Distributing assets in the family trust on death

From LEXOLOGY

July 2015

Many people assume their existing Will automatically deals with their discretionary trust and superannuation assets. Our firm raises with clients that these assets usually are not automatically dealt with under their Will and special attention needs to be given.

The truth is these assets may or may not end up being dealt with under people’s Will. Therefore, it is important that they are dealt with in the way the law allows to ensure they end up with the persons you intend.

The main considerations relevant to an estate plan include:

• Dealing with control of a discretionary trust –  check the powers of appointment in the trust deed (if any) and ensure that the power of the appointor can be passed onto a person of the appointor’s choosing under their Will; consider whether the trust deed needs to be amended to allow for this.

• Who are the beneficiaries? –  check who you want to receive the trust assets and ensure that those persons are beneficiaries in the trust deed. We can advise when making Wills what can be done to achieve these wishes.

• Superannuation – check to see if a valid binding death nomination has been made (in addition to taking proper financial advice on any potential tax consequences of leaving superannuation to a non-tax dependant).

There can be significant costs and unintended consequences of not properly dealing with assets in an estate plan.

We deal extensively with wills and estates, large and small. For any advice on wills and estates contact Roy Hasda at Belperio Clark on 8212 1322 or email roy@bc-lawyers.com.au.