Family Trust - Wind up/Vesting

Family Trust - Vesting

Winding Up Family Trust

In certain circumstances it may be desirable for a Trustee of a discretionary trust to exercise its power to vest the discretionary trust prior to the vesting date set out in the Trust Deed. Such circumstances normally relate to the trust being of no further use (ie. the major trust asset has been sold or is contemplated being sold).

The Family Trust - Vesting document allows for an "inspecie distribution" (100% or partial) of a particular asset or assets to certain beneficiaries and/or to liquidate the trust assets and distribute the balance of the proceeds of the sale to certain beneficiaries after discharging the Trust's liabilities.

Before vesting your fund you should obtain legal and accounting advice regarding the consequences of the vesting. In particular there are tax implications and stamp duty/transfer duty implications that vary from state to state. The Trustee should also obtain advice on its obligations with the Trust creditors and the Trust beneficiaries.

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Trust Amendments
• How do I know if the Trust has been amended before?
• Where do I find the date of any Deed of Amendment or Deed of Variation?
Trustee's Details
• What is an ACN?
• What if I don’t have an ACN?
• Where do I find out who is the Trustee?
Controller's Details
• Who is the Controller?
• My trust deed refers to the “Guardian”?
Settlor's Name
• Where do I find name of the Settlor?
New Vesting Date
• What date should I use?
Inspecie Distribution
• Can the Trustee distribute?
• What is an “Inspecie Distribution”?
• What does “Liquidation of Assets” mean?
• What if I want to make a 100% Inspecie Distribution?
• What does Joint Tenants mean?
• What does Tenants in Common mean?
• Get Advice!
Liquidation of Assets
• What does “Liquidation of Assets” mean?
• Get Advice!
Jurisdiction
• Why is this important?

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Trust Amendments

• How do I know if the Trust has been amended before?

  Generally you will have another document that says eg: “Deed of Amendment to the Johnson Family Trust” or “Deed of Variation to the Johnson Family Trust”. You need to note all variations that have been made to the Trust Deed. If you are not sure, you may need to seek legal advice.

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• Where do I find the date of any Deed of Amendment or Deed of Variation?

  The date of the Deed of Amendment or Deed of Variation is generally on the front of the Trust. If not, it may be on the last page where the signing clauses are.

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Trustee's Details

• What is an ACN?

  Under the Corporations Act 2001, every company in Australia has been issued with a unique nine-digit number known as an Australian Company Number (ACN), which must be shown on a range of documents. The purpose of the ACN is to ensure adequate identification of companies when transacting business. New companies are issued with numbers by the Australian Securities & Investments Commission (ASIC) upon registration.
  
  A company’s ACN should appear on all of its “public documents” and “eligible negotiable instruments,” including but not limited to the following:
  • all documents required to be lodged with ASIC;
  • statements of account, including invoices;
  • receipts (which are not machine-produced);
  • orders for goods and services;
  • business letterheads;
  • official company notices;
  • cheques, promissory notes and bills of exchange; and
  • written advertisements making a specific offer which is capable of being accepted (such as by the completion of an order form).
  

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• What if I don’t have an ACN?

  If you do not have an ACN, then you can insert your Australian business number (ABN) into the ACN/ABN field.
  
  The Australian business number (ABN) is a unique 11 digit identifier that makes it easier for businesses and all levels of government to interact.
  
  It is not compulsory to have an ABN, but it is an essential component for businesses to operate within the goods and services (GST) system.
  

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• Where do I find out who is the Trustee?

  Check the Trust Deed. The Trustee will either be listed on the first page or in the schedule at the back of the Trust Deed.

  This hint is provided by Law Central Legal.

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Controller's Details

• Who is the Controller?

  This is the person or entity named in the Trust Deed whose permission the Trustee is required to obtain under the terms of the Trust Deed to appoint a day other than the day specified in the Trust Deed as the vesting day.
  
  Check the terms of the Trust Deed to see whose consent the Trustee is required to obtain. This person or entity is usually (but not always) referred to as the "Guardian".

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• My trust deed refers to the “Guardian”?

  That is fine. This person or entity is usually (but not always) referred to as the "Guardian". You just need to check your Trust Deed to see whose permission is required under the terms of the Trust Deed to appoint a day other than the day specified in the Trust Deed as the vesting day.
  
  Enter the details of the Guardian here.
  

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Settlor's Name

• Where do I find name of the Settlor?

  Check your Trust Deed. The Settlor will either be listed on the first page or in the schedule at the back of the Trust Deed.

  This hint is provided by Law Central Legal.

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New Vesting Date

• What date should I use?

  The new vesting date must be a date earlier than the vesting date set out in the Trust Deed. Ideally it should be a date not long after the day contemplated by the parties signing this Vesting Deed.

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Inspecie Distribution

• Can the Trustee distribute?

  Check the Trust Deed to see if it contains a discretion for the Trustee to payout capital and income.
  
  Check the Trust Deed to see if it allows the Trustee to distribute Trust property Inspecie.

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• What is an “Inspecie Distribution”?

  An "Inspecie Distribution" is a distribution of an asset in its present or actual form as opposed to selling the asset and distributing the cash proceeds.

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• What does “Liquidation of Assets” mean?

  "Liquidation of Assets" means to sell the assets and distribute the residue monies held by the Trust after discharging the Trust liabilities for each beneficiary.

  This hint is provided by Law Central Legal.

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• What if I want to make a 100% Inspecie Distribution?

  Then you only need to enter the information on this page (and not the next page dealing with liquidating the assets). Make sure you deal with all of the assets of the Trust on this page.

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• What does Joint Tenants mean?

  If you are a joint tenant it means:
  - you and the other owners jointly own the whole property;
  - there are no specified shares in the property;
  - the principal of survivorship applies. If one owner dies, the other owner or owners automatically acquire that person's interest in the property; and
  - no part of the property can be sold, given away or willed without the agreement of all the owners.
  

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• What does Tenants in Common mean?

  If you are a tenant in common, each co-owner has a distinct and defined share of the property, eg 50%, rather than owning the whole property together. The shares do not have to be equal eg can be 75%/25%.
  
  As a tenant in common you can deal with or transfer your share to someone else.
  This means that your share in the property forms part of your estate and you can leave it to someone else in your Will.
  

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• Get Advice!

  You should consult with your lawyer and accountant regarding the tax and stamp duty/transfer duty consequences of the distribution and your obligation to consider the beneficiaries when making this distribution.
  
  In relation to the tax consequences, capital gains tax events E5 or E7 is likely to apply.
  
  In relation to the stamp duty or transfer duty consequences, the relevant conveyancing rates may be applied unless an exemption under the relevant State legislation is applicable. See a lawyer on this matter prior to signing this deed.
  

  This hint is provided by Law Central Legal.

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Liquidation of Assets

• What does “Liquidation of Assets” mean?

  "Liquidation of Assets" means to sell the assets and distribute the residue monies held by the Trust after discharging the Trust liabilities for each beneficiary.

  This hint is provided by Law Central Legal.

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• Get Advice!

  You should consult with your lawyer and accountant regarding the tax and stamp duty/transfer duty consequences of the distribution and your obligation to consider the beneficiaries when making this distribution.
  
  In relation to the tax consequences, capital gains tax events E5 or E7 is likely to apply.
  
  In relation to the stamp duty or transfer duty consequences, the relevant conveyancing rates may be applied unless an exemption under the relevant State legislation is applicable. See a lawyer on this matter prior to signing this deed.
  

  This hint is provided by Law Central Legal.

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Jurisdiction

• Why is this important?

  Before vesting your fund you should obtain legal and accounting advice regarding the consequences of the vesting. In particular there are tax implications and stamp duty implications that vary from state to state. The Trustee should also obtain advice on its obligations with the Trust creditors and the Trust beneficiaries.

  This hint is provided by Law Central Legal.

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This document has been prepared by the law practice Law Central Legal

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