Trusts Deed
When setting up a discretionary trust it’s important to have the right structure, but it is equally important to have the right trust deed. The trust deed outlines the responsibilities and powers of the corporate trustee, who can benefit, and the rights of the beneficiaries, and determines the way that income and capital can be distributed. It’s an important legal document setting out the rules of the trust and is vital to the ongoing administration of the trusts.
Corporate Trustee
The general beneficiary clause of the trusts deed is very wide, basically including almost anyone related by blood or marriage to the Primary Beneficiaries, as well as trusts and companies in which they may have an interest. If no determination is made to distribute the income of the trusts for a particular income year, the income will be held on trusts for equal distribution amongst the Primary Beneficiaries aged 18 or more. When the trust is wound up (which will effectively be 80 years after the trust commences, unless the corporate trustee decides to wind it up earlier or the trust is in South Australia) the trustee can distribute the assets of the trust fund as it thinks fit and, if it does not make a determination, they will be distributed to the Primary Beneficiaries (unless any of them have died, in which case their share will be distributed equally to their children, or, if none of them are alive, equally to the general beneficiaries). The trustee’s powers have been drafted as broadly as possible, also allowing the trustee to act as if it is the sole and beneficial owner of the assets of the trust fund, and should include most situations that a trustee will encounter (although note that banks are notorious for requiring very specific powers to be inserted, and may still insist on this despite the trustee having very broad power to act under the deed). The trust deed allows income derived from the investment of property received from a deceased estate (and similar property) to be distributed to minor beneficiaries such that they retain their preferential tax status (i.e. for the income to be taxed at adult rates). There is a dispute-resolving mechanism when there is more than one trustee and they can’t reach an agreement. If there is more than one appointer, they must make decisions unanimously (unless the deed has been varied to provide otherwise), and there is a dispute-resolving mechanism if they can’t reach an agreement.
Will Format
If the trustee received a testamentary gift (i.e., under the will of a deceased person) and there may be a problem with a technical legal rule known as “the rule against the delegation of testamentary power” (or any other such legal rule or law) then that gift is considered to be held on trust for the beneficiaries existing at the time the trustee receives the gift. New beneficiaries can be added but if any such technical rules apply, they cannot share in that gift. It depends upon the will format. Will format is the main thing for the trusts.