Smarter Express Mutual ➲ Mirror Wills for couples incl. Testamentary Trusts

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Smarter Express Mutual ➲ Mirror Wills incl. Testamentary Trusts [produced in duplicate for couples].

How do Express Mutual ➲ Mirror Wills for couples work?

Aside from gifts of personal chattels and optional charitable donations, each spouse irrevocably (unless new replacement Mutual Mirror Wills are executed):

1️⃣  Leaves their entire estate to the other spouse; and also

2️⃣  Agrees not to change their Will for any reason at any point in the future. [This is the irrevocable part!]

If one spouse predeceases the other, the Mutual Mirror Wills can specify whether their share of the estate should flow to:

➲ The other spouse’s children; or

➲ The predeceased spouse’s children: the latter may be useful in blended family scenarios.

You can also choose whether step-children are included within the definition of “children” for these purposes.

The days of the “simple” will are over!

Don’t make the mistake of thinking that old-style Wills keep things simple – they can easily lead to complexity and disputes as they aren’t drafted to properly protect beneficiary entitlements and avoid unnecessary taxes.

Our Smarter Will incl. a Testamentary Trust is a cutting-edge document.

Meticulously designed in consultation with leading Australian estate planning experts to provide maximum flexibility and asset protection + tax minimisation.

Here's how it works:

1️⃣ Discretionary testamentary trusts, rights of occupancy and other trust structures that are aimed at giving your executors every possible opportunity to minimise income tax, capital gains tax (CGT) and other tax leakage;

2️⃣ Beneficiary support trusts/special disability trusts that are designed to preserve Centrelink welfare entitlements;

3️⃣ Flexible child guardianship arrangements to ensure as far as possible that your child guardianship wishes are implemented;

4️⃣ Pass control of Family/Discretionary Trusts and SMSF's; and

5️⃣ Flexible mechanics for allocating and distributing your estate assets.

Cleverly designed to minimise the potential for:

➲ Family provision claims; and/or

➲ Disputes among the beneficiaries.

Potential for Massive Tax Savings ➲ Example:

Assuming an income of $72K earned from estate assets (eg, rent from an investment property, dividends from shares, etc.) to a surviving spouse who’s total taxable income is $180K, but who has 4 minor children.

If the distribution is paid directly to the spouse under a normal will, [at the time this example was prepared] tax on the distribution was calculated to be $32,400 – HOWEVER, if the distribution is split equally [possible as a result of the Testamentary Trust] between the children, no tax will be payable!

Tax saved in this example: $32,400 … year after year after year.

A lot of care has been taken in drafting Your Smarter Mirror Wills

Your Smarter Mirror Wills have been meticulously designed in consultation with leading Australian estate planning experts to allow you to:

1️⃣  Reduce the need to update your Wills for minor changes; and

2️⃣  Greatly assist your Executor in administering your Estates.

Your Smarter Mirror Wills refer to the following separate lists/directions which importantly DO NOT form part of your Wills!

➲ List of Allocation of Personal Chattels;

➲ Digital Assets (incl. current passwords, and authentication protocols); and

➲ Funeral Directions.

This means that either spouse can update any of the above, at any time, by simply dating + personally signing a revised list/direction (no witnesses required).

NSW: Circumventing Potential Civil Liabilities

All Testamentary Trust Deeds contain broad definitions of eligible beneficiaries in order to provide as much flexibility as possible for Trust Distributions.

Long-lost siblings, uncles, aunts, nephews or even kids born or who may be residing offshore as part of their professional or lifestyle pursuits could be or become foreign persons + trigger the need for compliance with recent NSW legislation.

Failure to mitigate this risk by ensuring the Trust Deed irrevocably prevents trust distributions to foreign persons creates a situation where:

➲ If the Testamentary Trust acquires or leases NSW Residential Land (freehold or leasehold, vacant or with a dwelling incl. strata) it could potentially be liable to pay the 8% NSW Purchaser Duty + 2% Land Tax Surcharge.

Your Smarter Wills provides a Solution

Your Testamentary Trusts can be setup to either:

1️⃣  Revocably prevent any trust distributions to any foreign person; This option retains flexibility for the Trusts to reverse its position at some point in the future to allow distributions to foreign persons; or

2️⃣  Irrevocably prevent any trust distributions to any foreign person. This option is highly recommended if your Trusts plan on purchasing or leasing residential property in NSW.

Please reach our to our legal team if you need clarification or assistance with this complex decision.

Optional Extras:

➲ 💡 Trax Print Fraud + Litigation Prevention Technology $22; and

➲ 🗄 Will hard-copy printing + binding service.

Social Sharing Image: Courtesy of Ameen Fahmy on Unsplash

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What is a Free Legal Health Check? ✅

Our Legal Health Check is a process that helps you identify + prioritise your individual + business (if relevant) legal needs.

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Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

More than 1000+ Australian Lawyers use Embedded Lawyer-Logic. How does it work?

More than 1000+ Australian lawyers use this industry leading automated legal document generation solution. It uses Embedded Lawyer-Logic™ designed by leading lawyers in their respective fields.

Step 1️⃣: Information Gathering

Our intelligent online questionnaire adapts to your answers and only asks relevant questions.

Simply follow the guidance and enter the requested information about your matter.

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The information is then sent to our back-end legal document generation engine, which follows a matrix of algorithms to make decisions about what should be in your legal document, just as an expert human lawyer would do.

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Our legal team will contact you and assist you throughout the entire process.

If you are a subscribed member the cost for the time spent by our legal team to assist you is heavily discounted.

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This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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Our [Self-Service] legal documents are designed to be completed "without the intervention of a lawyer".

This approach will be appropriate for the majority of routine legal matters, where you are experienced and have learnt what needs to be considered and have gained experience in using our 24/7 online document portal to generate your legal documents instantly.

Some routine matters maybe totally new to you (meaning that you will have questions and we recommend you select our [Lawyer-Assisted] service).

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For these matters we recommend you select our [Full Service] option.

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This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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Our website + back-end system use the best possible web-based security available.

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In a more general context (outside of encrypted secure website traffic/data) it has also been said:

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Easy pass-phrase, written down password, re-used password... etc. basically, always be on the lookout for the weakest link.
Trust the technology, but never trust the weak link - the user!

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This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

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Your upgrade to our [Lawyer-Assisted] Service includes …

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Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Why does Blue Ocean Law Group℠ use a *.law website domain?

What is a *.law web domain?

⚖️ *.law is a top-level-domain (TLD) that aims to:

Promote trust in the professional legal community by creating a:

✅ Verified;

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✅ *.law offers effective branding to those in the legal community, with the ability to secure a domain name that clearly communicates who you are + the legal resources you provide.

All about *.law domain names

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How do I execute my Australian Will so that it is validly witnessed?

Valid Will Witnessing Requirements

We recommend that the Will-maker and the witnesses all sign immediately after each other, in each other’s presence and use the same pen.

This is still the best way to make sure a Will is validly executed because then there can be no argument that the formal requirements were not complied with.

Important: A Beneficiary should not be a witness as they may lose their entitlement under the Will. There are exceptions but we still do not recommend using them unless there is no other option.

Points to note

1️⃣ Use 2 independent adult witnesses who do not have any possibility of a beneficial interest in your estate;

2️⃣ Do not sign copies of the Will as they may become “valid” Wills;

3️⃣ Nothing should be attached to the original Will with a pin or paper clip;

4️⃣ No alterations should be made to the Will after it has been signed.

Please contact us (if you are unsure regarding any of the above) to discuss the best way to proceed to execute your Will when you are ready.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What can I do if COVID-19 restrictions are making it impossible to execute my Australian Will or other key estate planning documents?

COVID-19 Emergency measures for the witnessing of Australian Wills+

As an emergency response to COVID-19 some states + territories have temporarily relaxed witnessing requirements for Wills + other key documents.

The relaxations allow remote witnessing using an audio-video link (AVL) over the internet. We strongly recommend they only be used as a last resort with the involvement of your lawyer. Practical COVID-Safe alternatives such as "Will through a window!" are preferred.

See our recent blog article "COVID-19 Safe Solutions for Witnessing Wills + Other Key Documents in Australia" for more information.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Where can I safely store my Australian Will + Power of Attorney documents?

Safe Storage Facilities:

🔒 A.C.T Supreme Court
[$125 deposit, $46 withdraw. Prices effective as at 1 August 2020];

🔒 NSW Trustee + Guardian
[$29 one-time fee for a single document; $49 one-time fee for multiple documents. Prices current as at 19 November 2020].

🔒 N.T. Public Trustee
[“You can store your Will for free at the Public Trustee office in a specially maintained vault.”];

🔒 The Victorian Will + Power of Attorney Registry
[Anyone in Victoria can register information about where they keep their Will + Power of Attorney documents at no charge. There is also the option to physically store originals for free];

🔒 W.A. Will Bank
[Free service operated by the WA Public Trustee];

🔒 For Queensland, S.A. + Tasmania
[Contact Us].

Credits:

This FAQ was prepared by Suk Jae Chung | Practical Legal Training (PLT) Placement, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is the difference between per stirpes v. per capita estate distribution?

Per Stirpes = by branch = by the bloodline

Per stirpes means “by branch” in Latin, but is commonly understood to mean “by the bloodline.”

If your estate is distributed per stirpes after your death, each branch of your family will receive an equal share of your estate.

Per Stirpes ➲ Example

Imagine that Amy has three children: Brigid, Charles, and David.

At Amy’s death, all three children will receive one third of Amy’s estate ➲ if her estate was set up to pass per stirpes.

Assume that Brigid predeceased Amy, and that Brigid has two children, Eleanor and Fergus.

Now at Amy’s death, Charles and David will still receive one third of the Amy’s estate.

Eleanor and Fergus will each share in what would have been Brigid’s share, so both Eleanor and Fergus will take one sixth of Amy’s estate.

per stipes graphic
Source of example: Trust Company Oklahoma

Per Stirpes v. Per Capita

These legacy latin legal terms, whilst initially confusing, are very important and can change your childrens' (+ their heirs') inheritance.

The alternative to "per stirpes" is "per capita".

With "per capita" the share of any child beneficiary who dies before you is shared equally among your surviving children ... which means your predeceased child (and consequently, their heirs) would lose their share.

With "per stirpes", in the same scenario, instead of your predeceased child losing their share, it is preserved for their children (if any).

Additional Note:

If the term "per capita by representation" is used (also known as modern per stirpes, American per stirpes), please note that this changes the result of the “per capita" distribution so that it operates the same way as the traditional "per stirpes" distribution described above.

The use of this legal term invokes the concept of a “right of representation”.

This means the heirs of any child beneficiary who predeceases you have the right to representation so they can collect the property originally-intended to go to any predeceasing child beneficiary, so they don't lose their share.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is the maximum life of a Trust in Australia?

Trusts in Australia have a maximum life of 80 years (except in South Australia^)

Any trust that purports or attempts to last for a longer period is void.

An exception exists for Charitable Trusts created with charitable objects or purposes which can endure forever.

Notes: ^ s62. of the Law of Property Act 1936 (SA) may be used by prescribed interested parties to apply to the Court for orders forcing the South Australian Trust to vest within 80 years.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Can an existing Trust be a beneficiary under my Will?

Yes, a Will can nominate an existing trust as a beneficiary

A person can leave assets under their Will to the trustees of a trust already in existence, such as a family/discretionary trust, unit trust or charitable trust.

These are collectively known as ‘inter vivos’ trusts.

In the USA, a Will devising all or part of the estate to the trustee of an existing inter vivos trust is called a Pour-Over Will.

For the gift to be valid in Australia, however, it is necessary that the disposition would not be considered a ‘delegation of testamentary power’.

What is a delegation of testamentary power?

A delegation of testamentary power is when the person making the Will (‘the testator’) gives another person the power to decide how to dispose of their estate.

Such delegations are barred by the High Court due to their decision in the case of Tatham v Huxtable (1950) 81 CLR 39, where the Court stated that:

“[i]t is a cardinal rule… that a man may not delegate his testamentary power”.

Given that trusts often have a range of beneficiaries, there is scope for argument that a gift to an inter vivos trust by a testator is effectively passing on the decision-making power for who shall ultimately benefit from the estate.

When is gifting assets to a trust under a Will not considered a delegation of testamentary power?

Each case will be assessed on its own facts and circumstances.

Examples where the gift to an existing trust is not deemed a delegation

1️⃣ Despite the above rule, section 33R of the Succession Act 1981 (Qld) states that a trust or power (created by a Will) to dispose of property is not void, if the same power or trust would be valid if the testator had made it during their lifetime.

This is especially the case if it is easy to determine with certainty who or what class of people are intended to benefit from the trust in question.

2️⃣ In the case of Gregory v Hudson [1997] NSWSC 140, the Court determined that the deceased’s gifting of his entire estate to the trustee of a family trust for the benefit of his family was valid.

In this case, the deceased chose this method so that the independent trustees would make distributions according to each beneficiaries’ individual needs, without being influenced by the tense blended familial relations.

What are the advantages of leaving a gift to an inter vivos trust?

Potential Tax Advantages

The main advantage of leaving a testamentary gift to a trust is to ensure that that gift is not deprived of the benefit of the concessions found in s 102AG of the Income Tax Assessment Act 1936 (Cth).

If the trust deed permits the trustees to accept “excepted trust property” and the trustees hold this property separately from other trust assets, minors may receive distributions from the trust generated by the separately held trust assets, whilst being taxed at the normal marginal tax rate on those distributions.

This is very different from the rate at which distributions to minors from an inter vivos trust are usually taxed – which can be up to the maximum marginal rate of tax.

Concerns regarding legal mental capacity to understand a complex WIll (incl. a Testamentary Trust)

A gift to an inter vivos trust may also be advantageous if there are concerns regarding the testator’s legal mental capacity to understand a complex Will incorporating testamentary trust/s where the benefits of a trust are still desirable.

In this case, a gift to an existing trust is a much shorter and more straightforward Will to understand, effectively lowering the hurdle that needs to be cleared to establish a valid Will.

What are the disadvantages of leaving a gift to an inter vivos trust?

The main disadvantage is the risk that the trust deed may contain express terms which do not allow for the testator’s wishes to be effectively carried out.

There may be express terms in the trust deed preventing distributions being made to certain beneficiaries, or such distributions may only be permissible with the consent of a third party.

For this reason it is important that the trust deed is reviewed by a lawyer to determine whether any such restrictions exist.

If restrictions are identified, these may be capable of being removed while the testator is still alive so that their testamentary intentions are not defeated.

Trusts in Australia

Unless the Will was prepared recently, there is also the risk that naturally arises due to the passage of time.

Generally Trusts in Australia have a maximum life of 80 years (except Charitable Trusts which can exist in perpetuity and Trusts from South Australia where the Rule against Perpetuities has been repealed).

Thus, if the trust has already been operating for a number of years it may only be capable of existing for a short time after the testator’s death (or may, in fact, have already vested, that is, the Trust may have automatically terminated by reaching its own expressly nominated expiration date).

After the Will is executed, it is also possible that the trust's circumstances may have changed such that it is no longer appropriate to receive the gift.

For example: The trust may have exposed itself to an unforeseen risk, or the control of the trust or the members of the beneficiary classes may have changed.

It is also very easy for the trustee to lose the tax advantages provided by the s 102AG concessions by accidentally mixing capital or income and therefore potentially defeating the testator’s intentions, and potentially triggering anti-avoidance tax laws.

Conclusion

In summary, the potential disadvantages of using a Will to gift assets to an existing inter vivos trust far outweigh the potential advantages.

It is preferable (assuming the requisite mental legal capacity) to draft a new Testamentary Trust(s) into the terms of the Will.

Using a new Testamentary Trust ensure the trust will:

1️⃣ Be created in accordance with the testator’s wishes;

2️⃣ Is unaffected by external factors and other risks due to the passage of time;

3️⃣ Avoids concerns regarding early vesting; and

4️⃣ Is less likely to inadvertently trigger anti-avoidance tax laws.

Therefore, unless there are concerns regarding clearing the hurdle of the legal mental capacity required for a complex Will, we highly recommend the use of Testamentary Trusts as the default trust structure used in estate planning.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Glossary of Key Terms used in the Law of Trusts

Appointor / Principal

Is the term used in modern Trust Deeds to describe the person who has the power to appoint and remove the trustee.

Accordingly, the Appointor assumes indirect control over the whole operation of the Trust.

We generally recommend joint Appointors or at least a clear succession should the Appointor die.

If there is no nominated successor, the Appointor’s legal personal representative succeeds as the Appointor.

Where an Appointor is deemed to have lost legal capacity (e.g. which might be a possibility if the Appointor suffers from a mental condition such as dementia) and where an Enduring Power of Attorney is in place, the Attorney succeeds as the Appointor.

ATF

‘As trustee for’.

Beneficiary

Any ascertainable person or group of people can be the beneficiary of a private express trust.

Person includes a legal person (also called a legal entity) such as a corporation, unincorporated association, etc.

Charitable trust

A trust is a charitable trust when it is established for charitable purposes (objects).

“A purpose trust that is directed to exclusively charitable purposes and that exhibits public benefit".

A Charitable Trust may be quite general (for example for the relief of poverty) or highly specific (for example the care of the aged in a specific geographic region).

Charitable Trusts need not have any vesting date, and may exist in perpetuity.

Constructive Trust

Not really a trust.

It is a remedy decreed by the Court to prevent unjust enrichment.

The trustee will have only 1 duty: to transfer the property to the intended beneficiary as determined by the Court.

It is a means to disgorge a wrongdoer of ill-gotten gains.

Corpus of a Trust

Property of the trust. Any presently existing interest in property that can be transferred can be the corpus of a trust.

Cy Pres

Pronounced Sigh Pray. It is a phrase adopted from the French meaning, “as near as possible” to the original intention.

Family / Discretionary Trust

 In Australia, a Discretionary Trust is a common structure to run a business out of because it offers many taxation advantages.

For Example: The flexibility to distribute profit to different beneficiaries (including streaming of dividends to a particular individual/s), the ability to access significant capital gains concessions and stream those capital gains to a particular beneficiary.

Inter Vivos

Between living persons, someone transfers or gives property to another person while both are alive, such as a parent giving money or other property to their children.  

Trusts established during a person’s lifetime are often referred to as being an Inter-Vivos Trust.

Object

A legal term used in trusts law.  

An object of a trust is a beneficiary of that trust.

In Wills where a gift is made to a particular group or class of people, an object means someone from that group.  

For Example: The group might be described in a Will as ‘my children’ or ‘my nieces and nephews’.

Private Express Trust

A fiduciary relationship with respect to property whereby one person, the trustee, holds legal title for the benefit of another, the beneficiary, and which arises out of a manifestation of intent to create it for a legal purpose.

Resulting Trust

A resulting trust is an implied in fact trust and is based upon the presumed intent of the parties.

If a resulting trust is decreed by the court, the resulting trustee will transfer the property to the settlor if the settlor is alive, and if not, to the settlor’s estate, i.e. to the residuary devisees if any, and if none, to the intestate takers (the heirs).

Rule Against Perpetuities

At common law, the modern rule against perpetuities, is that no interest is good unless it must vest, if at all, no later than 21 years after the death of a life in being who is alive at the creation of the interest.

At common law, an interest is void from the outset if it may possibly vest outside the perpetuity period, such question being determined having regard to circumstances existing at the commencement of the period.

It is not possible at common law, to ‘wait and see’ whether the rule is in fact offended by events as they actually turn out.

The common law rule against perpetuities has been modified by legislation in all Australian jurisdictions, except South Australia where the rule has been abolished.

The most significant reforms to the common law in all jurisdictions where legislative intervention has occurred has been the introduction of a ‘wait and see’ provision, and statutory limits preventing any trust from existing for more than 80 years.

Any trust that purports or attempts to last for a longer period of time is void.

The exception to this rule is for Charitable Trusts.

Secret Trust

Generally speaking, a secret trust arises when a testator wishes to keep secret an object within the Will, such as bestowing a benefit to a political cause, or granting a trust to relatives that may be unknown to the wider family.

Secret trusts fall within two general categories: fully-secret and half-secret trusts.

The basic difference between a fully-secret and half-secret trust, is that there is no indication in the terms of the Will that a fully-secret trust exists.

Whereas, a half-secret trust will be mentioned in the Will, but may leave out the identity of the beneficiary, as well as the gift to be bestowed.

Settlor

The person who initiates the formation of the trust by the provision of the Settled Sum (usually a nominal amount). Apart from providing the Settled Sum and executing the Trust Deed, the Settlor takes no further part in the Trust operations.

A Settlor will often be a family friend or a solicitor or an accountant who will not be a beneficiary of the trust.

Note: The settlor of a Discretionary Trust must be an independent person.

Special Disability Trust

A trust which allows parents or other family members to leave assets in trust for an individual which can be used to fund ongoing care, medical expenses, accommodation, and some discretionary expenditure for that person into the future, without affecting their entitlement to a disability support pension.

Spendthrift Trust

A trust where the beneficiary is unable to transfer his/her interest, either voluntarily or involuntarily. He/She cannot sell or give away his/her right to income or corpus, and his/her creditors cannot attached these rights.

Support Trust

A trust where the trustee is required to use only so much of the income or principal as is necessary for the beneficiary's health, support, maintenance and education.

Trustee

A person (or company) appointed to hold property on trust for others, the beneficiaries subject to the terms set out in a will, as a testamentary trust. Executors are often appointed to act as trustees where a trustee role is required following administration of the estate.  However professional advisers or their firms may also be appointed depending on the circumstances.

Testamentary Trust

A trust created by a Will, which only comes into being after the testator passes away.

Testamentary Charitable Trust

A Charitable Trust created by a Will, which only comes into being after the testator passes away.

Testamentary Pet Trust

A trust for the care and support of the testator's pets created by a Will, which only comes into being after the testator passes away.

Totten Trust

Actually a Totten Bank Account [POD]* not common in Australia (used o/seas)

Trust Deed

A legal document that sets out the rules for establishing and operating your trust.

Unit Trust

The trust deed functions in much the same way as the constitution of a company, and units in the unit trust operate in a similar way to shares in a company.

Vesting Day

The Vesting Day is generally 80 years (except in South Australia) from the date of commencement of the Trust.

That is because, as a matter of law, the Trust must terminate or ‘vest’ at a date not later than 80 years after its commencement.

A provision maybe included in the Trust, which enables the Trustee to nominate an earlier Vesting Day.