Pros and Cons of Cook Islands Trusts

What Is a Cook Islands Trust?

A Cook Islands trust is an offshore asset protection trust designed to shield your assets from U.S. creditors. By placing assets in a Cook Islands trust, they are moved outside U.S. jurisdiction, making them difficult for creditors to access. A Cook Islands trust can protect a wide range of assets, including bank accounts, investments, business interests, and real estate.

The Cook Islands trust is considered one of the most powerful tools for asset protection. It offers benefits such as moving assets beyond U.S. reach, preventing seizure by creditors, safeguarding assets during a divorce, and providing leverage in settlement negotiations.

How a Cook Islands Trust Works

A Cook Islands trust must have a trustee based in the Cook Islands. These trustees are licensed and regulated by the Cook Islands government under strict legal standards. The trustee is responsible for administering the trust and managing its assets, but they have no personal claim to the trust property.

A key feature of a Cook Islands asset protection trust is the involvement of independent third parties, including trustees, trust advisers, and trust protectors. While the trustee manages the assets, a trust protector can hold the authority to replace the trustee, adjust beneficial interests, or oversee investment decisions. Advisors, who may be either foreign or U.S. persons, can also be appointed to guide the trust’s investment strategy.

A Cook Islands trust protects a U.S. debtor’s assets from U.S. civil judgments by placing both the assets and the trustee beyond the jurisdiction of U.S. courts. Since the trustee is based offshore, U.S. judges cannot order the trustee to act on or access the trust’s assets. As a result, creditors cannot use legal methods to seize or interfere with the assets held in a Cook Islands trust.

To levy assets within a Cook Islands trust, a U.S. judgment creditor would need to re-litigate the original U.S. case in the Cook Islands courts and secure a new judgment there. This process is challenging, costly, and rarely pursued by creditors.

Cook Islands Trust Advantages

• Transfers into a Cook Islands trust made more than two years after a creditor’s cause of action has accrued are fully protected.
• A creditor must file a lawsuit within one year from the time the cause of action accrues if the assets are transferred into the trust within two years from the date the cause of action accrues.
• Fraudulent transfer claims cannot be brought in the U.S. The creditor must file the action into the Cook Islands, which is very expensive and burdensome for a U.S. creditor.
• Even if a creditor can bring a fraudulent transfer claim, it is difficult to succeed. They must prove beyond a reasonable doubt that the transfer was made with the intent to defraud that particular creditor and that the transfer left the debtor insolvent.

The Cook Islands is considered the best place to set up an offshore trust. As one of the original countries with favorable offshore trust laws, the Cook Islands have a long history of court decisions upholding the protection afforded by its trusts.

The most important benefits of a Cook Islands trust include the following:

How to Set Up a Cook Islands Trust

To set up a Cook Islands trust, you must (1) choose a trust company licensed in the Cook Islands, (2) complete a due diligence background check, (3) sign the trust agreement, and (4) fund the trust. You can open financial accounts in the name of the trust once the trust is established.

Choosing the trustee is the most important step. The Cook Islands have laws that ensure that trust companies are licensed and insured by reputable insurance companies.

Cost to Establish a Cook Islands Trust

The base cost of a Cook Islands trust is between $15,000 to $20,000. The cost of the trust could be higher with more trust options. Annual maintenance fees range from $3,000 to $6,000.

There are several factors that influence the cost of setting up a Cook Islands trust. The most important ones are:

• Trust Setup Fees. The initial costs charged by the trustee company to establish the trust structure.
• Trustee Annual Fees. Ongoing fees paid to the trustee company to serve as trustee.
• Legal and Fees. The initial cost for the U.S. attorney to help set up the trust and draft the trust document.
• Asset Transfers. Expenses related to transferring assets into the trust, including LLCs, financial accounts, and real estate.
• Compliance and Reporting: Fees for meeting regulatory and reporting requirements in the U.S.

History of Cook Islands Trusts

The Cook Islands were the first jurisdiction that enacted favorable trust laws enabling U.S. residents to protect assets. When the Cook Islands enacted the International Trusts Amendment Act of 1989, it became the premier offshore trust jurisdiction.

Since then, other jurisdictions, such as Nevis, Belize, and the Bahamas, have enacted similar statutes.

The law affords the utmost asset protection while maintaining flexibility and privacy for U.S. trust-makers. Cook Islands trust companies are reputable, experienced, and thoroughly competent.

Structure of a Cook Islands Trust

The basic structure of a Cook Islands trust involves three parties:

1. The Settlor. The settlor of an offshore trust establishes the trust by transferring assets to it.
2. The Trustee. The trustee of a Cook Islands trust is is a person or corporation located in the Cook Islands that holds and manages the trust assets according to the terms of the trust deed. They have a legal duty to act in the best interests of the beneficiaries.
3. The Beneficiaries. The beneficiary of a Cook Islands trust is the individual or entities that benefit from the trust, as determined by the settlor. Most often, the settlor is the primary or only beneficiary.

Should the settlor find themselves under legal duress from a domestic creditor, the trustee of the Cook Islands trust would withhold distributions until the trustee is satisfied that any distribution made would not benefit the creditor.

How Are Cook Islands Trusts Taxed?

The Cook Islands themselves do not impose a tax on offshore trusts. No income tax, capital gains tax, or estate duty is applicable to an offshore trust, provided that neither the settlor nor the beneficiaries are residents of the Cook Islands.

In the U.S., a Cook Islands trust is tax-neutral. It is taxed as a grantor trust and should flow through to the grantor’s personal U.S. tax return.

Cook Islands Trust Bank Accounts

Typically, you will set up an offshore bank account immediately after forming a Cook Islands trust. This bank account is the primary mechanism through which the trust’s assets are managed. Once the trust is established, the assets transferred into it, including the money in the associated bank account, are legally owned and managed by the trustee of the Cook Islands trust.

The bank account is often opened in the same jurisdiction as the trust, but it is also possible to establish a bank account in another jurisdiction. The choice depends on your specific needs.

Setting up a bank account for an offshore trust is not as straightforward as opening a personal bank account. Banks are subject to stringent international regulations regarding money laundering and financial crimes. They must perform rigorous due diligence before accepting business from offshore entities, including Cook Islands trusts.

No matter where they are located, international banks will require detailed information about the trust, source of funds, and the settlor and beneficiaries.

Fraudulent Transfers

The Cook Islands has a debtor-friendly fraudulent transfer law. They makes it very difficult for a creditor to successfully prosecute a fraudulent transfer claim.

Cook Islands law puts the burden of proof on the creditor to demonstrate beyond a reasonable doubt (the highest standard of proof) that the settlor transferred assets into the trust with the explicit intent to defraud that specific creditor.

Moreover, the claim must be brought within a specified time frame, typically within two years of the alleged fraudulent transfer. This is a far more protective stance than many other jurisdictions, which may use a lower standard of proof and allow claims to be brought for a longer period after the transfer.

Is a Cook Islands Trust Worth It?

A Cook Islands trust can be extremely worthwhile for those seeking a high level of asset protection. A Cook Islands trust structure effectively shelters trust assets from future creditors, claims from a divorced spouse, and other legal judgments.

Moreover, the Cook Islands does not recognize foreign judgments, adding a significant protection layer for trust assets.

FAQs About Cook Islands Trusts

What Is a Cook Island Trust?
A Cook Island trust is an offshore trust designed for asset protection. It allows you to protect your assets by moving them to another county where local laws make make it difficult for creditors to access those assets.

Are Cook Islands trusts legal for U.S. citizens?
Yes, Cook Islands trusts are legal for U.S. citizens, provided they comply with U.S. tax laws and reporting requirements.

How effective is a Cook Islands trust in protecting assets from lawsuits?
Cook Islands trusts are considered one of the most effective asset protection tools for U.S. residents, as they remove assets from U.S. jurisdiction and the control of the trustmaker.

How long does it take to establish a Cook Islands trust?
It generally takes 2-4 weeks to establish a Cook Islands trust.