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A trust is a legal structure that allows one or more people (or companies) to manage property for somebody else’s benefit. Trusts are an excellent way to manage your tax and protect your assets. Likewise, owning your business through a trust offers many advantages. This article will explain the difference between discretionary and family trusts.

Depending on what the trust is for, the person for whose benefit the trust is for might receive:

  • capital;
  • income; or
  • a combination of the two.

There are different types of trusts. These include:

  • discretionary trusts; and
  • family trusts.

What Are Discretionary Trusts?

Discretionary trusts are set up to allow the person or people managing the trust to choose:

  • who can benefit from the trust; and
  • how much money beneficiaries will receive.

Accordingly, the amount of money beneficiaries receive under a discretionary trust is not fixed, nor are the beneficiaries who may receive money from the trust. This is because the trustee has the discretion to choose the trust’s beneficiaries. Likewise, the trustee can choose how much each beneficiary will receive from year to year.

What Are Family Trusts?

Individuals usually set up family trusts as discretionary trusts that hold a family’s assets, which may include owning a family business. Usually, one or more family members will manage the trust assets for their family as a whole. While the trustee can choose who benefits from the trust, beneficiaries will only be family members since the trust is managed within the family. 

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Key Players Involved in a Trust

The table below explains the key players involved in a trust.

RoleDescription
SettlorThis person sets up the trust. Usually, the settlor will be a lawyer or accountant. Once the settlor does their part in creating the trust, they generally have no further involvement. Therefore, the settlor cannot benefit from the trust.
Trustee

This person is the legal owner of the trust property. The trustee decides how to manage the trust assets. Likewise, they make all decisions, choices and transactions relating to the property’s management. However, they do so in the interests of those benefiting from the trust. The trustee must act in the best interests of these people.

The role of a trustee is something like the role of a company director. Directors must act in the best interests of the company and its shareholders.

AppointorThis person has the power to remove and nominate trustees. Usually, this will happen when a trustee passes away or otherwise cannot continue to manage the trust. The Appointor is usually the person who is the director of the corporate trustee of the trust.
BeneficiariesThese people benefit from the money or property in the trust. The beneficiaries do not have ownership over the trust assets. Still, they have the right to be considered when the trustee decides to distribute money or property from the trust.

Trust Deed

This is the legal document that formally creates the trust and outlines how it will work. It will usually set out:

  • the objectives of the trust fund;
  • who the beneficiaries are;
  • who the trustee and appointor is; and
  • how income and assets will be distributed from the trust.

Advantages of Discretionary Trusts

People may choose to set up a trust for many different reasons. However, there are several business advantages of using discretionary trusts.

Asset Protection

A discretionary trust allows a person to hold onto their assets without being the legal owner of the property. This can have significant advantages.

For example, if a creditor pursued a beneficiary’s assets, the trust property is generally protected because the trustee is the legal owner rather than the beneficiary.

Tax Management

A company structure has to pay income tax on its net income every financial year. Discretionary trusts, however, generally do not have to pay income tax. Instead, the beneficiaries pay tax on their share of the trust’s net income. In a family trust, this means that the trustee can distribute assets to reduce the overall tax paid by the family.

Unlike companies, trusts may be eligible for the general 50% capital gains tax (CGT) discount on the disposal of capital assets.

Beneficiary Income

Discretionary trusts are a great way of providing income to beneficiaries who may be dependent or otherwise unable to manage their assets. For example, the trust can explicitly list the names of individuals that you wish to benefit from the trust. You can name the primary beneficiaries of your trust and also nominate unnamed beneficiaries. These unnamed beneficiaries can include the extended family of the named primary beneficiaries.

For example, the trustee can nominate for “the children from the marriage of John Smith and Jane Smith” (your unnamed primary beneficiaries) to be entitled to receive the trust income in the trust deed.

Disadvantages of Discretionary Trusts

Even though a trust can offer many advantages, there are also some disadvantages of using trusts as a business structuring option.

Expense

Trusts can be quite costly to set up, administer and restructure.

Liability of Trustees

Trusts offer excellent asset protection for the beneficiaries. However, because trustees are the legal owners of the trust property, they are personally liable for any trust debts incurred. Having a company trustee rather than an individual can reduce this liability.

Growth and Investment

Investors tend to favour putting their money into company structures rather than trusts. Accordingly, it can be harder to grow a business that runs through a trust. However, there are ways around this. For example, you can up a company to own and run your business, then own that company’s proportion through a trust structure, alongside investors who hold shares directly in the company.

Retaining Profits

Unlike a company, trusts are not designed to keep any profits. If trust beneficiaries do not receive all profits, the trust assets will be heavily taxed.

What Are Unit Trusts and How Are They Different?

If you are thinking about setting up a discretionary trust, you might have come across the idea of a unit trust. Unlike a discretionary trust, where the person managing the assets chooses how to distribute profits, a unit trust shares profit amongst the beneficiaries based on how many ‘units’ they have in the trust. As the name suggests, a discretionary trust gives the trustee a lot of choice about distributing profits. A unit trust has a much more fixed process.

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.

Frequently Asked Questions

What are discretionary trusts?

Discretionary trusts allow the person or people managing the trust to choose who can benefit from the trust and how much money beneficiaries will receive.

What are family trusts?

Family trusts, as generally understood, are discretionary trusts that hold a family’s assets or run a family business. Usually, one or more family members will manage the trust assets for the benefit of their family as a whole.

What is a trust deed?

A trust deed is a legal document that formally creates the trust. It also sets out the terms, rules and conditions for creating and managing it. Typically, the trust deed will list the objectives of the fund and identify the beneficiaries. Likewise, it will detail how much beneficiaries are to receive and the method of payment. Importantly, the trustee must manage the trust’s assets according to the trust deed.

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