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Trust and will

Discussion in 'Estate Planning' started by salsa, 26th Sep, 2007.

  1. salsa

    salsa Well-Known Member

    Joined:
    23rd Oct, 2005
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    Location:
    Brisbane
    Hi, this query is to those who have trusts or the good solicitor,

    With Trusts that have a company trustee where I am a director, in my will I would say I appoint say Mr XXX to be the director if i want to pass it on to my son Mr XXX ?

    With HDT Trust that have my personal name as trustee and my partner as the appointor, and both of us buy income units from the HDT,
    what should Ii say in my will if I want to pass it on to our son Mr XXX , for him to be the trustee and also to be the new owner of my income units, when I die ?

    Thank you.
     
  2. handyandy

    handyandy Well-Known Member

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    Location:
    Sydney Nsw
    Hi Salsa

    Am going through similar issues and although the solicitor has drawn it all up it seems like a bunch of confusion at the moment :confused:

    One thing that they have done is appoint powers of attorneys for all companies. (this can also be done for people - or is in fact a person thing anyway)

    So in this case even where a will may not come into affect (disablement) then the show doesn't stop. Also the time it will take for the will to be acted on is a concern as again things may need to be actioned in the meantime.

    Cheers
     
  3. salsa

    salsa Well-Known Member

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    23rd Oct, 2005
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    Location:
    Brisbane
    Thanks Andy,
    Good point, we do have powers of attorneys for each of us but not for companies. Will consider it.
    Still not sure if in the will I can "apppoint" my son as trustee, to replace me as trustee for a DHT.
     
  4. DaveA

    DaveA Well-Known Member

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    Location:
    Sydney, NSW

    I absolutly have no knowledge on this however i thought that it was the appointor that controlled the trustee? trying to appoint a new trustee in a will is not your role.

    It should only be your wifes (appointors) role to replace you as trustee. This should be the same for both trusts. However if their is multipule appointors im not sure how it would work (both of you appointing the same person would probably be most simple).

    Being a director of the company shouldnt be too much of a concern as the directors are controlled by the shareholders. If you appoint a replacement director and the shares in the corporate trustee go to your will. The executor of the estate (or any one else) could request a change of directors and appoint who they want (as they are the majority owner). However, remember the appointor can change the trustee at any point in time. So i think in both cases worry about the appointor and not anything else

    Many complex arguments which i have absoletly no qualifications for, so please raise these with the solicitor. Id love to here your response if you do.
     
  5. Rob G.

    Rob G. Well-Known Member

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    Location:
    Melbourne, VIC
    What are you trying to do ?

    The trust property does not form part of your personal estate and cannot be disposed of by your will. You can only leave things like a memorandum of wishes in the hope that the Trustee treats your beneficial interest (if any) according to your instructions. The (inter vivos) Trustee is not bound by your will.

    If you are the trust Guardian or Appointor (who controls the appointment of Trustee) then you may leave instructions in your will on who is to be successive Appointor. The Appointor cannot tell the Trustee what to do as such, except through the deed, and the Trustees powers are limited by the terms of the deed and his conscience.

    This can always be defeated by law or statute (e.g. Trustee Act (Vic) 1958), and wills are open to challenge by dependents, creditors etc.

    Cheers,

    Rob
     
  6. MattR

    MattR Well-Known Member

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    Many Trust Deeds will state what is to happen in the case of the death of an Appointor or Trustee.

    In some cases I have a Deed Poll, which the existing Appointor signs in the case of their death, which nominates another person to become the Appointor (also signed by them consenting to that role)
     
  7. Terryw

    Terryw Well-Known Member

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    Directors can't be dealt with in wills as it is the shareholders of the company that appoint directors. The new shareholders will control the company.

    But, as said above it is the role of appointor that is important,