THE TRUST IS THE BEST LEGAL ASSET PROTECTION INSTRUMENT
The Trust is an institution of the Anglo-Saxon legal system of Common Law that serves to regulate a multiplicity of juridical relationships of a patrimonial nature usefully employed in the world, but, also in Italy from some luster, with greater diffusion in the center-north.
In fact, in terms of protection, protection and separation of heritage, in Italy, more and more is talked about, so much so that in recent years there has been an exponential growth of trust deeds as a suitable legal instrument suitable for this purpose and this as the Italian judiciary now considers the Internal Trust to be fully legitimate (so it is called a Trust established in Italy that has as its sole foreign element the sole regulatory law) which is put in place for a purpose worthy of protection pursuant to Article 1322 of the Civil Code according to the convention of the Hague of 1 July 1985, ratified by our Government with Law n. 364 of October 16, 1989, entered into force only from January 1, 1992, with the title “Ratification and execution of the convention on the law applicable to trusts and on their recognition.
Indeed, for the collective imagination, especially in southern Italy, obviously excluding the experts and some attentive entrepreneurs who are wise to establish separate assets insensitive to executive actions, the Trust is associated with the term “Antitrust”, which has nothing to do with with the first, and is not known as that legal store capable of creating protection for the heritage, making it insensitive to future precautionary actions caused by unwanted or unwanted events.
Purely by way of example and not exhaustive, the needs worthy of protection can be, among many surely the needs: of the family, of a disabled person, of the loved one, to guarantee a dignified and peaceful future to themselves and, if necessary, to also provide for to their own living needs, to ensure sustenance for their children for studies and work, to guarantee the generational transfer of assets and family businesses without trauma and tax-free and / or for the pursuit of a commercial or philanthropic purpose or purpose, and finally for the protection of the minor, of the incapable, of the disabled for the next day, or when he will remain alone.
For the protection of these purposes, the legal instruments that our system has are the destination Constraint pursuant to art. 2645 /
On the subject, to tell the truth, it must be said without pretense, that in our country, in the context of vocational professions, there is arrogance, presumably to conceal misinformation, this because the phenomenon of trust in Italy is relatively young and has been the prerogative of wealthy northern lords to protect large heritages to be sent to their descendants without having them dispose of them because perhaps prodigal or incapable or, on the other hand, to screen assets and availability of dubious origin resorting in the latter case to Foreign Trusts.
In our opinion the Trust is for everyone and not only for rich gentlemen, to segregate and protect licit and non-illicit assets and for deserving and not repugnant purposes and to this, we experts,
On the part of those who should emphasize the subject, there is abundant improvisation in dealing with the topic of the institute, so much so as to discourage it because it is considered by some to be inadequate or even elusive for the subject who would intentionally set it up by proposing more customary institutions of separation and protection of the heritage in the belief that these respond better than the Trust.
Nothing more erroneous. The opposite is true. The Trust succeeds better than any internal legal institute of separation of the patrimony this as flexible and ductile only because established by the subject that disposes of it (for this said settler) for the protection of its interests, provided that they are worthy. The customary internal juridical institutes for the protection of the heritage mentioned above do not allow this at all and are valid for what they strictly foresee, and nothing else.
The undersigned study deals with asset protection programs and the management of fiduciary assignments carried out through the use of the Trust and administration of the Private Trust Company.
It performs the functions of professional Trustee for the implementation of fiduciary negotiation programs of various types such as the Trust Holding, the Family Protection Trust, Patrimonial Trust, Generational Trust in function of family pact, Guarantee Trust, Divorce Trust, Cohabitation Trust, Settlement trust, purpose trusts, concordat trusts, commercial trusts, charitable trusts, and others, all these activities, all of which cover and protect personal and real estate, personal and corporate assets, internal and external, which usefully serve purposes worthy of legal protection .
It is a widespread opinion that the instrument par excellence that protects family assets for the family is that of the Patrimonial Fund pursuant to Art. 167 of the Italian Civil Code. Nothing more erroneous. It has never been and never will be, especially today, in light of the last rulings of the Court of Cassation, for which the goods therein are directly mortgaged without warning from Equitalia and from that creditor whose reasons derive from the obligations assumed by the debtor holding the Fund or contracted for the needs of the family. That is to say, briefly, that the tax debts and corporate debts are considered as family debts and as such, as stated by the Civil Code, must be satisfied by the family assets. Like it or not, that’s true. The judgment of the supreme court is not at all reprehensible but states a principle of law, the one just mentioned.
For these reasons, but not only, it is believed that it could be useful to illustrate to the Salento entrepreneurs but even before the fathers of the family the peculiarities of this institute and push for the introduction in the facts of business management but also in the family ones.
If, on the one hand, these arguments, yesterday, did not seem of relevant interest because they were considered pleonastic, on the other, today, interest becomes alive sometimes only by listening to the reasons and opportunities that these programs reveal.
However, the propensity to employment is all the greater when the entrepreneur over 50 or 60 is part of a family unit to which to guarantee in complete safety, especially for the time in which he will not live, a dignified and serene future.
Below are just a few of the most important issues for which the trust is enlightening:
1. The generational transfer of the family business;
2. The protection of the patrimony for the family and/or for the minor, incapable, disabled only;
3. The new non-legal instrument for the reorganization of the company in crisis due to over-indebtedness;
• For the generational succession of the family business.
It represents an important and crucial event in the life of the company which often depends on its survival.
Italian entrepreneurs over 60 represent about 60% of the total universe of companies, which leads to believe that in the coming years they will necessarily be committed to dealing with the transition. 70% of whom want to continue the family business.
The worrying figure that should make us reflect is the low percentage, primarily 25%, of the survival of companies that reach the second generation of entrepreneurs with 15% of these reaching the third generation. Without 100, then the total number of companies, 25 are in the second generation and 3.75 in the third.
From what has been said we will present and deepen the theme in order to be able to choose the safest of the two legal institutions that the legal system offers for the generational handover of the family business: the Family Pact ex L. 55/2006 and the family Trust ex L 364/1989.
• The protection of the patrimony for the family and/or for the minor, incapable, disabled only
A prudent entrepreneur, as far as possible, must put in place a good program of protection and protection of his family nucleus in a future perspective and as a source of financial benefits for the life needs of himself, of the family and of future generations or for one purpose and / or for a program of protection and protection of corporate or corporate assets considered strategic.
• A new non-legal instrument for the reorganization of the company in crisis due to over-indebtedness;
A new instrument for the extra-procedural composition of the corporate crisis is the concordat or liquidation trust, according to the company cases, which is making an increasingly large application space in the context of out-of-court solutions to the crisis of the company and of the composition with creditors, in reference to which the institution in question can explain its effects especially in relation to the possibility of establishing a segregation of company assets made available by the same company or by third parties with an additional guarantee for the exact fulfillment of the obligations assumed by the entrepreneur in a state of crisis.
The main effect of the Trust lies in determining the armouring of the company assets, transferred under the protection of this institution, making them untreatable by creditors, therefore not subject to enforceable and precautionary executive actions, so that they do not see the assets depleted while pending production and satisfaction of the emergency program from the corporate crisis, which will be shared by creditors in the meantime once they have secured their credit by turning their status into a beneficiary of the Trust and not just a simple unsecured creditor.
For what has been said so far, event or seminar days are strongly recommended in which to better explain the opportunities and peculiarities offered by the institute in question.
Finally, the discussion of domestic asset protection trust is considered useful and necessary.