What is a foundation?
First, we must define what a foundation is: a foundation is an independent organization, a body. It has no members or shareholders. The legal basis is the mother of all laws, the Civil Code. The statutory basic data are to be found there from the paragraph 80 ff. The federal states have adopted further regulations in the foundation legislation (eg the Stiftungsgesetz Berlin).
The foundation of a foundation has various advantages: on the one hand, the immense tax advantages for the donors of charitable foundations should be mentioned. On the other hand, foundations can also be used for asset protection. This is done in the area of family-oriented family foundations.
How does a foundation work?
But how exactly do you start a foundation? First you have to know: Foundations are differentiated according to whether they have legal capacity or not. A key feature of the foundation is that a business asset must be available, the so-called foundation assets. As a rule, this endowment must not be "consumed".
Only the income from the asset stock is used for the operation of the foundation. Another core feature of the foundation is that the income can only be used for the purpose of the foundation.
The purpose of the foundation
With foundation of the foundation a foundation purpose is determined. In this one determines from the outset for what the money may be used. Foundation purposes may be in the sovereign sphere.
For this exist public legal foundations private area lie. These would be so-called family foundations or company foundations or non-profit areas. This area is of particular interest to the tax authorities, as donations to the assets of such a foundation can be deducted as generous as donations (more on this later).
Foundations of public law
Foundations of public law are established by a statutory administrative act. They serve the fulfillment of public tasks.
Examples of foundations of public law are:
- the foundation remembrance, responsibility and future (serves the compensation of former forced laborers)
- the Contergan Foundation for disabled people, (support for people suffering from permanent damage caused by the drug thalidomide (better known as Contergan)
- the Stiftung Preußischer Kulturbesitz, (administered formerly Prussian cultural objects such as libraries or art collections)
- the Berliner Philharmoniker (bearer of this foundation is the Land Berlin)
Federal foundations are erected by a federal law and serve to commemorate outstanding statesmen of German history. This is exemplified by the American presidential libraries.
Examples for the Federal Foundation are:
- the Foundation Chancellor-Adenauer-Haus in Rhöndorf
- the foundation Reichspräsident-Friedrich-Ebert-memorial in Heidelberg
- the Federal Chancellor Willy Brandt Foundation in Berlin
The non-legal foundation
The non-legal foundation is actually the little brother of the legally valid foundation. Legal capacity is granted to independent foundations with the approval of the foundation authorities. Before the approval, which has a legal effect, all foundations are not legal.
In the case of the non-legal foundation, the assets are transferred to a trustee (fiduciary) by means of a trustee agreement (foundation agreement). This trustee is required to use the money only for the previously defined purpose of the foundation.
How to found a legal foundation?
The establishment of a non-legal foundation is quite simple, in contrast to the legal foundation. You only need
- a foundation purpose - who should receive the assets?
- a trust treaty
- a person / organization of your trust
Low administrative expenses
Most of these forms of foundation run under the umbrella of non-profit organizations (e.g. Caritas). This means: You determine for what purposes your foundation assets should be used within the scope of the non-profit organization. This can be broken down to individual projects.
An immense advantage is the greatly reduced administrative costs, in contrast to the legal foundations. You do not need your own board for the foundation. The founding documents will not be audited again separately by the Foundation Authority and the annual financial statements will not have to be submitted to the Foundation Supervision.
Only small assets necessary
For this reason, the establishment of a non-legal foundation is already practicable with a rather small capacity. A small asset is an asset that is less than 100.000 €. Why is that so?
The foundation purpose of a legally valid foundation may only be pursued through the income from the asset stock. In addition to the purpose of the foundation, however, the current expenses are also to be paid out of these income.
Pens to resolution
In the case of 100.000 € assets and an assumed interest rate of 5%, 5.000 € is therefore available for a good cause (before deduction of current expenses). This is not very much. However, the non-legal foundation can also be used for the purpose of the foundation.
The foundation is dissolved when no assets are available. For this reason, should a small fortune always an unincorporated foundation to receive priority. Alternatively, the assets could also pass through a donation.
Increase in assets
The term "endowment" refers to the transfer of money from an existing foundation. With an endowment you thus increase the assets of an existing foundation.
Another advantage is that you can use the simple foundation to "practice". Could it be that you do not like the idea of a foundation? If you like, the non-legal foundation can be converted into a legal foundation (with a corresponding increase in assets).
Disadvantages of the non-lawful foundation
As so often in life, there are not only advantages but also disadvantages. The person / organization of your trust - the trustee - is not subject to state restrictions (supervision by the Foundation Supervision). So if he acts contrary to your good purpose, you have hardly a handle to stop the bustle.
Under civil law, the property even goes into the ownership of the fiduciary. If this happens badly, the trustee's transferred assets are used for their own purposes rather than for foundations. If the trustee is a natural person and dies, the foundation is forced to be dissolved.
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