Hi there
I have a family trust set up in New Zealand which I am the Trustee & only Beneficiary of this trust, what I want to know is how do I purchase an investment property in Australia under the trust with a mortgage through an Australian bank, and also if I have a partner whom I've been with in Australia for more then 3 years will they be entitled to any portion of that investment property if the relationship should cease.
Under Australian law you cannot have a trust of which you are the trustee on only beneficiary. By definition a trust is A holding property for B. You cannot hold proeprty for yourself. THis would be the case under NZ law too I am sure.
The trust assets would be property of hte marriage and could be taken into account under a separation.
The trustee would purchase the property here as per normal. I am not sure how a lender would view lending to a trustee of a foreign trust as the proper law of the trust would probably be NZ.
It may be worthwhile just setting up a new Australia trust as this may be cheaper than seeking legal and taxation advice and worrying about amending the deed to suite the lenders etc.
Terryw | Structuring Lawyers Pty Ltd / Loan Structuring Pty Ltd
http://www.Structuring.com.au
Email MeLawyer, Mortgage Broker and Tax Advisor (Sydney based but advising Aust wide) http://www.Structuring.com.au
I agree with Terry. I think that your Trust may actually be invalid at common law.
Setup a Trust in Australia through a lawyer and it will be properly done.
You could also get a Binding Financial Agreement done with your partner to restrict her assets to the trust. She would have to agree, it would have to be done correctly and she would need to seek independent advice. Your solicitor would also have to be comfortable that the advice she received was sufficient. Even then they help but are not necessarily bullet proof.
We have recently decided that, due to the terribly setup online trust and companies we see all the time, we are going to do trusts with company as trustee and basic advice as a service rather than an income stream ($1000 including outlays). As a boutique commercial firm , we are obviously not doing this for the money, especially when ASIC fees are over $400 alone. I see so many poorly established structures where people have tried to setup online to save money. We would rather make minimal money on the structure setup and spend our time helping people make money in their ventures, and build commercial relationships going forward, than trying to fix the structural problems later on.
RPI | Certus Legal Group / PRO Town Planners
http://www.certuslegal.com.au
Email Me | Phone MeProperty Lawyer & Town Planner
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