The grandfather's trust assets are unlikely to fall into the hands of your father. The control of the trust may, but not the assets themselves. The solicitor may not have the deed, or a copy, unless he was the one that created it. Not sure if he would let you see it though you may have a right to see it if you are a beneficiary – but you would need to go through the trustee to do so.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Terryw,
The solictor would be the trustee right?
nope. Unlikely.
The trustee controls the trust and determines the distribution. It is likely your Grandfather will have a company as trustee with him controlling the company as director.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Terryw wrote:nope. Unlikely.The trustee controls the trust and determines the distribution. It is likely your Grandfather will have a company as trustee with him controlling the company as director.
My grandfather did once tell me he is the director of his company while we were discussing this trust stuff. So my gradfather could be the trustee or a indivdual representing my grandfather for his company.
If the trustee is the company he would be director. Or he himself could be the trustee of the trust.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
"Or he himself could be the trustee of the trust"
All this is in order to get information about the trust so I may determine how the inheritance falls into my fathers hands
in order to prevent it from being creadited by my fathers new wife.If i ask him and he understands and tells me about the structure of the trust and about the trust deed. Then I have no need to
talk to the solicitor. Otherwise I should make an appointment with solicitor.I found a model trust deed on google. The trust deed would detail the details of who is the trustee?
Additionally it would provide a detailed description of the type of trust and the conditions of the trust?I think I understand now. Thanks
It doesn't matter who the trustee is, the assets of the trust won't become part of the estate – generally. (In NSW there is the notional estate orders where trust assets could be taken to be part of the estate. There is also the possibility that the laws in ACT will change in the future, and there is also the possibility that the claim could be commenced in NSW if the property is located in NSW).
What you need to look for in the deed is who the appointor is, and who the next appointor is. This is important, very important. There is also the possiblity for the loss of capacity in the future. You don't want someone hostile taking control of the trust and distirbuting all the trust assets to themselves.
The trust deed should say who the appointor (could also be called guardian) is and who the trustee is. You will also know if it is a unit trust or a discretionary trust.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Sorry to bother you again. Say in the future my grandfather passes and the trustee becomes under the control of my father.
Then in the future when my father passes I become in control of trustee and how income is distributed. Correct?Thats so long as I make sure dad details in his will that I am to become in control of the trustee and its relevant wealth.
Thanks
The trustee controls the distribution of the income and capital of the trust – but they must act according to their powers in the trust deed.
So you want to control the position of trustee by being the trustee or by being the director and majority shareholder of the trustee company. You also want to be the appointor or control the role of appointor because the appointor can remove the trustee.
You cannot really leave control of the trust in the will. The trust deed will control who the successor trustee and/or appointor is. If the shares of the trustee company are held by someone personally (ie not in a separate trust) then these can be willed.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Terryw wrote:It doesn't matter who the trustee is, the assets of the trust won't become part of the estate – generally. (In NSW there is the notional estate orders where trust assets could be taken to be part of the estate. There is also the possibility that the laws in ACT will change in the future, and there is also the possibility that the claim could be commenced in NSW if the property is located in NSW).What you need to look for in the deed is who the appointor is, and who the next appointor is. This is important, very important. There is also the possiblity for the loss of capacity in the future. You don't want someone hostile taking control of the trust and distirbuting all the trust assets to themselves.
The trust deed should say who the appointor (could also be called guardian) is and who the trustee is. You will also know if it is a unit trust or a discretionary trust.
Okay, well I will find out who the appointer is and the next appointer. From my reading I determined that the appointer is the person who is able to replace the trustee in the event of a dispute
yep
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Terryw,
Once I find out who the appointer is, is there any way I may be able to change who is to become the next appointer in the trust deed?
Yes, you can amend the deed. Or have your grandfather's lawyer do it as you must be careful not to cause a resettlement.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Or alternatively, how may I take control of the appointer?
The appointor has all the power – so you should try to get this role if possible. You can do this by having the deed amended.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Terryw wrote:Yes, you can amend the deed. Or have your grandfather's lawyer do it as you must be careful not to cause a resettlement.In which case who would be a suitable candidate for the next appointer? Could I or my father become the next appointer?
That will depend on your situation. Every one will want to control wealth themselves or have their close family control it. If a hostile appointor gets in they could legally take all of the trust assets.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
Yep, I understand. Offcourse everyone would want to be the appointer. lol. The appointer is control of the whole trust including all its assets and ultimately how they are distributed via the trustee. My goal is to make my father the appointer as I eventually want to create a special disability trust as I actually have a disability. They are quite a new thing, heard of them?
Stephen
Also how would you compare the role of the director and the appointer?
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