Tax and legal advice

How do you ‘Will’ assets held by a family trust?

By Brian Hor

Wealthy clients often hold assets in a family trust. And then the trust principal dies...

One of the primary appeals of family trusts is the flexibility which that structure allows in distributions of income and capital: family and related entities can be assisted as the trustees see fit.

But what happens once the trust principal has deceased? Their will only deals with assets directly owned by them and doesn’t extend to assets held in the family trust.

So, how do you ‘Will’ assets held in a family trust?

What is the process and what are the traps? 

This may be because of the trust having been set up to help save tax through splitting the income of the trust between family members on lower tax rates than the client, or perhaps the trust was set up in order to shield investment assets from the possibility of exposure to litigious claims against the client due to their profession or business.

Often both reasons apply when establishing family trust. 

In fact, with the proposed caps being sought to be imposed by the federal government on the amount that wealthy clients can put into the concessionally-taxed superannuation environment, arguably the popularity of family trusts will only increase – particularly where they are established with a separate “bucket company” as a beneficiary so that the tax payable on trust income can be at least limited to the corporate tax rate, which is likely to decrease over the coming years.

From an estate planning perspective, family trusts pose an interesting issue for clients – who typically assume that the assets of the trust are “their” assets. Namely – how does the client pass ownership of assets under their will where those assets are not actually owned by the client in their personal names but are instead owned by a family trust?

The answer is simple. You don’t.

What you do instead is to focus on passing on the control and benefit of those assets, rather than legal ownership of the assets themselves. That means passing on control of the legal owner of the assets – the family trust.

Usually this can be achieved in one (or more) of three ways:
• Passing on control of the trustee;
• Passing on succession of the role of appointor; and/or
• Amending the trust deed for the family trust.

As the trustee is the legal owner of the assets of the trust and is the controller of the trust, passing on control of the trustee can effectively pass on control of the family trust and therefore the assets it holds.

Where the trustee of the family trust is a company, passing on control of the trustee may be as simple as gifting the shares in the company. This is something that actually can be accomplished via a will.

For most family trusts there is a role for someone to be able to appoint and remove the trustee, for example where the trustee has lost capacity. This role is often referred to as the “appointor”, although it can be referred to by any other name (such as the parent, the guardian, the protector, etc). The trust deed for the family trust will usually specify how this role is passed on to another person if the appointor dies or loses capacity, and therefore the trust deed must be consulted for the appropriate method of succession. In some cases the appointor has the right to determine their own successor by written instrument such as a deed or by will. If so, and if the client is the appointor, then the client can achieve by will the passing of “ultimate” control of the trust, by nominating their successor by Will in accordance with the terms of the trust deed.

But ultimately the ability to pass on control of the family trust will depend on the terms of the trust deed, which must be reviewed very carefully.

In particular, and in stark contrast to most modern standardised family trusts that you can buy cheaply online, the trust deeds for older family trusts were usually tailored to the specific circumstances of the family concerned.

Some of the types of provision made in older deeds to ensure the succession of control of the trust included:
• Specifying the order of succession of the role of appointor, eg the trust deed might nominate various persons (typically family members) to be “nominated beneficiaries” of the trust, and on the death or disability of the appointor the role would pass down to the next living and capable person on the list of nominated beneficiaries in the schedule to the deed;
• Specifying who could be the trustee of the trust, eg the trust deed might state that the trustee from time to time could only be a company in which certain family members were directors or shareholders and in certain proportions.

Where the “built in” provisions of the trust deed for the succession of the trustee and/or appointor does not suit the wishes of the client, it may be necessary to amend the terms of the trust deed itself so as to enable the estate planning wishes of the client to be implemented.

This of course assumes that there is a power to amend the trust deed incorporated in its terms. If not, or if there is any doubt as to how to exercise the power to amend the trust deed, it may be necessary to apply to the local State or Territory Supreme Court for guidance regarding the interpretation of the trust deed, and perhaps even an order by the Court to amend the trust deed appropriately.

Even then, there is no guarantee that a court will be able to assist. In the recent case of Re Dion Investments Pty Ltd [2014] NSWCA 67, the NSW Supreme Court considered whether the power to vary a trust deed is a “transaction” for the purposes section 81 of the Trustee Act 1925 (NSW), which allows the court to make orders giving effect to certain “advantageous transactions” involving a trust. The Court held that the section did not permit alterations of the terms of the trust instrument – however, it does permit the Court to authorise transactions that in the management or administration of trust property are “expedient” to be undertaken, even where to do so overrides the terms of the trust.

Another recent Western Australian case, Mercanti v Mercanti [2015] WASC 297, was directly about amending the terms of a family trust in order to implement the estate planning wishes of the client. In that case, the validity of purported amendments to two discretionary trust deeds was challenged. The amendments in each trust purported to delete the existing definition of appointor who was defined to be a nominated person and replace it with his son.  After the son purported to exercise his powers as appointor to change the trustee, the original nominated person argued that each deed’s variation was invalid as they were not in accordance with the variation power.

The Court decided that the change of appointor was valid in one deed but not valid in the other deed, based on the wording of the variation clauses. 

In particular:
• The amendment power in one deed extended to “vary all or any of the trusts, terms and conditions” in the trust deed, and this was held to be sufficiently broad to allow the change of appointor;
• However, the amendment power under the other deed did not extend to changing the appointor, as the deed only gave the power to “vary all or any of the trusts” under the trust deed - not to also vary the terms and conditions of the deed.

Ultimately, the ability (or otherwise) to pass on the control of a family trust by any means depends upon the terms of the trust deed, and therefore it will be necessary to have the trust deed reviewed by the appropriately qualified and experienced lawyers.

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About the Blogger

Brian Hor

Brian Hor

Brian Hor is a special counsel for superannuation and estate planning at Townsends Business and Corporate Lawyers.

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Tune in to the latest episode of Property Showcase, the podcast with the inside track on the products and businesses that will help turbocharge your portfolio, maximise returns and make your overall investment experience seamless and stress-free!

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To hear more about these services, make sure to tune in to this episode of Property Showcase!

 Make sure you never miss an episode by subscribing to us now on iTunes!

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Son is able to write all types of residential and commercial property loans.<\/p>\r\n

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    In this episode of Property Showcase, director of investment services for Open Corp Michael Beresford,\u00a0joins\u00a0editor of Real Estate, Tim Neary to share why he disagrees that the cooling market means that the best times are behind us.<\/p>\r\n

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Mortgages in a tighter lending economy and why Brisbane is a good option
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  ["title"]=>
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Sana and Mona Ali moved to Australia from Pakistan at the age of 15. Years later, the once-struggling migrants successfully turned their $40,000 savings into a $5 million-portfolio, earning the moniker “The Property Twins” — all before the age of 30. How did these millennials make their way to the top?

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The Ali sisters lived in low socioeconomic conditions for years since arriving in Australia in 2000, but instead of accepting their fate, they used their circumstance as motivation to work hard and achieve financial security.

According to Sana: “Moving countries was a huge personal challenge. We were living in a low socioeconomic area of Sydney and we just saw people around us living really good lives. It really pushed us and made us wonder, ‘What if we could buy more than one house?’”

They initially wanted just a strong financial foundation for themselves and their family and the sense of security brought about by owning a home. In less than a decade, they got all of it and more.

Aside from being able to build a 10-property portfolio, the Ali sisters were also successful in establishing a mortgage business that aims to help investors make the best decisions for their own wealth-creation journeys.

“We just want to feel that Australia is really home and to have our roots here,” Mona highlighted.

How it all started

What they lacked in funds, the Ali sisters made up for continuous education, training and mentorship.

In 2009, they have both spent years in the Information Technology and Project Management fields before progressing through finance roles. The high-net worth individuals that they constantly work made them realise that there’s more they can aspire for than corporate jobs.

They started doing research and eventually bought their first property in Parramatta through their combined savings of $40,000 and the aid of the First Home Owners Grant. Seven months later, they bought their second property in Blacktown.

Mona shared: “I personally wasn’t a good saver, because I loved shopping and shoes. Nothing wrong with that, but looking back, it's like a ‘need it versus want it’ question. Obviously, I did buy a lot of shoes but we didn’t go travelling and all of that. So, we did have some savings.”

The Ali sisters opted for cheap properties in the lower end of the market to jumpstart their investment journey for low-entry prices.

“The cash flow meant when we did rent the properties out, they could look after themselves,” Mona highlighted.

Sana and Mona advise investors to avoid being afraid of starting small. Being realistic instead of aiming for a dream home on their first shot at investing helped them enter the market sooner than later.

After all, property investment is a long-term commitment and, essentially, a kind of “delayed gratification”.

The twin’s property portfolio grew to consist of eight more properties spread across Western Sydney and Brisbane, including units, villas and townhouses.

Strategies

Not long after they started investing in properties, the Ali sisters sold their first two properties in Sydney to take advantage of the property boom that happened in the city. Prior to selling, they did cosmetic renovations on these properties to add value and eventually extracted equity from them.

The first property returned around $330,000 while the second property returned around $190,000.

Mona and Sana used the extracted equity to make their third and fourth property purchase, which are strata properties located in Blacktown. Less than 10 years later, the same properties have increased in value by 90 to 100 per cent.

As the market went more stagnant, Mona and Sana continued increasing their savings to improve the buffer for their portfolio. They saved 20 to 30 per cent of their salary, sacrificed travels, minimised eating out and drove a Kia Rio for years to save as much as they could.

For years, they carefully weighed their needs and wants to determine the things they could live without as they are building their portfolio.

Where to buy

The Ali sisters deliberately chose to buy most of their properties in the Western Sydney region, between Parramatta and Penrith.

According to them, having properties in such good locations, as in close to transport and other valuable infrastructure and establishments, helped them maintain good cash flow and minimise the impact of property investment on their finances and lifestyle.

While they have implemented different strategies throughout their investment journey, good location is one of their non-negotiables.

Sana explained: “We wanted to make sure the properties were well-located. That’s formed the foundation of our property strategy, where we make sure that properties are close to the train station, or a big shopping centre, because that’s what’s going to drive the demand down the track.”

Who to work with

Unlike many investors, the Ali sisters didn’t recognise the value added by property professionals to their portfolio in the beginning. In fact, it took them four purchases to seek the guidance of experts. Needless to say, it turned out to be among their more costly decisions.

According to Sana: “You don’t know what you don’t know, and we didn’t know any better. In hindsight, it would have been good to work with a broker for our initial couple of purchases.” 

Through online forums, they found out about the benefits of working with a mortgage broker and has since worked with a few throughout their investment journey. They taught them not only what they needed to know about mortgage broking, but also what they want to be done differently.

Eventually, Mona and Sana grew to love the “numbers side of property” and went on to establish their own mortgage business, The Property Twins. The business aims to empower investors by offering different services, including building portfolio roadmaps and finding better loans.

According to them, their personal experiences as investors consistently help them provide the best customer service and most effective advice even amidst changing broking spaces.

Mona said: “We really look at building road maps for our clients upfront. On paper, we really put the options down — lender A, B, C, D, in that order — so you continue maximising what's really possible for you."

“Whilst you have no control over the lending policies or where your interest rates go, if you’re making that strategic choice, you’re keeping a lot of doors open for later investment," she added.

Helping investors

As investors-turned-mortgage brokers, Mona and Sana seek to improve the knowledge of Australian investors and ultimately help them achieve their financial goals. Their experiences as investors who, quite literally, started from the bottom allow them to provide realistic and well-rounded advice to different types of investors.

Instead of acting as mere intermediaries who bring borrowers and lenders together, they take on a holistic approach and help budding investors establish a good foundation for their investment journey.

The most important advice they give to their clients is to always implement long-term strategies, but also be flexible enough to alter plans accordingly along the way.

Sana explained: “You need to look at the big picture rather than just one product or one rate focus, because it's a long-term strategy for you.” 

“We are taking our clients on a journey. It’s not about one transaction at a time, it’s about the big picture and really educating them through the process, through the decisions that they are going to be making — just talking through the pros and cons, the rates and how it's impacting them and what their plans are in the next six to 12 months," Mona highlighted.

Finding the right mentors is critical to success in property investment, according to them. Finding the ones who will be willing to understand your goals, capabilities and limitations as an investor and give you tailored advice will certainly help you fast track your wealth-creation journey.

In fact, Mona and Sana themselves have made it a point to stay in contact with their mentors even after they have successfully crossed the $5 million-line.

As mortgage brokers, the Ali sisters go above and beyond their responsibilities to serve as lessons and inspirations to budding investors.

Mona said: “It’s been really rewarding to see the changes that people have had or the smart decisions our clients have made over the last couple of months. Whilst we’re not property coaches or mentors, that naturally comes to us.

“We pretty much hold their hand and say, ‘Look, this is what we would buy, this is what would make a good property and this is what you should be looking for, and where you should be looking.’ When you’re working with someone who’s been there, where you want to go, you cut down 10 years’ worth of effort,” she concluded.

 

The information has been sourced from propertytwins.com.au, realestate.com.au, Daily Mail and the Smart Property Investment website.

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Stories of success: The migrants that became Australia’s renowned Property Twins
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Will Magee has had ambitions to enter into the Australian property market for quite some time, but it has been more than just finances holding him back.  Having been granted permanent residency just two weeks ago, Will is wasting no time and is now in the process of signing papers and finding his first investment property.

" ["fulltext"]=> string(2483) "

In this episode of the Smart Property Investment Show, Will joins host Phil Tarrant to share why he is purchasing his first property in partnership with his brother, discuss the complications that can arise from such a strategy, and unpack the ongoing plan for building a joint property portfolio with his brother.

Will will also share how they approached saving for their first property, why he is taking out the mortgage in his name exclusively, and share their savings plan for the year ahead.

If you like this episode, show your support by rating us or leaving a review on iTunes (The Smart Property Investment Show) and by following Smart Property Investment on social media: FacebookTwitter and LinkedIn.

If you have any questions about what you heard today, any topics of interest you have in mind, or if you’d like to lend your voice to the show, email [email protected] for more insights!

RELATED AREAS OF INTEREST:

From property in Australia to a ski lodge in Japan
Mortgage Trusts, an alternative first step for property investors
Should a real estate title be in one person’s name only?

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A property investment plan years in the making

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