Widely used abroad as a vehicle for estate and succession planning , the trust is not provided for in Brazilian law. It is a typical instrument of British law and countries that adopt the common law (as opposed to the Roman-Germanic system/civil law adopted in Brazil and in countries such as Italy, Germany, Portugal and France). It allows an individual (Settlor) transmits assets to a third party (trustee) for the company to administer them in favour of certain beneficiaries according to rules defined in a contract (trust agreement/trust deed).
The Settlor defines the scope of the trust at the time of the contraction, i.e. the rules for the management of the assets, their beneficiaries (who may be third parties or the Settlor) and events where there will be transfer (partial or total) of assets to beneficiaries.
There are many situations allowed in this contractual modality, from the management of assets in favor of minor children or legally incapacitated persons, professional administration of assets, management of assets in case of incapacity/interdiction of the Settlor, until the delivery of the assets in the event of death. The trust thus functions as a legitimate legal instrument of succession and estate planning.
Given the lack of regulation on the subject in Brazil, there is a wide use of the trust in other jurisdictions by Brazilians who hold assets abroad. As a result, so that the estate planning can be structured in Brazil, is in the process in the House of Representatives The Bill No. 4.758/20, authored by Deputy Enrico Misasi. The objective is to include in our legal system the "General Fidúcia Regime" to regulate fiduciary property in the national territory.
In justifying the project, Mr Misasi expressly refers to the trust as an inspiring source of the project, in addition to defining as its main objective the segregation of the assets of the parties to the contract through the creation of the assets of allocation, fundamental for the legal certainty of the fidúcia contract by differentiating the assets of the instituter from the assets of the administrator.
The draft law defines the trust, in Article 2, as the "juridical transaction by which one of the parties, called trustor, transmits, under fiduciary regime, present or future assets or rights, to the other, called fiduciary, so that the fiduciary administers them for the benefit of a third party, called beneficiary, or the trustor himself, and transmits them to them or to third parties, in accordance with the provisions of the respective constitutive act" , a structure similar to that of the trust.
The great innovation is the creation of the assets of allocation, pursuant to Article 3 of the project: "The assets and rights transmitted in trust, as well as their fruits and income, constitute fiduciary property, subordinate the powers inherent to them to the restrictions and limits established in the law or in the respective act of constitution". In accordance with Paragraph 1 of the same article, fiduciary property shall last until the implementation of a resolutive condition or advent of a term, both defined in the contract, at which time the assets shall be transmitted to the beneficiaries, as provided for in § 2.
The assets transmitted in trust constitute autonomous assets, not responsible for debts of the trustee, but only for debts linked to fiduciary property, the content of § 3 of Article 3, being legally established the segregation of assets between the parties of the contract and the subject matter of the agreement, except in cases of fraud.
In addition, the fiduciary may not use the assets received in trust to his advantage, and must comply with the rules of the contract and the rules established by the trustor, as in the relationship between trustee and Settlor in the contracts of trust.
Another important characteristic of the fiduciary relationship is the possibility of institute it by unilateral act, with a revocable character or not. It is possible to create it, therefore, through a will, which makes it an important succession planning tool.
Although fiduciary property is already provided for in specific legislation, such as those regulating real estate development, securitization of credits and fiduciary guarantee, the bill would bring significant legal progress through the creation of the Trust contract, which could be used in various ways and with different objectives. This applies both to the management of assets in various situations and to the succession of assets, including extending to the management of the heir's assets in situations where such action is recommended, as currently occurs with the trust.
The bill was received on March 10 in the Finance and Taxation Committee and, after analysis, will proceed to the Constitution and Justice and Citizenship Committee.