Trust Deeds

When it comes to setting up a trust, a one-size-fits-all Trust Deed just won’t cut it.

Trusts are designed to make sure your assets are securely passed on to your chosen beneficiaries, and they can also be useful in separating out your personal assets from your business. If you’re looking at setting up a trust to better manage your assets, you will need to have a Trust Deed.

A Trust Deed sets out the purpose of the trust, who is to be the trustee, who are to be beneficiaries, as well as the rights, powers and duties of the trustees and beneficiaries. A trustee can only act in accordance with the terms of the Trust Deed.

It’s vital that you have a Trust Deed that is drafted with the intended purpose of the trust at its core, allowing the funds and assets to be managed in accordance with your intentions.  A well drafted Trust Deed will clearly set out how assets will be invested and how benefits will be paid, and anticipate the possible scenarios which may arise.

It can sometimes be easy to overlook key parts of the Trust Deed because of all the ‘legalese’. A generic trust document may sound like a good idea at first, however, such a document is unhelpful if it is too broad and where trustees can do almost anything. Trustees need to be provided with specific and clear direction in relation to how they should deal with assets.

Our dedicated and experienced corporate and commercial team is here to help you draft a modern Trust Deed that is tailored to the needs of your trust. We will make sure that all of the special circumstances (for example, incoming streaming and succession planning) and complex issues are addressed, while still remaining easy to read.

What we do

We can help you through each stage of the life of a trust, including:

  • Setting up trusts and advising on trustee duties;
  • Advising on trust law and self-managed super funds (SMSFs);
  • Drafting Trust Deeds, including where the trustee is a corporate trustee;
  • Reviewing and updating Trust Deeds; and
  • Advising on winding up trusts.

The MV difference

  • We are commercially focussed and will work to achieve the best outcome for your business.
  • We are committed to protecting your interests having regard to both legal and non-legal interests.
  • Our commercial and litigation teams work seamlessly together to enforce and protect the company.

FAQs

It’s important to ensure that your Trust Deed is regularly reviewed every 1-2 years and if necessary updated in light of new legislation and new investments, such as digital currency. Trust deeds which are out-of-date could result in significantly adverse effects on the beneficiaries and potential monetary penalties. Any amendments will need to be made in accordance with the variation power in the Trust Deed.

There are several reasons why a trust may be wound up, for example, in situations where the purpose of the trust has been fulfilled or where there are no more assets in the trust and the ongoing administration costs outweigh the benefits of the trust. All things being equal, the rule against perpetuity means that a trust cannot exist indefinitely.

The vesting date is 80 years in the ACT. The trust will need to be terminated in accordance with the Trust Deed, with particular consideration of the benefits of the beneficiaries and duties of the trustee.

It’s also important to remember that Capital Gains Tax (CGT) and Stamp Duty may apply upon winding up the trust.