If you are setting up a discretionary trust, reviewing an existing family trust, appointing a corporate trustee or structuring assets for protection and succession, our discretionary trust lawyers can help you get the structure right.
We provide practical on discretionary trusts, family trust deeds, corporate trustees, trust amendments, appointor arrangements, family trust elections and trust-related business structuring.
A discretionary trust is a trust where the trustee has discretion to decide which beneficiaries receive income or capital from the trust, and in what proportions, subject to the terms of the trust deed.
Unlike a company, a discretionary trust is not a separate legal entity. The trustee holds and manages the trust assets for the benefit of the beneficiaries. The trustee may be an individual or, more commonly for business and asset protection purposes, a corporate trustee.
Discretionary trusts are commonly used by families, business owners and investors because they can provide flexibility. For example, the trustee may be able to distribute income to different beneficiaries from year to year, depending on the trust deed, tax advice and the circumstances of the beneficiaries.
However, a discretionary trust must be properly established and managed. The trust deed, trustee, appointor, beneficiaries and distribution powers all need to be carefully considered.
A discretionary trust may be suitable if you want flexibility, asset protection and a structure that can support family wealth, business ownership or investment assets over time.
It may be appropriate where you want to:
However, a discretionary trust is not always the best structure. Depending on your circumstances, a company, unit trust, fixed trust or partnership may be more appropriate. There may also be tax, duty, land tax, asset protection and succession issues to consider.
Our discretionary trust lawyers can help you decide whether a trust is suitable and how it should interact with your broader business or personal structure.
Control of a discretionary trust is one of the most important issues to get right.
In practical terms, control usually sits with the trustee and the appointor.
While trustee powers and duties are also affected by the Trustee Act 1925 (NSW), the trust deed remains central. It sets out how the trust is controlled, who may benefit, how distributions may be made and what powers the trustee has.
Accordingly, the trustee manages the trust, makes decisions and determines distributions. The appointor (sometimes called the principal depending on the deed) may have the power to appoint and remove the trustee.
This means the appointor role can be extremely powerful. If the wrong person holds that role, or if the deed does not properly deal with succession of control, disputes can arise later, especially after death, separation, incapacity or a family breakdown.
When setting up or reviewing a discretionary trust, we can advise on:
Getting control right is critical to making sure the trust operates as intended.
In many cases, a corporate trustee is preferable to individual trustees.
A corporate trustee can provide clearer control, simpler succession and better separation between personal assets and trust assets. It can also make administration easier where trust assets are being acquired, sold, financed or transferred.
For example, if individuals act as trustees and one of them dies, resigns or becomes bankrupt, the trust may need to update asset titles and legal documents. With a corporate trustee, the company remains the trustee even if its directors or shareholders change.
A corporate trustee may also help reduce confusion between personal assets and trust assets. This can be important where the trust is used for business, investment or asset protection purposes.
However, a corporate trustee adds cost and administration. Whether it is appropriate depends on your circumstances, risk profile and long-term plans.
A family trust deed should not be ignored after it is signed.
You should consider reviewing your trust deed if:
Amending a trust deed requires care. Not every deed can be amended in the same way, and some amendments may create tax, duty or resettlement risks if not handled properly.
We can review your trust deed, identify key issues and advise on whether amendments are required.
Discretionary trusts can be useful for asset protection, business structuring, family wealth planning and succession. However, they require careful documentation and clear control arrangements. We assist with the establishment, review, variation, administration and dispute resolution of discretionary trusts.
We can establish discretionary trusts and prepare the documents required to set them up properly. This may include the trust deed, trustee consents, corporate trustee documents and establishment minutes.
We review discretionary trust deeds to identify key risks and practical issues. This can include control provisions, amendment powers, vesting dates and whether the deed still reflects your objectives.
We prepare and advise on deed variations. This may include changes to trustee powers, beneficiary classes, appointor provisions, vesting dates, succession arrangements or administrative powers.
We can assist with appointing or removing trustees and appointors under the trust deed. We also advise on trustee and appointor succession and the documents required to ensure changes are valid.
We can advise on winding up a discretionary trust, including reviewing the trust deed, dealing with trust assets, preparing trustee resolutions and coordinating with your accountant on tax issues.
We act in trust disputes involving trustees, appointors, beneficiaries and family members. This may include disputes about control, distributions, validity of appointments or removal of trustees.
A discretionary trust can be a powerful structure, but small mistakes can have long-term consequences. The trust deed, trustee, appointor, beneficiaries and control arrangements can affect asset protection, tax planning, succession, disputes and how the trust operates in practice.
Getting legal advice early helps ensure the trust is properly established, properly controlled and aligned with your broader commercial or family objectives.
A discretionary trust can assist with asset protection, but only if it is properly structured and managed. We help you consider who should own assets, who should control the trust and how the trust fits within your broader risk profile.
A discretionary trusts can provide flexibility in how income and capital are distributed. We help ensure the trust deed gives the trustee appropriate powers and that the beneficiary structure suits your family, business or investment objectives.
Disputes arise because control has not been properly considered. We advise on trustee, appointor and succession arrangements so it’s clear who controls the trust now and in the future.
A discretionary trust should support long-term planning, not create uncertainty. We help review vesting dates, amendment powers, succession arrangements and key deed provisions.
We make the discretionary trust setup process simple and transparent. Here’s what to expect:
Call us on (02) 8287 3118 or email us at enquiries@axelegal.com.au to get started.
We will ask about your family, business, assets, risk profile, tax advisers, succession goals and whether you are setting up a new trust or reviewing an existing trust.
During our initial consultation, we will outline our recommendations, explain the likely documents required and provide an estimate of costs.
We consider whether a discretionary trust is appropriate for your circumstances.
This may include advice about who should act as trustee, whether a corporate trustee should be used, who should hold the appointor role, who should be included as beneficiaries and whether the trust should own business assets, investment assets or shares in a company.
We can also work with your accountant or tax adviser to make sure the structure is legally sound and commercially practical.
Once the structure is settled, we help prepare or review the documents required to establish or update the trust properly.
This may include the trust deed, corporate trustee documents, trustee consents, appointor provisions, establishment minutes, family trust election considerations, deed amendments, trustee changes, appointor changes and related resolutions or agreements.
We ensure the documents reflect the intended structure and are ready to be implemented.
After your trust is established, we can continue to assist as your circumstances change.
We advise on trust deed reviews, deed amendments, trustee changes, appointor succession, family trust elections, asset protection, business restructures, distributions, trust disputes and coordination with companies or other entities in your structure.
Our goal is to help your trust operate with clarity, flexibility and proper legal foundations.
We’re here to structure
your trust properly
A discretionary trust should be more than a standard deed. It should reflect your family, business, assets, risk profile and succession objectives. Our discretionary trust lawyers help you establish, review and amend trust structures with clarity, confidence and commercial purpose.
Our discretionary trust lawyers provide practical advice, tailored documents and commercially focused support for business owners, families and advisers.
We consider the trustee, appointor, beneficiaries, asset protection goals, tax coordination and succession issues before documents are prepared.
Trust law can feel technical, but the practical issues are often straightforward. We tell you who controls the trust, how distributions work, what the deed allows and where the risks are.
We prepare and review trust documents that reflect your actual arrangements. Proper documents reduce uncertainty and make future changes easier to manage.
A discretionary trust often lasts for decades, so the structure needs to work beyond the immediate setup. We consider future asset acquisitions, business changes, family succession and control issues.
