Bankruptcy

[EOS-5D]

Hello All

 

A very dear friend of ours is in a bit of a pickle.

 

She separated from her husband and he forced her to sell the family home about 18 months ago.

 

They had a lot of debt between them, which was built up during the marriage.

 

She has care of their son and put the £10,000 which she got from the sale of their house in s trust fund for her son.

 

She is under a lot of pressure from her creditors for money.

 

She is considering going bankrupt, but is wondering if the £10,000 which she put away for her son will be taken away

 

Many thanks in advance

 

 

EOS-5D

[martin2006]

This was a response to a similar question from 2011, albeit not on this forum, hope its useful

 

Strictly speaking trust moneys actually belong to the trustees of a trust in name only and the trustees hold them on behalf of the beneficiaries, who are entitled to what is known as beneficial ownership. The trustees have a duty to use the assets for the benefit of the beneficiaries, as the name suggests. Assets held by a bankrupt as trustee are specifically excluded from his bankruptcy estate by section 283(3) of the Insolvency Act 1986.

 

The circumstances under which a trustee in bankruptcy could attack a trust set up by a bankrupt in favour of his children or other third party would be if the trust was a fraud or sham or set up with the deliberate intention of transferring his assets out of the reach of his creditors; or if the bankrupt transferred his assets into it when he was insolvent or he became insolvent as a result of such a transfer.

[Andyorch]

Thread moved to the appropriate forum.

 

Regards

 

Andy

[dx100uk]

What debt does she have?

 

Dx

[Ruleoflaw]

This was a response to a similar question from 2011, albeit not on this forum, hope its useful

 

Strictly speaking trust moneys actually belong to the trustees of a trust in name only and the trustees hold them on behalf of the beneficiaries, who are entitled to what is known as beneficial ownership. The trustees have a duty to use the assets for the benefit of the beneficiaries, as the name suggests. Assets held by a bankrupt as trustee are specifically excluded from his bankruptcy estate by section 283(3) of the Insolvency Act 1986.

 

The circumstances under which a trustee in bankruptcy could attack a trust set up by a bankrupt in favour of his children or other third party would be if the trust was a fraud or sham or set up with the deliberate intention of transferring his assets out of the reach of his creditors; or if the bankrupt transferred his assets into it when he was insolvent or he became insolvent as a result of such a transfer.

 

 

Martin,

 

 

Your answer is perfectly competent when it applies to bankruptcy, ie when the court has permitted a bankruptcy and the official receiver is appointed to use his/ her powers, notwithstanding not having a bankruptcy/ restriction clause (as below).

 

 

Non bankruptcy scenario, ie Creditors

 

 

Hello EOS,

 

 

Yes trustees have a nominal title as they only hold the assets but the assets are protected by a trust for the objects: ie beneficiaries. It also means the creditor should be making contact the trustee (The creditors may be committing a criminal offence if they're harassing you friend or the trustee). In other words the trustee has title to control the assets, the beneficiary/ies has/ have nothing to take until the point the trustee transfers the assets/ money to them, which is why beneficiaries merely have an equitable interest. A trust must be fully constituted however, ie transferring assets from the owner to the trust (held on trust). The formalities to fully constitute a trust is by a deed: s.53, Law of property Act (which gives the trustee a legal interest, nominally only). It's the trustee who has responsibility for the 10k and the assets therefore. The law even protects bankrupt trustees from his own creditors: Recognition of Trusts Act 1987, Article 2 of the Schedule, no doubt to benefit the innocent beneficiaries and trust assets.

 

 

Direct the creditors to the Trustee. Say, deal with the trustee. If they harass the trustee, they also have their own powers: Trustee Act 1925 (i believe)

 

 

Bankruptcy scenario

 

 

If you friend goes bankrupt, the official receiver (appointed Gov. official) in bankruptcy The official receiver will need to look at the deed/ trust instrument to see if there are any bankruptcy clauses, as bankruptcy clauses will over-ride the trust assets: Official Receiver at paragraph 31.5.54: https://www.insolvencydirect.bis.gov.uk/TechnicalManual/Ch25-36/Chapter31/part5/part3/part_3.htm

 

 

This is just the Receiver's job.

 

 

Your friend ESO's trust situation should be safe from the official receiver if there are no bankruptcy or restriction clauses. The Official Receiver will however want to see the deed to the trust.

[Ruleoflaw]

Hello All

 

A very dear friend of ours is in a bit of a pickle.

 

She separated from her husband and he forced her to sell the family home about 18 months ago.

 

They had a lot of debt between them, which was built up during the marriage.

 

She has care of their son and put the £10,000 which she got from the sale of their house in s trust fund for her son.

 

She is under a lot of pressure from her creditors for money.

 

She is considering going bankrupt, but is wondering if the £10,000 which she put away for her son will be taken away

 

Many thanks in advance

 

 

EOS-5D

 

 

How much Debt? if under £20k, she can consider a Debt Relief Order (DRO). If over 20k, a bankruptcy petition.

 

 

A Debt Relief Order costs only £90 and is done through an application to the Official Receiver. It needs to go through an assured agency, which includes Citizens Advice Bureau. Criteria: Must have no more than £50 disposable income (ie after normal household bills, national insurance, tax etc). This could be done instead of normal bankruptcy, which costs £700, requires court order, and may not be guaranteed.

[citizenB]

You could speak to National Debtline for advice as to whether a DRO or BR is most suitable.

 

https://www.nationaldebtline.org/

 

 

Call us for free

debt advice on

0808 808 4000

 

Monday to Friday

9am to 9pm

Saturday 9.30am to 1pm

 

 

IMHO, they are better placed to advise on this issue than Citizens Advice Bureau.