Knowledge

The BVI Banks and Trust Companies Act, 1990 (as amended), (the "BTCA") generally prohibits any company from carrying on trust business in or from within the BVI, unless it holds a valid licence authorising it to carry on that kind of trust business.

"Trust business" is defined as the business of:

• "acting as a professional trustee, protector or administrator of a trust or settlement [1];
• managing or administering any trust or settlement; or
• acting, in relation to a Class I trust licence, as trustee under wills and settlements and as executor and administrator of deceased persons."

The Financial Services (Exemptions) Regulations, 2007 (the "PTC Regs") provide an exemption from the requirement to obtain a trust licence for "Private Trust Companies" ("PTC"). The PTC Regs provide a light-touch regulatory framework that has been very popular in the years since they came into force.  The PTC Regs were amended and enhanced by the Financial Services (Exemptions) (Amendment) Regulations 2021 (the "2021 Amendment").

In this briefing we summarise the framework currently in place following the 2021 Amendment.

Qualification and name

The requirements that must be met for a company to qualify as a PTC under the PTC Regs are:

1. it must be a limited company (either limited by shares or by guarantee) that is currently on the BVI's Register of Companies;
2. its memorandum of association must state that it is a private trust company;
3. its trust business must consist solely of: 
   a.  unremunerated trust business (see further below); and / or
   b.  related trust business (see further below);
4. its registered agent holds a Class I trust licence;
5. it must not:
   a.  solicit trust business from members of the public; or
   b.  carry on any trust business that is not unremunerated trust business or related trust business   
        [2] (the "Business Restrictions").
   
   

There is no requirement to obtain the approval of or to register with the BVI Financial Services Commission (the "BVI FSC"), although a PTC is subject to certain BVI FSC compliance and supervision.  There are also no annual reports or filings to be made to the BVI FSC.

The BVI Business Companies (Company Names) Regulations, 2007 also require that the name of a private trust company must end with the designation ("PTC") placed immediately before its corporate prefix (e.g. Limited) and, under the BTCA, its name must not include "trust", "trustee", "trust company", "trust corporation" or "fiduciary" or any of their derivatives.

Restrictions as to the trust business

As noted above, a PTC's trust business must be solely "unremunerated trust business" or "related trust business" or a combination of the two.

Unremunerated trust business

The trust business is "unremunerated trust business" if no remuneration is payable to, or received by, the PTC, or any person associated with it, in consideration for, or with respect to, the services that constitute the trust business."

"Remuneration" includes money or any other form of property and it is immaterial whether remuneration is payable or received (i) out of the assets, or underlying assets, of a relevant trust, (ii) from the settlor or beneficiary of a relevant trust, or (iii) from any other person pursuant to an arrangement with the settlor or beneficiary of a relevant trust.

A person is "associated" with a PTC if (i) he or she has an interest, whether legal or beneficial, in the private trust company, (ii) he or she is a director or former director of the private trust company, or (iii) he or she is an employee or former employee of the private trust company.

However, payment made to a PTC to indemnify it in respect of costs and expenses paid or incurred by it [3] will not be regarded as "remuneration" for these purposes. Further, remuneration payable to or received by a director will not be "remuneration" of the PTC if paid for director services and the director is not otherwise associated with the PTC (as described above).

Related trust business

"Related trust business" means trust business provided in respect of: "…a single qualifying trust; or a group of related qualifying trusts."

A "qualifying trust" is where each beneficiary is: "…a connected person in relation to the settlor of the trust; a charity; or its settlor".

A person is a "connected person" in respect of any of the following relationships:

• his spouse;
• his descendants and their spouses;
• his parents, including step-parents;
• his grandparents and his spouse's grandparents;
• his parents-in-law, including step-parents-in-law;
• his brother, step-brother, sister, step-sister and their spouses and children;
• his spouse's brother, step-brother, sister, step-sister and their spouses and children;
• his parent's brother, step-brother, sister, step-sister and their spouses;
• children of the brother, step-brother, sister or step-sister of his parents, both present and future, including step-children and their spouses; and
• children of his brother, step-brother, sister or step-sister, both present and future, including step-children and their spouses.

Any of the relationships specified above that may be established by affinity or consanguinity may also be established by adoption.

Duties of registered agents

The registered agent of the PTC must:

• not agree to act as the registered agent of a PTC unless it has taken all reasonable steps to satisfy itself that the PTC complies with the Business Restrictions;
• on a periodic basis (such frequency being determined by the risk of non-compliance assessed by the registered agent) take all reasonable steps to satisfy itself that the PTC complies with the Business Restrictions;
• take all reasonable steps to ensure that up to date copies of the trust deed, any deed varying the trust deed and the documentation and other information on which it has relied to satisfy itself that the PTC complies with the Business Restrictions are kept at its office in the BVI; and
• immediately notify the BVI FSC in writing if at any time it forms the opinion that the PTC does not comply with the Business Restrictions.

Local directors

Other than the requirement to have a registered agent, there is no requirement to have local directors or a local authorised representative for a BVI PTC.

Confidentiality

The only document required to be filed publicly for a BVI PTC is its memorandum and articles which, other than containing a statement that the company is a PTC, do not need to contain details of the directors, shareholders or any trust of which the PTC is the trustee.

There is no requirement to file the register of members in the BVI and, whilst there is a requirement to file the register of directors, this document is not a public document and thus is not available to the public.

Fees

There are no application or annual fees to register as a PTC.

The registration and annual fees of a PTC are US$1,350 (compared to US$450 for a "regular" BVI business company).

If you would like any further information, please get in touch with your usual Bedell Cristin contact or one of the contacts listed.

ENDNOTES

[1] Bare trusts are exempted under 11 (1) of the Exemption Regulations (defined below).
[2] Although, following the 2021 Amendment, it may now carry on business that is not trust business, such as opening accounts for itself, acting as enforcer of non-charitable purpose trusts etc.
[3] Such as annual government fees, registered agent fees etc.