Month: September 2022

Understanding a Family Trust

Setting up Family Trusts

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A Family Trust is created through a legal document called a Notarial Deed of Trust or Notarial Deed of Family Trust. This document is prepared only by a Notary Public who is a Legal Practitioner. A Notarial Deed of Trust is lodged and registered at the Deeds Registry Office in terms of the Deed Registries Act Chapter 20:05. The document sets out all the terms governing the trust in relation to founders, trustees, beneficiaries, objectives and all issues to do with the functioning of the trust.

Requirements

The following are the key requirements in registering a Family Trust or any other Trust for various purposes and objectives. A Trust is required to have:

  • The proposed name of the Family Trust
  • Founder(s)
  • Trustees
  • Beneficiaries and
  • The objectives of the Trust.

A proposed or suggested name of the Family Trust is required. In most cases the founders propose the family surname for example Moyo Family Trust.

Founder

A Founder is the person desirous of creating a Family Trust. A Founder can be one person or more. The full name of the Founder as appears on identity documents must be provided as well as their date of birth, identity number and addresses. Usually Founders are parents or a relative who creates a Family Trust for their children and grandchildren as well as those not yet born, to benefit from certain donated properties. A Founder is entitled to make a donation to the trust   and it can be immovable or movable property. If the Founder donates an immovable property to the Trust, transfer of rights is done through conveyancing from the individual names of the Founders to the trust. The immovable property is then registered in the name of the Trust not in the individual names of the beneficiaries. A Founder can also be a trustee.

Trustee(s)

A Trustee is a person appointed and authorised by the Founder to manage property on behalf of the beneficiaries. The property does not belong to the Trustees but the Beneficiaries. It is required that a Trust must have a least two Trustees at any given time. In most cases the Founders become the Trustees or they can appoint a trusted relative or any other person who may be a professional or has knowledge in property management. It is advisable to appoint as Trustees people who own properties and have knowledge in running a business to ensure the efficient management of the Trust property. The full names of the Trustees are required, date of birth, ID number and physical addresses. Appointment, tenure, removal, remuneration and duties of the Trustees will be stated in Trust Deed.

Beneficiaries

Beneficiaries are people who are intended to benefit from the Trust. Property is donated by the Founders to the Beneficiaries but is managed by the Trustees on behalf of the Beneficiaries. In most cases the Beneficiaries are children of the Founders or any other relatives. Grand children may also be listed as Beneficiaries as well as the unborn children of the Founders. Beneficiaries can be as many as the founders desire since there is no minimum or maximum limit. If the Beneficiaries are known, their full names, date of birth, ID numbers are required. If the Beneficiaries are minors the names and identity details of the guardians are required. The terms and conditions on how the Beneficiaries will benefit will be stated in the Trust Deed.

Objectives

Objectives of the Family Trust are also required when registering a Trust. The objectives must be lawful. The objectives differ depending with the intentions of the Founders. Usually it is the love and affection that the Founders have for the Beneficiaries. It is more often the role of the Notary Public (Legal Practitioner) to formulate the objectives with the instructions of the founder. Another requirement is the registration fee required by the Deeds Office which is gazetted by the government as well as the legal fees for the Notary Public for preparing the document.

Benefits

There are a number of benefits that comes with registering a Family Trust, which are:

  1. A trust has perpetual succession. This means that a Trust does not die. Upon the death, demise or incapacitation of the Founder or Trustees the Trust is not liquidated but continues to operate until dissolved by the Trustees of the time being in accordance with the provisions of the Trust Deed.
  • There are tax benefits. A Trust enjoys some tax exemptions for example when the Founder passes on, property registered in the Trust is not distributed under the Deceased Estates Succession Act where the government calculates taxes against the total value of the Estate. The property survives as if nothing happened.
  • A Family Trust also prevents inheritance wrangles and disputes between children and relatives. The property registered or donated in a Trust is not subject to distribution upon death of the Founders. The property remains as if nothing happened.
  • Property belonging to a Family Trust is also protected from creditors in the event that the Founder has passed on. Creditors cannot claim a property registered in a Family Trust.
  • There is protection of family property as it is managed by Trustees on behalf of the Beneficiaries or children. A Family Trust can benefit future generations. No child can sell or destroy property belonging to the Trust. A Family Trust also prevents abuse of property and funds as it is managed by Trustees. Beneficiaries can equally enjoy the profits accrued in a Family Trust.
  • A Trust, through Trustees, is considered by the law as a separate legal entity. This means that even where there is a legal dispute be it contractual, criminal or matrimonial against the Founder or Trustees, the property in the name of the Family Trust cannot be regarded as belonging to the Founder or Trustees. They are treated separately except in exceptional cases provide for by the law.
  • A Trust enjoys contractual rights. This means that a Trust can enter into valid contracts with individual or entities. A Trust can also operate and own a company. A trust can be a shareholder in any business and is allowed to trade for the benefit of the Beneficiaries. A Trust can also own or dispose immovable or movable property.

This article is published for information purposes only – seek professional legal advice from an attorney.

Certificate of Non-Marriage: Requirements

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WHAT IS IT?

A Certificate of Non-Marriage is a confirmation of a person’s marital status where a national of a country intends to marry abroad. It is also called a Certificate of no marriage, Certificate of no impediment, or a Single Status Certificate. The Certificate is issued by the Registrar of Marriages certifying that there is no legal impediment to the applicant’s intended marriage. The certificate is valid for six months. It protects foreigners wishing to marry Zimbabweans from the embarrassment and inconveniences of marrying a person who may still be legally married to someone else.

The certificate is obtained from the Registrar of Marriages and remains valid for six months from the date of issue. This means that if the person intending to get married does not do so within the defined period, he or she will have to get another certificate after the lapse of the stated time. Where there is a divorce order a copy of it should also be submitted in which case the Registrar will verify directly with the Court that issued it. In the case of a person claiming not to have been married at all, the Registrar will search the records from the time the person reached the age at which they could legally marry to date.

REQUIREMENTS

IF THE PERSON IS OUTSIDE ZIMBABWE:

  1. Letter of authorisation from applicant (formal letter bearing their original signature)
  2. Copy of the information passport page
  3. Copy of last stamped passport page
  4. Original birth certificate and copy
  5. All documents must be certified by the Embassy of Zimbabwe or nearest Consulate
  6. Original statutory fee receipt from the Embassy of Zimbabwe or nearest Consulate

All original documents need to be authenticated through the Embassy of Zimbabwe or nearest Consulate

IF THE PERSON IS IN ZIMBABWE

  1. Original birth certificate and copy

National identity card or valid passport and copy

This article has been published for information purposes only. For further assistance get in touch with our team of attorneys.

Change of Name Process in Zimbabwe

Change of Name Process in Zimbabwe

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Change of name process is a legal act whereby one abandons  their birth certificate name and assume a new one. The law allows a person to change his or her name, in terms of Section 18 of the Birth & Deaths Registration Act. One can legally change his or her first name, middle name, surname or a combination of all these. The law provides for the procedure and requirements for changing a name. A person may change a name due to various reasons which include but not limited to the following:

  • general dislike of the name preferring a new one
  • desire to assume a unique or celebrity name
  • Spiritual or religions reasons
  • Woman assuming her husband’s surname after marriage (though not compulsory)
  • Assuming paternal surname

Change of First or Middle Name

The law permits anyone to change his or her first or middle name. An application is made to the Registrar General for the change of name and the required paperwork is done. If the applicant is a minor their parent or guardian may apply for the change of name on their behalf. If the Registrar General is satisfied with all the documents required and the statutory fees paid, a new birth certificate reflecting the name change will be issued.

Change of Surname or First Name and Surname

This process is done through a Notarial Deed of Change of Name which is then submitted to the Registrar General to process and issue out new identity documents. A person who wishes to change his or her surname or first name and surname must approach a Notary Public who is a Lawyer, however not all lawyers are Notary Public. A Notarial Deed of Change of Name is only prepared by a lawyer who is a Notary Public.

The applicant instructs the Notary Public who then drafts the deed. The applicant and the Notary Public must sign the deed. The proposed name change must be advertised in the Government Gazette and a local newspaper for a period of fourteen (14) days for any objections. This is done as a safeguarding measure against people who change their name for illegal reasons like fraud or misrepresentation.

If there are no objections to the change of name, proof that the Deed has been advertised together with the Notarial Deed of Change of Name is submitted by the Notary Public to the Deeds Office for registration. There are statutory registration fees required by the Deeds Office.

After registration by the Deeds Registrar, the deed, proof of advertisement and birth certificate is then submitted to the office of the Registrar General upon payment of required statutory fees. If the applicant is a minor child, the Notarial Deed of Change of Name is signed by their parent or guardian on their behalf. If the Registrar General is satisfied with the application, a new birth certificate is issued bearing the new name.

For a woman who wishes to adopt her husband’s surname after marriage, the process is done through an application to the Registrar General. After submitting the Marriage Certificate and satisfying all the requirements the Registrar will issue out new identity documents bearing the new surname.

This article has been published for information purposes only. Seek advice from an attorney.