from ‘creditors and predators’.
The two main types of trusts used by families are:
Discretionary trusts. These are often set up either to hold property and investments on behalf of family members or to operate a business.
Testamentary trusts. These are created via a clause in the ‘testament’ (or will) of an individual, but don't get established until after the individual dies.
A testamentary trust is an indirect way of managing your family's wealth after your death. While you obviously won't be around to oversee the management of the trust itself, you will have some comfort knowing that your loved ones will be looked after financially and not savaged by the ATO.
There are substantial tax advantages relating to testamentary trusts, including distributions to minors being taxed at the more favourable adult rates.
The cost of establishing and maintaining a trust can be high and may outweigh any benefits in having a trust structure, especially when the assets involved are not worth much.
The trustee is the legal owner of the trust property, and is responsible for managing the trust fund on behalf of the beneficiaries. The trustee has a legal duty to obey the terms of the trust deed and to always act in the best interests of the beneficiaries. A trust can operate for up to 80 years in Australia, though it is common to have a clause within the trust deed to allow the trustee the option of winding it up earlier if considered appropriate. Distributions must be documented by 30 June each year.
The ATO takes a dim view of trustees who have distributed net income ‘on paper’ to certain tax-advantaged beneficiaries (such as companies) but have not physically received any payments from the trust.
There are many benefits to using trusts to manage your wealth, including:
Asset protection. Family assets may be protected from ‘creditors and predators’ in the event of bankruptcy or insolvency in certain situations.
Australia-wide. A trust established under Australian law can operate effectively in every Australian state. If you have potential beneficiaries living overseas, it is recommended that you seek specialist advice before proceeding further as there are many tax implications to consider.
Flexibility. Trust deeds are flexible in their operation and can cater for a wide variety of beneficiary classes and investments, and different types of income can be directed to different beneficiaries.
Little regulation. Trusts do not have as many reporting requirements and obligations as company structures.
Tax minimisation. Income can be directed to family members on lower tax rates.
If you place money in a term deposit, consider having it mature after 30 June so that any income is not assessable until the following financial year.
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