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Discretionary Trusts & Unit Trusts

Creating a Trust

Should you decide you need a Trust, you should seek legal and financial advice to ascertain the most suitable trust for you. Whether you are considering Asset Protection and/or Estate Planning you must also consider Tax Planning prior to creation of the Trust as well as Duties implications.

What is a Discretionary Trust Deed?

A Discretionary Trust, also known as a Family Trust (there is a differing definition in the Tax Acts), is not a separate legal entity unlike a Company. The sole purpose of a Discretionary Trust is to distribute income to particular Beneficiaries nominated in the Deed and decided by the Trustee at any given time (at the trustee's discretion). Reasons why you would consider using a trust are: Asset Protection, Estate Planning and flexibility for distribution of income.   Whilst a Trust cannot hold assets or incur liabilities, the Trustee has a legal obligation to hold and maintain the assets and liabilities on behalf of the Trust for the Beneficiaries.  The most common form of a Trustee is an Incorporated Company controlled by the Principal Beneficiary (Appointor) of the Trust to ensure the continuity and future security of the Trust.

What is a Unit Trust?

The Unit Trust is a document outlining a fixed distribution of income and/or capital in accordance with the proportion of issued units. This is similar to a shareholding in a Company. A Unit Trust structure may be appropriate where individuals/companies enter into a common investment/joint venture. The Trustee is bound by the Deed in respect to dealing with income and assets.   The most common form of a Trustee is an Incorporated Company controlled by all the unitholders (parties) of the Unit Trust to ensure the integrity of the Trust.

What is a Hybrid Trust?

A Hybrid Trust is generally a combination of a Discretionary and Unit Trust. As this is a specialist Deed with greatly varying Tax consequences, Company Planners Pty Ltd is unable to provide a "Shelf Deed". However, we are pleased to refer you to our Legal Advisors for assistance and quotation.

Definitions

Settlor : The person who establishes the trust. Once the Trust has been created the Settlor no longer has any rights or benefits from the Trust.
Trustee : Person (Company) who has legal title/control over property/assets on behalf of another. A Trustee may be a Company to place assets at arms length from your business and personal assets. Property and assets are purchased and held by the Trustee (e.g. "Trustee" as trustee for the "Family Trust").
Beneficiary : Primary Beneficiaries are the people for which the Trust is created (usually lineal family); General Class of Beneficiaries may be anyone related to the Primary Beneficiaries, non-lineal family, and any company/trust in which a primary beneficiary of the trust has an interest.
Appointor : The person who represents the Primary Beneficiaries and may cease or appoint the Trustee.
Succession Appointor : Appointor's personal representative to take over the role upon the death, resignation or inability to act of the Appointor. This is an important consideration when setting up the Trust as Assets held in a trust do not form part of your estate and do not pass in accordance with the terms of your will.

 Stamp Duty

Please note that stamp duty MAY be payable on trust documents and that this varies from state to state. For instance, following last year's mini-budget, the New South Wales Office of State Revenue now imposes stamp duty of $500.00 for deeds executed on or after 1 January 2009, plus $10.00 for each additional copy stamped.

This information is supplied as a brief outline only and does not preclude the Ordering Party from fulfilling their legal obligations. Company Planners Pty Ltd cannot explain every responsibility or cover every situation, and in this regard you should seek professional business and financial advice. You will be held responsible for your legal obligations and not Company Planners Pty Ltd.

Company Register We always provide a fully completed Company Register with all your statutory documents as required under section 1302 of the Corporations Act 2001 along with a bank account kit.

Legal Partner Our constitutions are written and updated by Hall & Wilcox Lawyers, and any changes to government regulations are updated immediately