· Assets owned as joint tenants
· Life Insurance proceeds
· Superannuation Death Benefits
· Company Assets
· Assets owned within a Family Discretionary Trust.
A LAWYERSrole is to:
· Identify which of your clients are exposed / vulnerable
· Identify the issues relevant to your clients
· Only give advice on issues that are within your field of expertise
· Encourage the client to address important issues – refer them to a suitably qualified specialist
· You are the “Project Manager”.
Modern Estate Planning
Why your will should contain testamentary trusts.
What is a testamentary trust?
A testamentary trust is a trust established by a Will. Instead of leaving an inheritance directly to a nominated beneficiary, the inheritance is left in a testamentary trust, the control of which will usually reside with the beneficiary.
The trust can be discretionary (the trustee / primary beneficiary decides who will benefit) or fixed, or a combination of discretionary and fixed.
Establishing testamentary trusts in your Will provides your beneficiary with maximum flexibility from the view of asset protection and taxation advantages.
What is a protective testamentary trust?
A protective testamentary trust is a testamentary trust the control of which does not reside with the beneficiary. Protective trusts are useful when the beneficiary is under a disability and is not able to act as trustee. A trusted family member, friend or carer can be appointed trustee and will have access to trust funds to provide for the care, maintenance, education and other support needs of the beneficiary. Provision can be made for the appointment of additional or substitute trustees in the event that the original trustee is unable or unwilling to continue to act as trustee. Further, a special disability testamentary trust may be established to deal with the situation where a carer is receiving and wishes to continue to receive a pension.
Significant asset protection for the beneficiary
A beneficiary’s inheritance can be protected from the repercussions of bankruptcy. At law the assets are not owned personally by the beneficiary and therefore do not form part of the beneficiary’s personal estate. A creditor or other person claiming against the beneficiary cannot obtain the assets in the trust.
A beneficiary’s inheritance may also be protected from family law claims as the beneficiary can isolate estate entitlements from personal assets.
A beneficiary’s inheritance can be kept in the family. A modern well drafted testamentary trust may also help your beneficiary keep his inheritance from passing to non-family members. For example, by providing that on their death, the control of the trust will pass to their children (rather than to a spouse).
Significant income tax savings for the beneficiary
Well drafted testamentary trusts can give a beneficiary the option to reduce personal income tax by splitting income from the investment or inheritance between family members on low tax rates.
Beneficiary’s under 18 attract special taxation concessions. Normally penalty rates of tax apply to trust income which is paid to children under 18. However, where there is a testamentary trust, children are treated as adults for tax purposes. Thus the trustee can choose to distribute income to minor beneficiaries with each beneficiary being able to receive over $6,000 of income tax free, each year.
Significant capital gains tax savings for the beneficiary
A well drafted testamentary trust can also provide opportunities for beneficiaries to minimise capital gains tax.
Capital gains tax isn’t triggered when an asset belonging to you passes by your Will to your executor or to the trustee of a testamentary trust. Also, there is no capital gains tax when your assets are transferred from the trustee of a testamentary trust to a beneficiary (ATO Practice Statement LA 2003/12).
As with income of the trust, the trustee can choose which of the beneficiaries will receive capital gains and thereby potentially significantly reduce capital gains tax. Moreover, holding assets in the testamentary trust offers the beneficiaries the flexibility to defer sale of assets (and therefore capital gains tax) until later, when more beneficiaries may come into existence.
By incorporating testamentary trusts in your Will, your beneficiaries will be able to access numerous options which will help them protect their inheritance from loss through family law disputes or bankruptcy as well as providing strategies which can help them reduce the incidence of income and capital gains taxes.
Expertly drafted testamentary trusts contained in your Will offers your beneficiaries’ flexibility and options not available under standard Wills, which could result in significant advantages to your beneficiaries.
Wills offer excellent tax planning opportunities. Despite this, they are also one of the most neglected areas of tax planning. If you are setting up a will, a key to relieving the tax burden on family members is to use testamentary trusts. Almost endless flexibility exists in structuring such trusts to achieve tax and other advantages.
Tax free grandchildren
Testamentary trusts provide substantial scope for tax savings by allowing beneficiaries under the age of 18 to have the benefit of the adult income tax marginal rate scales (for the 2007-08 year, any income children receive over $1,667 is taxed at 46.5% to prevent income splitting).
A properly structured testamentary trust can thus ensure that income is tax-effectively distributed to the deceased's children or grandchildren, despite remaining under the control of a suitable trustee. Tax is saved by splitting income across one or more minor beneficiaries rather than adults who are typically taxed on the top marginal tax rates.
By way of example, if the trustee of a testamentary trust distributes $50,000 to two adults, (already in the top marginal tax bracket of 46.5%), the tax cost is $23,250.
This compares to a tax cost of $5,700 if the same income was distributed to two children with no other income by the testamentary trust (the children will each receive the $6,000 tax-free threshold).
This represents a tax saving of $17,550 on a trust distribution of $50,000. In practice the parents of the minors would control the funds in both cases.
Significant flexibility and savings
In addition to the obvious tax advantages outlined above, a number of other aspects of testamentary trusts make them a desirable tax planning vehicle:
· these days, divorce is an unfortunate fact of life, and can often result in hefty payouts through settlements and/or maintenance obligations. Testamentary trusts can be structured to retain assets within a predetermined family line, potentially keeping them out of the reach of ex-spouses. In determining divorce settlements, courts have so far been disinclined to interfere with arrangements that have been established by a testamentary trust
· similar arrangements can be made to protect future insolvent beneficiaries. Typically, a bankrupt is forced to disgorge inherited assets or income. Under a testamentary trust, a bankrupt beneficiary's share of assets and income may be withheld by the executor until they are discharged from bankruptcy
· testamentary trusts open up tax planning possibilities in terms of other taxes as well. No stamp duty is payable on the creation of a testamentary trust. If assets such as land are retained in the trust, they may, in some states, escape land tax aggregation provisions (consequently, liability to pay land tax may be considerably reduced). Through a trust, similar advantages can be obtained in relation to payroll tax grouping in some states
· a testamentary trust can be created to extend over a number of generations. This gives the deceased influence over the assets for a period beyond that usually available
· often assets can be squandered or misused in the hands of beneficiaries (especially young beneficiaries) and the productive value of those assets can be depleted or lost for future generations. A testamentary trust can shift control of assets to an independent trustee having investment expertise. That way, beneficiaries can receive a specified income stream from the trust whilst the value of the assets is preserved, if not increased.