Hi All, I am in the process of sorting out our personal wills, but most of the assests we control (apart from our PPOR) are in trusts. We have a discretionary trust with an IP and shares, and a HDT with an IP at the moment. As we don't own the assets in the trusts my understanding is that there is no place in our personal wills for dealing with these assets. How then do we have a say over what happens to these assets if we kick the bucket? I assume as trustee we need to put in place some documentation about what should happen, or at least who the next trustee should be. Can we put something in place that would bind the trustee to follow our desires? Any suggestions ould be most appreciated. Thanks. John.
As a quick aside, I was reading the other day that over 30% of Australians don't have a Will and those who do have a Will made it several years ago. Everyone got a current Will? Back to the Trust question......
My simplistic response would be that the Appointor would simply appoint another trustee and on she goes. If you are the appointor and the trustee then either the trust deed should specify an alternate appointor in the event of your death or you should make a will stating who the alternate appointor is. The appointor is the most powerful person here (having the power to appoint the next trustee) , not the existing trustee. What can be put in place to ensure that the appointor/new trustee carry out your wishes I am not sure ......... I think I'm at least partly on the right track anyway Ed
Thanks for the pointer. I've just checked the trust deeds and the definintion of the appointor (called the "Prinicpal" in my deeds) includes some statement that effectively says the appointor's will determines who the appointor should be in the event of the current appointor's death. So I just have to include something in my personal will about who I want to be the appointor of the trusts. I just need to find someone who I trust and who knows about investing John.
Sounds right to me - the appointor doesn't really need to know anything about investing if it comes down to brass tacks . The "trust" word is the most important there - you need to be able to trust the appointor to appoint a trustee who knows what they're doing. Obviously you get around that issue if the appointor you select knows all about investing and appoints themselves Even with my limited knowledge in the area it's enough to get yourself tongue tied Hopefully someone will correct me if I've said anything wrong.
We are currently trying to finalise our wills with the solicitor and we face similar issues raised regarding how to deal with the trust in the wills. These are our first wills and we have been working on them with the solicitor for the last 8 months to fine-tune the details. Back to John's question, the appointment of the Appointor in the event of his/her death must be dealt with in the wills. While both of us are appointors of our family trust (and the trustee is a company with both of us as directors), if one of us dies then there is still the surviving one as an appointor. However, just in case we both kick the bucket at the same time then the executor(s) of the wills will become the appointor, plus we have appointed our accountant (but we have not told him yet!) to be another appointor so that there will always be 2 appointors. If the accountant refuses to act as an appointor then it will just be the executor(s) of the wills. The reason why we included our accountant is because he would have the knowledge of the assets in them and the tax consequences etc. Of course, the above are just our particulars. It is not a recommendation as such.
That seems like a good idea to include your accountant in the mix. I should probably start my search for a good solicitor. Anyone care to pm me with recommendations (or post here if you feel like it). John.
John: I am in NSW, so won't recommend to you the solicitor who is doing our wills. I note that you are in Hobart. You should try to find a solicitor in Hobart to draft your wills because the laws in each state are different. I shopped around for a solicitor for our wills - my own in NSW but he quoted a very expensive price, another one in Vic who quoted a lower price but he said in all fairness I should get a solicitor in NSW to do our wills because we will also need power of attorney and guardianship documents and these are different in each state. In the end I knew a solicitor who sits on the same non-profit board and he recommended another solicitor who does a lot of wills. In asking the solicitor to quote, I provided them with an outline of our wills and these are not straightforward because we don't have any children to leave the money to, so we leave money to some family members and Christian organisations ...
Hi John I just had a client make me their power of attorney for a recent purchase. They used a local Hobart solicitor, Matthew Pawson of Peter Worrall Lawyers Telephone: (03) 6223 8899 Matthew is very easy to deal with.
So your will should state who your next appointer will be for your trust, but what happens to the trustee if you are the sole director of a corporate trustee? Is it possible for the new appointer to keep the same trustee in place and simply take over as the director of your trustee company if this is stated in your will?
Hi Oli The new appontor of the trust can change the trustee, but cannot change the director of the existing trustee. That is really a separate issue. With a company, it is the shareholders that control the appointment of the director. So who the director will be will depend who are the shareholders in the company, usually the controlling shareholders. If there are any problems with the control of the existing trustee, the appointor could just sack the trustee and appoint a new one.
Thanks for your reply Terry, I've just done a search and found some further info if anyone is interested: Where the sole director is also the sole shareholder the risk of uncertainty is much greater. Section 201F of the Corporations Act 2001 does provide that, in the event of the death of a single member/director of a proprietary company, the executor or other personal representative appointed to administer the deceased’s estate may appoint a new director to the company. The director has all the powers, rights and duties of the deceased director and can keep the company running until shares are transferred to beneficiaries who may then appoint new directors if they wish. As mentioned above, the executor is ordinarily and most efficiently appointed by means of a valid will. Australian Securities and Investments Commission - Imported - The importance of sole company directors/shareholders having a will
Trust deed is the will of the trust Your situation is very simular to mine except from a different point of veiw. Your right the assets in the trust are not affected by the directions on the will. The people in control of the trust are the appointers, trustees and directors. The arrangment of these people and the way in which the roles of these people in the event of death is cruchial when deciding how to hand over control of assets held in a trust. If you and your partner are trustees it could also mean you and your partner are appointers. One of you could be an appointer or both of you could be an appointer. The directions on the trust deed are effectively the will of the trust, as these decide to whom the role of the appointer will move to.
If you have a hybrid discretioanry trust (HDT), then this complicates things further. The units of the HDT will probably be owned by an individual. These are property and will form part of the estate of that individual. So the units can be gifted in the will of that person. This leads to the complex tax issues of what happens after death (not talking about heaven!). Life after death for a HDT. The individual would have borrowed to buy the units. On their death this loan would, likely, be repaid causing all sorts of complications... I will have to think further about this.
