Hi all,
can anybody tell me if there is any problem with a family trust without an appointer?? thanks in advance for all input
MYes, there would be a problem as who would appoint the trustee. I haven't heard of a discretionary trust without one and I don't know if it would be possible unless maybe the trustee was fixed at settlement.
Points
– Different trusts sometimes use different terminology, maybe the appointor is called something else.
– Unit trusts don't have an appointor, are you sure it is discretionary
– If there is no appointor, what happens if you want to change trustee?
– What happens if the trustee dies?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
Thanks Terry, it is a DFT, when I set it up through trustdeed.com website, I missed out the appointer . so the name of appointer was not shown on the deed. The corp trustee was appointed in the deed. I am just concerned if I leave it as it is now , any issues may incurr later. If I want to fix it, how do I do that.
thanks heap
MNeed to see a lawyer, M, and if the lawyer is not tax savvy, need to get the lawyer to do this in conjunction with a tax accountant. A change in the terms of a trust may potentially give rise to a trust resettlement, which may, in taxation terms, cause the deemed disposal of all assets of the trust and give rise to capital gains tax, stamp duty, etc. I don't necessarily think an addition of an appointor would do that but having said that, I am not sure if trust law allows you to nominate an appointor subsequent to the formation of the trust. Best to seek advice on this one.
Eddie
[email protected]M,
Has your trust any assets yet? Maybe you can just add the appointor. If a resettlement occurs, it won't matter too much as there are no assets. But you maybe up for the initial stamp duty again. If it is unstamped, you could probably just add it in before taking it for stamping.
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 already stamped, and in process to get finance approve for 1st IP in the trust. I think It should be simple and try to fix it in a cheaper way ratther go to a lawyer, I was advised the fee is from $900 just to look at the trust deed . so my question is if the appointer's name is not shown in the deed ( Ijust set up less then 2 weeks ago) , is it stil compliant with the trust rules?
much appreciate
M
I think it may depend on the wording of your deed. If their is no appointor, is the trustee validly appointed as trustee? maybe not.
You are playing it dangerous by not getting it fixed properly – what happens if you find out it is not set up properly after you have the property for a year or so? It could cost a lot more than $900 to fix – especially if there is a resettlement.
At the very least I would ring the lawyers for the trustdeed website and ask them – even if they charge you it should be worth it.
Or, maybe just set up a new deed and play it safe. that would be cheaper than the $900 lawyer fee.
Keep the old one for future – you may be able to use it down the track after you have had time to research.
There is also a possibility the lender may not accept the deed.
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
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