Legal Tip 48: Don’t Treat Trust Assets as if they are your own assets

Don’t Treat Trust Assets as if they are your own assets


I have seen a number of people who set up a trust and treat the assets held as it those assets belonged to themselves. Trust assets belong to the beneficiaries of the trust as a whole - probably hundreds of people in most open class discretionary trusts.

Trustees have various duties to the beneficiaries as a whole and where these duties are breached a beneficiary can sue the trustee personally.


There is also a duty for a trustee to keep trust assets separate from personal assets. Trust money cannot be deposited in the trustee’s personal bank account for example. A lot of people are guilty of this. Not only is this a breach of trust it also greatly weakens the asset protection of discretionary trusts. Firstly it could be argued that the trust is a sham and/or it doesn’t really exist. Secondly trust assets won’t be protected if the owner of the bank account becomes bankrupt.


Therefore if you are operating a trust keep the assets of the trust completely separate from your personal assets and don’t treat the assets as your own assets.


Note that this doesn’t necessarily mean the income of the trust cannot be accessed until the end of the financial year. If the trust deed allows it the trustee may make distributions throughout the year and to tally these up at tax time.

 

Hi Terry,
Is it true that lenders are now asking for every beneficiary named in a trust to be a guarantor? How does this work in an open class DT?

 

Nope - just one or 2 lenders will want guarantees from every named adult beneficiaries.

 

And a deed can be amended to add or remove beneficiaries after the borrowing.

 

But this may technically need a mortgagee's permission.

 

If you are a beneficiary of a trust that owns a house and you live in that house rent free. Is the trust liable to pay FBT?

 

No - not unless it is related to employment

Tax Tip 64: Tax Consequences of a Beneficiary Living in a Trust property rent free Tax Tip 64: Tax Consequences of a Beneficiary Living in a Trust property rent free