Legal Tip 174: The Trustee of Testamentary Discretionary Trusts

Legal Tip: The Trustee of Testamentary Discretionary Trusts


It is generally more appropriate to have a separate non-trading company act as trustee for any trust. With a testamentary trust set up under a will a company could be appointed as trustee, but the company would need to be in existence at the time the will is executed. This will result in potentially years of ASIC fees to be paid while waiting to die, so how I usually draft these wills is to list one or more beneficiaries as trustees and give the appointor the power to change the trustee.


After the death of the testator the beneficiaries can then set up a company and then have the appointor appoint that company as trustee before the executor transfers assets to the trustee.