What is a discretionary trust?


The trustees of a discretionary trust are able to distribute income and capital gains to beneficiaries in whatever way they desire (typically the most tax effective means).

The assets of the trust are also protected in the event of litigation against beneficiaries as there is no single individual that owns any assets so therefore creditors of an individual cannot access any assets held by a trust.

A ‘family trust election’ must also be made in some circumstances e.g. in order to distribute franking credits.  In addition, franking credits cannot be distributed to beneficiaries unless the trust has net income.

A company can be a beneficiary of a trust ensuring that the tax rate is capped at 30%, however, unless this distribution is actually paid to the company there may be other tax consequences e.g. deemed dividends and Div 7A loan issues.

Beneficiaries who receive capital gains can claim the 50% capital gains discount where the asset has been held for more than 12 months.


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