What is a testamentary trust?

A Testamentary Trust is a discretionary trust which is created in your Will.  A discretionary trust (when created during your lifetime is commonly called a family trust) is where a person or company (trustee) holds property, business or investments on trust for the benefit of a number of people and related parties (beneficiaries).  The trustee has the total discretion to distribute the income and capital of the trust to the beneficiaries.  Creating a Testamentary Trust in your Will is often a more effective alternative than making a direct gift to a person under a standard Will.

What are its advantages?

Protection from divorce or separation

If a beneficiary (say your child) separates and is  involved in matrimonial property proceedings, it is possible by using the Testamentary Trust to keep your child’s inheritance separate from his or her own assets, and therefore quarantine it from a claim by the separated spouse or de facto partner.  In this way, your estate is left to your direct descendants, rather than being divided between in-laws.

Protection from bankruptcy

If a beneficiary gets into financial difficulties,  even though he or she may be bankrupt, the gift given to them via the Testamentary Trust will be protected from that bankruptcy.  These days,  with more and more people involved in financial activities (such as giving guarantees for business, borrowing or investment etc) this may be an important protection for your surviving family.

Protection for a person suffering from an incapacity 

If a person develops some incapacity, such as an intellectual handicap, alcohol or drug dependency, or just may not be able to handle money, rather than give a gift directly to that person, you can have other people control it through a Testamentary Trust.

Exercising control of your estate 

Although a standard Testamentary Trust has total  flexibility so the trustee is able to invest in whatever property or assets they wish, and may draw on capital or income from time to time as they desire, you may wish to exercise some control over this.  So, with a Testamentary Trust, the capital of the gift may be held ultimately for the children of the beneficiary so that while that beneficiary is alive, he or she has access to income only.

Tax Minimisation 

A testamentary trust can provide taxation  advantages where there are minors who are beneficiaries under the trust, as children enjoy the normal personal tax-free threshold per annum. Therefore, in a situation of a surviving wife and say three children, rather than the wife alone paying tax on the income generated from the inherited property, she can lessen the “tax hit” by distributing to other family members who are lesser income earners.

What assets are included in the Testamentary Trust?

Only assets that are in the deceased person’s name at the time of his or her death are included in that trust.  Therefore, it’s important that insurance policies are the ownership of jointly owned properties is reviewed by a lawyer to ensure that they will form part of the trust. Sometimes it is preferable that superannuation money is received by surviving spouses or children, rather than being paid into a trust.  It is appropriate to have options in your Will to enable superannuation funds to be paid either to the trust or to individuals.