Testamentary trust will Lawyers in Melbourne & Ballarat

Testamentary trust wills are often used when estate planning to ensure the people you want to benefit from your assets when you pass away. It’s a way for you to have more say over how your income and assets are distributed. Our lawyers based in Melbourne and Ballarat can help you create a testamentary trust will and make sure it covers the relevant areas of family law.

Our experienced business advice lawyers can help you choose the best structure for your business both now and in the future.

What is a testamentary trust will?

When you pass away you can create a testamentary trust. This is when your will allows for some or all of your assets to be looked after for the people you want to receive them, also called your beneficiaries. You can include a wide range of assets in your testamentary trust will including property, superannuation, jewellery and investments.

In your will you can also nominate who the trustee of your testamentary trust will be. This person isn’t necessarily the executor of your will, they can be someone else. The trustee is responsible for making sure your assets are distributed to the people you want to when you want them to have it.

Our lawyers can help you set up a testamentary trust will. You can outline who the trust beneficiaries and trustee will be and how you want your assets to be distributed after you die.

Benefits of a testamentary trust

A testamentary trust will can benefit your beneficiaries in several ways. Depending on the terms of your will, this may include:

  • Tax benefits. Depending on how the assets and income are distributed to your beneficiaries it may be possible to minimise the amount of income tax, capital gains tax or stamp duty they need to pay;
  • Periodic payments. If you have young children or someone who needs to be looked after over a long period of time, income or assets from your testamentary trust will may be distributed periodically rather than in one lump sum;
  • Preserves the assets. When assets are held in a trust creditors and people your beneficiaries owe money to can’t access it; and
  • Capital payments. Depending on their needs, your beneficiaries may need to access lump sums rather than receive regular income from the trust. This could help them buy a home or business, for example. You can also choose to leave the capital of your assets to one beneficiary while another benefits just from the income.

Discretionary testamentary trust

A discretionary testamentary trust is where the trustee can decide which trustee beneficiaries receive income or assets from your estate and when they receive them. This type of trust is set up under the testamentary trust will and gives the trustee more power to decide what to do with the financial assets of the trust. The trustee is still required to follow your wishes under your will, which includes who the trustee beneficiaries are.

Capital protected testamentary trust

A capital protected testamentary trust divides the income and capital of the trust. This means you can choose for some beneficiaries to receive the income from the assets in the trust while other trust beneficiaries receive the assets that remain in the trust (the capital). A capital protected testamentary trust is often used where one partner wants the other to receive an income while they live and then give the capital to their children. The testamentary trust will can outline who the trustee beneficiaries are, when the beneficiaries can receive a share of the income or capital and any other special conditions.

Special disability trust

A special disability trust is a type of testamentary trust will. It allows you to leave money to family members who have a severe disability without affecting their ability to access social security benefits. There are very specific rules that guide how you should set up a special disability trust, who the trustee beneficiaries can be and how the trustee must manage the trust. Our lawyers can help guide you so that you set up your testamentary trust will properly.

How MNG Lawyers can help

Writing your will can be difficult and emotional, but our will lawyers can help make the process simple. Whether you want to set up a testamentary trust will, special disability trust, capital protected testamentary trust or discretionary testamentary trust, we take the time to listen to you, explain the law in plain English and make sure your wishes are set out in your will. We will also keep your best interests in mind and give you peace of mind so you don’t need to worry about what happens to your beneficiaries when you die.

Frequently Asked Questions

Yes, you can change your business structure if you find it no longer meets your needs. Depending on the complexity of your business and the structure you have and want to change to, changing how it’s structured can be relatively simple or may be quite costly.

While it’s not always essential that you have an agreement, for some business structures we recommend that you do have an agreement. For example, a partnership agreement would set out the rights and responsibilities of the partners. Similarly, a shareholders agreement sets out the obligations and rights of shareholders in a company. If you’re establishing a trust, you will need a trust deed to be drawn up.

Some business structures do require specific legal registrations. For example, a sole trader doesn’t have to register their business but a company must be registered with the Australian Securities and Investment Commission (ASIC). Regardless, if you have a business name that you use publicly it may be worthwhile registering your business name.

Get in touch today, always in confidence.

We’re here to help. It’s our top priority to ensure your needs and concerns are met every step of the way.
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