Adelaide Lawyers - Testamentary Trust Wills

Best Estate planning lawyers in AdelaideTestamentary Trust Wills can help your beneficiaries to minimise tax and protect their inheritance. These Wills do not cost much more and many of our clients enjoy the benefits – read their Reviews. Call us on a no-obligation basis to discuss testamentary trust wills, your estate plan and any other matters that require assistance from our Wills and estates lawyers.

FAQs about Testamentary Trust Wills

What are Testamentary Trust Wills?

A Testamentary Trust Will is a Will that creates a Trust (or Trusts) upon the death of the Will maker.

A family discretionary trust comes into effect immediately upon signing the trust deed. A testamentary trust however, has no effect until the death of the Will maker.

In a simple Will, the Will maker gifts family assets directly to the beneficiary whereas in a Testamentary Trust Will, the Will maker gifts the assets to a Trustee of a Trust that is created in the Will. The Trustee will hold the assets on trust for the benefit of a range of potential beneficiaries. Most Testamentary Trust Wills are drafted so that the Trustee will have discretion as to which beneficiary of the trust receives income and/or capital from the Trust Fund. In that way the Trustee can direct taxable income to the beneficiaries that will pay the least income tax and the assets are protected from creditors of the beneficiaries. Doing so also helps to avoid any legal action or matters related to contesting a Will.

In certain situations, the beneficiaries of a testamentary trust would be able to save many thousands of dollars in tax every year.

How a testamentary discretionary trust works flowchart

Who Controls Testamentary Trust Wills?

If you want to set up a separate Testamentary Trust for each of your adult children, it is likely that you would appoint each child as trustee of their own trust. Alternatively, you could appoint someone else, such as your executor, until your child attains a certain age.

Generally, each trust would have a Primary Beneficiary and that person would also be the Trustee. All other potential beneficiaries would in some way be related to the Primary Beneficiary. For example, if the Primary Beneficiary was your son, then the other beneficiaries may include his spouse, their children and their grandchildren. None of the potential beneficiaries would be entitled to any part of the estate assets as your son would have absolute control of the trust.

What about my superannuation?

Provided that you are survived by a spouse or dependant child it is usually a good idea to ensure your superannuation goes directly to them via a binding death nomination. Find out more

Does a Testamentary Trust Reduce Tax Liability?

The Trustee of the Testamentary Trust would normally distribute all income generated in each financial year and, as such, the trust itself would pay no tax. Each trust beneficiary would be liable to account to the ATO for the income they received from the Trust.

The Trustee would generally distribute income to General Beneficiaries of the trust who had the lowest income. Unlike the situation with family trusts (where infant beneficiaries are only entitled to $416 pa income tax-free and then start paying 45 cents in the dollar!), infant beneficiaries of a Testamentary Trust are treated like adults for tax purposes (being entitled to $18,200 pa before paying tax at the lowest marginal rate of just 19 cents in the dollar). Obviously this money can be used to pay expenses associated with raising a child rather than your after-tax dollars.

An example is set out below where the adult beneficiary David is married to Sue who is the full-time carer of their infant children Alex and Chris. David’s annual salary is $80,000 and so any further income will be taxed at 37 cents in the dollar:

  • Scenario 1 (No Trust): David’s father dies and leaves David $1,000,000. David invests his inheritance and receives an annual income of $50,000. David will pay $18,500 each year in additional tax; or
  • Scenario 2 (Testamentary Trust): David’s father dies and leaves David $1,000,000 via a Testamentary Trust which David controls. Each of David, Sue, Alex and Chris are potential beneficiaries of the Trust. David distributes the sum of $16,666.66 to each of Sue, Alex and Chris . The money is used to pay normal family living expenses of each family member and because the beneficiaries have no other income, there is no tax payable saving David and his family $18,500 each year!

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Can a Testamentary Trust Protect Estate Assets?

The assets of any trust (including a Testamentary Trust) do not beneficially belong to the Trustee. The Trustee only holds those assets on trust for the benefit of the potential class of beneficiaries in the trust. If a beneficiary is involved in a messy matrimonial split, the assets in the Trust Fund are not available for distribution between the husband and wife. Similarly, if a beneficiary is sued by a business partner, the assets in the Trust Fund are safe. The premise is that the Trust Fund assets are controlled by the Trustee but do not belong to the Trustee.

What is the Cost of Setting Up a Trust?

Most Testamentary Trust Wills only cost from $660 inc GST more than the cost of a standard Will. There is usually no extra charge for having multiple trusts (say one for each child) in the one Will.

Testamentary Trust Wills are an excellent estate planning tool that you should consider when making your Will, irrespective of your financial position. If you are considering a Testamentary Trust as part of your estate plan please contact our estate planning lawyers, Michelle Crichton or Emma Marinucci on 8362 6400 to discuss on a no-obligation basis. We are also here to discuss any matters related to contested Wills and deceased estates.

Read our Client Reviews and then talk to us about Testamentary Trust Wills and how to set up trust funds.

Key People for Testamentary Trust Wills

  • Emma Marinucci

    Emma Marinucci

    Emma specialises in wills and deceased matters including disputed wills, contested estates and inheritance claims.

    Emma is a compassionate and skilled lawyer dedicated to her clients. Emma’s sole focus is to ensure that her clients receive the very best outcome possible.

    Call Emma on 8362 6400 or .

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  • Michelle Crichton

    Michelle Crichton

    Michelle is a specialist lawyer in wills and estates, divorce and injury matters. She has a strong track record in achieving excellent results.

    Michelle's legal knowledge is excellent and she has a strong commitment to client service. She is fiercely protective of her client’s rights and works hard to ensure her clients receive the best outcome.

    Call Michelle on 8362 6400 or .

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  • Danny Beger

    Danny Beger

    Danny has a keen interest in all types of trusts and testamentary trusts in particular. Danny is a commercial lawyer with over 20 years of experience. He has a wealth of knowledge in relation to estate planning structures, asset protection and tax minimisation.

    Call Danny on 8362 6400 or .

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  • Anne Waddell-Smith

    Anne Waddell-Smith

    Anne is an experienced and well respected Adelaide lawyer who practices exclusively in the areas of Family & Divorce Law, Wills & Estates, Probate and Inheritance Claims.

    Call Anne on 8362 6400 or .

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