The trustee(s) (there may be more than one) of a trust may be a person or a company (the latter is known as a corporate trustee). In either case, the trustee must be legally capable of holding trust property in their own right. The trustee holds the trust property for the benefit of the beneficiaries.
Where the trust is established by deed (which in the case of a deceased estate is the will), the trustee must deal with the trust property in line with the intentions of the settlor as set out in the trust deed. They must also act in accordance with the relevant state or territory law regulating trusts, and with any other applicable law, including tax law.
personally liable for the debts of the trusts they administer, and
entitled to be indemnified out of the trust property for liabilities incurred in the proper exercise of the trustee’s powers (except where a breach of trust has occurred).
Under tax law, the trustee is responsible for managing the trust’s tax affairs, including registering the trust in the tax system, lodging trust tax returns and paying some tax liabilities.
A trust beneficiary can be a person, a company or the trustee of another trust.
The trustee may also be a beneficiary, but not the sole beneficiary unless there is more than one trustee.
Beneficiaries may have an entitlement to trust income or capital that is set out in the trust deed or they may acquire an entitlement because the trustee exercises a discretion to pay them income or capital.
Generally, the beneficiaries are taxed on the net income of a trust based on their share of the trust’s income – regardless of when or whether the income is actually paid to them.
Hybrid discretionary trusts can be hybrid discretionary or hybrid unit trusts. The former are the more common and take the best features of both discretionary and unit trusts and mixes them together in the one entity to create a powerful and flexible tax planning solution.
They are typically used to gear into property where an individual will borrow to purchase the units in the trust (usually using the property purchases by the trust as security) and then, when the property is no longer geared, the trust can repurchase the units (often borrowing money to do so).
Care needs to be taken when establish such a structure as not all trust deeds are adequate to allow the individual to claim the tax deduction for the interest expense on the loan.
Trusts are a useful investment structure, but are often not fully understood.
Briefly, the trust is formed by executing a deed which documents the establishment of the trust.
The trustee determines to whom and in what proportion the income/assets of the trust are distributed.
The appointor (usually the person establishing the trust) has the discretionary power under the trust deed to remove and replace the trustee. The appointor has the power to nominate a successor on his or her death and failing any such appointment, the personal representative of the appointor will become the new appointor.
The specified beneficiary are usually the husband and wife or partner and so by definition the range of beneficiaries include any children and any related entities (any companies of the which the specified beneficiaries are directors or shareholders).
A trust can distribute income and capital gains in accordance with the trust deed, however, it cannot distribute losses. Losses can be carried forward to be offset against future income. A trust can also retain income, and if that income is taxable, then tax is payable at the top marginal rate plus the Medicare levy.
Testamentary trusts which are formed upon the death of a person who has specified its creation in a will are discussed in Estate planning.
Note that Centrelink may include the income and assets of a trust when working out your social security payments if you are considered to be a controller of a trust. Further information can be found at the Centrelink website.
Below is our video tutorial on who to appoint as the trustee of your trust:
