How to register a trust in South Africa

Two kinds of trust

The Master distinguishes an inter vivos trust, created between living persons by a written deed, from a testamentary trust, which comes into existence under a valid will when the person dies. This guide is about the first kind, which is what people mean when they say they want to “register a family trust” or “put the business in a trust”. A testamentary trust is created by the will itself and registered by the executor when the estate is reported.

The law is the Trust Property Control Act 57 of 1988. The people involved are the founder, who creates the trust and puts the first assets in; the trustees, who control the assets according to the deed; and the beneficiaries, for whose benefit the trust exists. The Master of the High Court is the regulator: the deed is lodged there, the trustees are authorised there, and since 2023 the beneficial ownership register is lodged there.

What the Master requires

The Master’s own list for registering an inter vivos trust:

• The original trust deed, or a copy certified by a notary
• Form J401, the application to register the trust
• Form J417, acceptance of trusteeship, completed by every trustee
• Form J405, acceptance by the auditor or accountant who will keep the trust’s books
• Form J450, the beneficiary declaration
• Certified copies of the identity documents of every trustee and every beneficiary
• A bond of security on form J344 from each trustee, unless the deed exempts the trustees from furnishing security, in which case proof of that exemption
• Proof of payment of the R250 fee, paid into the Department of Justice and Constitutional Development account at ABSA, account number 4077507497, branch code 632005, with a reference in the form “MOH”, the office, and “TRUST”, for example MOH PTA TRUST
• A certified final court order, only where a court has ordered the trust

The application goes to the Master in whose area of jurisdiction the greatest portion of the trust assets are situated. The forms are on the Department of Justice website under the Master’s forms page.

How it works, step by step

1. Decide what the trust is for and who plays which role. Founder, at least two trustees in practice, and the beneficiaries. The Master and the courts expect at least one trustee who is independent of the founder and the beneficiaries when family members are trustees, because a trust the founder still controls in every practical way is at risk of being treated as no trust at all.
2. Have the deed drafted. This is where the real cost sits. The deed sets the trust’s purpose, the trustees’ powers, how decisions are taken, whether trustees must give security, how trustees are replaced and how the trust ends. Get it drafted by someone who does trusts, because the Master registers what you lodge and it is very hard to fix afterwards.
3. Sign everything. The founder and trustees sign the deed; each trustee completes a J417; the accountant a J405; the founder the J401 and J450.
4. Pay the R250 and lodge the file at the right Master’s office, with the certified copies and the proof of payment.
5. Wait for the letters of authority. Nothing done for the trust before they issue has any legal effect. Do not open the bank account, buy the property or transfer the shares yet.
6. Lodge the beneficial ownership register on the Master’s online portal, and get a tax number for the trust from SARS. Both are duties of the trustees, not of the person who drafted the deed.

The beneficial ownership register

The General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act 22 of 2022 added section 11A to the Trust Property Control Act with effect from 1 April 2023. It requires the trustees of every trust to establish and keep a record of the trust’s beneficial owners and to lodge it with the Master, which is done electronically on the Master’s portal. The Act defines a beneficial owner of a trust broadly: the founder, every trustee, every beneficiary named in the deed, and any natural person who ultimately owns the trust property or exercises effective control over the trust.

The Master set 15 November 2024 as the deadline for existing trusts to file. New trusts file on registration, and every trust updates the register when trustees or beneficiaries change. The amended section 19 of the Act makes failure an offence with a maximum penalty of a fine of R10 million, five years’ imprisonment, or both. Trustees must also record the details of the accountable institutions, such as banks and attorneys, that they deal with on the trust’s behalf.

What actually goes wrong

• The wrong Master’s office. Lodging where the founder lives rather than where the greatest portion of the assets is.
• Certified copies that have aged. Master’s offices generally want certifications within the last three months.
• A missing J405. Founders forget that an accountant must accept the appointment in writing before registration.
• Trustees acting before the letters issue. Property bought or contracts signed in the trust’s name before authorisation are the trustee’s personal problem.
• Registering and then never filing the beneficial ownership register. This is the one with the R10 million ceiling.
• A deed the founder controls entirely. If the founder is the only trustee who matters and the sole beneficiary in practice, courts can look through the trust, which defeats the reason it was created.

Frequently asked questions