Legal Tip 105: The concept of ‘Present Entitlement’

The concept of ‘Present Entitlement’

This is a concept related to trust law. A beneficiary of a trust, including a deceased estate, is not entitled to the income until a certain point in time. This is when they are 'presently entitled'.

Example 1
My X dies and leaves his house to his son M. At firs the estate is administered by the executor of the estate. At this point the son M is not ‘presently entitled’ to the house. He cannot demand transfer of title. He would not be presently entitled until the estate has been fully administered. (FCT v Whiting (1943) 68 CLR 199).


Example 2
John is the trustee of a discretionary trust. As trustee he makes a resolution to distribute $30,000 to Frank. Frank is presently entitled to this income immediately the resolution is made. This is the case even if the trustee doesn't distribute the income for another year as Frank has the legal right to demand payment.


Example 3
Mr X dies and leaves his house to son M to be held in trust unit M is 25. At 24 years of age M is not presently entitled to the asset, but once he has his birthday he can demand title be transferred from the trustee’s name to his name.


This concept of ‘present entitlement’ has important implications in the areas of asset protection and taxation. If no one is presently entitled to the income of a trust it would be the trustee who would be taxed, and taxed at the top tax rate.