Trusts

TRUSTS

Our Gold Coast business lawyers are experts in the innovative use of trusts to maximise the protection of our clients and their assets from potential litigation and unnecessary taxation burdens. At the same time we are sure to retain the flexibility to deal with assets in a way that maximises business agility and facilitates the carrying out of the personal endeavours and structuring needs of our clients.

PROMOTING BUSINESS GROWTH

Ramsden Lawyers has a deep understanding of the structural requirements of businesses to ensure the highest level of benefit to owners. While historically intended as a method of handling and protecting real property, trusts are now highly valued structural options within a business (as well as for personal reasons). Our business lawyers primarily assist business clients to create avenues for tax minimisation and asset protection based on the structure of their business.

Trusts can be incredibly valuable when entering into a partnership in order to limit the liability of the parties involved. Our lawyers are adept at providing concise yet holistic advice on the operation of trusts and the appropriate modification of trust deeds regardless of the position of the client in relation to the trust.

For example, it may be the case that a prospective trustee has significant assets and does not want to risk entering into a trust deed that could pose personal implications for their wealth. In this case we can carry out the necessary steps to create a holding company to control the trust rather than an individual, meaning that any potential liability attached to operating the trust stops with the holding entity rather than threatening all the assets the prospective trustee chooses to exclude from involvement.

CUTTING THROUGH COMPLEXITY

While trusts are an ideal structure for a business seeking to minimise the tax implications of its operations, trusts are complex legal entities that generally require specialised advice to operate effectively and ensure that settlors, trustees and beneficiaries alike disperse of assets correctly and meet their obligations under the trust deed. Our Gold Coast team is well placed to offer all the benefits of a trust while providing easy to understand and concise advice on how the parties to the trust should be operating based on state-specific legislation and the attaching fiduciary obligations.

Trusts are also valued because of the ability of an unlimited number of investors to make contributions to the trust, especially in the case of investment funds.

ACCESS TO A FULL SUITE OF TRUST VARIATIONS AND INNOVATIONS

In addition to the traditional trust structure, where the trustee disperses the trust property to beneficiaries in accordance with specific instructions from the trust deed, our business lawyers also frequently advise clients on the following more complex structures: 1. Discretionary trusts 2. Unit trusts 3. Hybrid trusts.

DISCRETIONARY TRUSTS

Discretionary trusts provide trustees with the novel ability to retain discretion on how the property and income of a trust is dispersed to the beneficiaries. In the case of a discretionary trust, the trust deed will still prove essential to regulating how a trustee will behave and our lawyers can effectively draft the trust deed to ensure that a trustee behaves as intended by the settlor and beneficiaries.

Discretionary trusts become valuable in the context of flexible distributions to ensure income stays below a particular tax threshold, to protect excluded assets from shareholders, to control assets on an inter-generational basis and promote large-scale investment opportunities that would otherwise not be possible.

At the same time, our Gold Coast lawyers also offer our business clients the option to establish unit trusts. Unit trusts operate much like companies – units of the trust are dispersed to beneficiaries the same way shareholders receive shares in a company. Unit trusts are often useful for the co-ownership of assets, particularly if it is the case that the parties to a trust deed have different degrees of involvement or ownership over an asset.

UNIT TRUSTS

Beyond discretionary trusts and unit trusts there are unique structures called hybrid trusts that combine elements of both discretionary and unit trusts in the same trust vehicle. Hybrid trusts are an increasingly popular trend that involves having both unit holding and discretionary beneficiaries. Hybrid trusts can be used for asset protection, tax effective distributions, streaming different types of income to different types of beneficiaries.

HYBRID TRUSTS

Hybrid trusts have many variations though most commonly they take one of the following forms:

  1. Hybrid unit trust: a unit trust with a discretion to appoint net income to a wide class of potential beneficiaries; and
  2. Hybrid discretionary trust: a discretionary trust that has the ability to issue units.

Hybrid trusts are by nature incredibly complex and require expert help from lawyers to ensure they are effective and have the consequences intended by the parties that form them.

EXPERTLY MODIFYING EXISTING TRUST DEEDS

Trust deeds are notoriously difficult to modify and should always be handled by your legal representation. Once it has been executed, a modification of a trust deed must take the form of an amendment agreement. The matter is made more complicated if a beneficiary has already received a benefit from the trust as the beneficiaries must agree to any modifications.

If it is the case that incorrect information has been listed on an executed trust deed, you should consult legal representation as soon as possible. Even small alterations such as correcting an address require expert care to ensure the validity of any proposed amendment.

Traditionally errors would be corrected through a deed of rectification, though recently alternatives have begun emerging such as using an agreement between the parties or using the broader context of the parties negotiation to construe the intended meaning.

OUR AREAS OF EXPERTISE INCLUDE:

Family trusts, Discretionary trusts, Unit trusts, Hybrid trusts, Trust deed drafting, Trust deed amendments, Party advisory services, Correcting trust deed errors

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