with a trust whenever the beneficiaries are different from the married couple with or without children.
The patrimonial fund lasts as long as the marriage (subject to the ultractivity in the presence of minor children, while in the trust the final term of duration is set by the settlers in absolute autonomy and sees as the only limit that provided by the law referred to in the trust act
If therefore the duration of the conjugal bond for the equity fund, it is unavailable for the parties that, if they can reasonably foresee only the possibility of dissolution following the request for annulment of the marriage or divorce, they can not provide for the termination natural, such as death: different instead for the trust whose duration is remitted to the will of the settlor or those in the trust.
The capital protection given by the fund is limited: if it is true that the assets conferred in the fund can not be the subject of forced enforcement for debts that are not related to the needs of the family, it is equally true that it is necessary to demonstrate - and the burden of the trial weighs on the spouses - that the creditor was aware of the fact that such debts had been contracted for needs other than family.
The protection guaranteed by the Trust, thanks to the segregation effect, is instead total, since not only the settlor's creditors can not act against the trust's assets (except in the case of the successful revocation of the deed with which the settlor endowed the trust fund, if the conditions exist), but neither can the trustee's creditors in any way claim for his debts on the assets of the fund because those assets do not merge with his assets. Finally, even the creditors of the beneficiaries can not act on the assets or income if the trust is discretionary. The trust then requires less stringent forms than the patrimonial fund which, if it is constituted by the spouses, must necessarily take the form of the public deed and, if carried out by a third party, can also be arranged by will. On the other hand, the trust institute, although having to be in writing, can take the form of private writing, and it is the one that nowadays professional practice has adopted for internal trusts.
Armando Cecatiello, Lawyer Milan and Rome.
Law Firm Cecatiello, specialized in family law, matrimonial lawyer, divorce lawyer, minor maintenance / custody.