A trustee is the legal entity that holds the assets of a trustTrustees have significant power as they have the authority to distribute trust income, sometimes at their own discretion.

Throughout the life of the trust, there may be circumstances which require you to change the trustee controlling the trust. This article sets out the tax implications that may arise as a result of changing trustees.

Does a Change of Trustee Trigger CGT Issues?

A change of trustee involves the transfer of legal title. However, as long as it is done within the scope described in the trust deed, it should not trigger capital gains tax (CGT) consequences. This is because the relevant taxpayer for the trust asset is the office of the trustee, regardless of the identity of the particular trustee from time to time. 

Does a Change of Trustee Trigger Duty Issues?

Trustees have legal ownership over the trust assets. Changing the trustee will therefore require a transfer of ownership over the trust assets from the old to the new trustee.

A transfer transaction may trigger duty tax if the trust holds dutiable property at the time of the change. Dutiable property broadly includes:

  • land;
  • real estate;
  • shares in a company;
  • business assets; and
  • partnership interests.

In New South Wales (NSW) and the Australia Capital Territory (ACT), stamp duty is generally payable on a transfer of ownership for trusts which:

  • people establish in those states; or
  • hold dutiable property in those states.

In all other states, an exemption is generally available when the duty arises as a result of a change in trustees. This means there should not be any duty payable when changing trustees.


There are some exemptions or concessions from this tax available in each state or territory. The particular rules and requirements differ from one jurisdiction to the next. But generally, you must meet the following requirements to qualify for an exemption:

  • you must enter into the trust for the sole purpose of changing the trustee of a trust;
  • the transaction must not change the rights or interests of the trust beneficiaries, or terminate the trust; and
  • you must have paid any previous transfer duties on all trust acquisitions.

Note that, in NSW, there are limits on exemptions to ensure that continuing trustees cannot be a beneficiary if a new trustee has been appointed (where there are multiple trustees for a trust). Limits may also apply if the transfer is part of a scheme that detrimentally affects the interest of any parties to the trust.

If you do not meet the exemption eligibility requirements, you may have to pay stamp duty when changing trustees.

Resettlement of Trusts

Regardless of which state your trust is based in, make sure you first look at the trust deed before changing trustees. You need to make sure that:

  • the current deed allows for a change of trustees to take place; and
  • you follow the requirements and procedures stated in the deed to execute the change.

If the change is considered significant enough that it affects the ‘foundation’ of the trust, it may give rise to a resettlement of the trust. A resettlement effectively means that the relevant changes are so fundamental that the old trust is taken to have ended and a new trust has arisen. This gives rise to both CGT and duty consequences.

Key Takeaways

While changing trustees of a trust does not normally trigger CGT consequences, there may be state or territory duty consequences that apply.

The rules surrounding exemptions differ in each jurisdiction. Therefore, it is important to check whether your trust is eligible for any exemptions in the particular jurisdiction. If your trust was established, or holds dutiable property, in NSW or the ACT, you should seek tax advice as there is a higher chance that duty liabilities may arise.

If you need assistance with changing trustees or determining the resulting tax implications, contact LegalVision’s taxation lawyers on 1300 544 755 or fill out the form on this page.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Natasha Bahari
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy