Join Australia's most dynamic and respected property investment community

Legal Tip 58: Death of a trustee

Discussion in 'Legal Issues' started by Terry_w, 15th Aug, 2015.

  1. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

    Joined:
    18th Jun, 2015
    Posts:
    9,033
    Location:
    Sydney
    Death of a trustee


    What happens if Mr X is the trustee of a discretionary trust and X dies?


    The assets of the trust which are in the name of X do not pass via his will, but remain in the trust. The trust doesn’t die but will keep going on under a new trustee. The deed governing the trust will hopefully have a mechanism for someone to appoint a new trustee. This is usually the appointor, but often the sole trustee is the sole appointor and if they are the same person and that person dies then there are can complications.


    if this happens there should be a mechanism for a new appointor to come into play. This should ideally be nominated in the deed. The beneficiaries of the trust will hopefully dig a bit and find the deed and work out who the next appointor is.


    If there is no new appointor and the deed doesn’t appoint a new trustee then one or more of the beneficiaries of the trust may have to apply to the Supreme Court to appoint a trustee. The court has these powers under the trustee acts.

    This is one reason why it is better to have companies as trustees. Succession is easier and title deeds do not need to be changed when someone dies.

    Are you a trustee? If so who will be the next trustee on your death and how will this be achieved?
     
  2. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,596
    Location:
    Adelaide, SA
    With corp trustee, if sole director is also sole shareholder, wouldn't that create the same issue upon his death?
     
  3. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

    Joined:
    18th Jun, 2015
    Posts:
    9,033
    Location:
    Sydney
    Shares are property that can be passed via the will or intestacy laws. But there are other issues which I will write about - in the future
     
  4. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

    Joined:
    18th Jun, 2015
    Posts:
    9,033
    Location:
    Sydney
  5. D.T.

    D.T. Adelaide Property Manager Business Member

    Joined:
    13th Jun, 2015
    Posts:
    5,596
    Location:
    Adelaide, SA
    So shares pass to someone via a will, shareholders nominate new director, trust continues?
     
  6. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

    Joined:
    18th Jun, 2015
    Posts:
    9,033
    Location:
    Sydney
    Yes, basically that is how it works. But don't forget some trusts, especially discretionary, have appointors who could remove the trustee and put a new one in place.