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Lost trust deed

Discussion in 'Legal Issues' started by supercat, 18th Sep, 2016.

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  1. supercat

    supercat Member

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    I would like to get some advice on my situation. I established a family trust back in late 90s and the original OSR stamped deed is lost. I checked with my accountant, solicitor, my folders at home but cannot find it.

    The banks were ok with the certified copy without the stamp in the past, but recently they asked for the stamped copy.

    I currently have the following documents:
    - A copy of the signed trust deed (without stamp) certified by my accountant.
    - A copy of the application form and the cheque that were sent to OSR.
    - A receipt from the OSR (it doesn't have the trust's name but contains some numbers which I think may be the receipt number).

    I was still able to apply a mortgage for my family trust recently with the above documents. My solicitor suggests to get OSR to stamp the copy of the trust deed but my accountant worries I may need to pay lots of stamp duty if I do this.

    Should I try to get OSR to stamp the copy of the deed? How long does it normally take to get OSR to stamp the copy? Any advice and comments are welcome.

    Thanks in advance.
     
  2. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    What state was it established it.

    I can't see what stamping would create a resettlement - but this is legal advice so speak to your lawyer about the stamp duty. CGT is tax advice so you tax agent could advise - it is unlikely it would be a resettlement for tax purposes.

    Other than that an application may need to be made to the Supreme Court - and that could be very costly.

    BTW how did you lose it?
     
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  3. supercat

    supercat Member

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    Thanks Terry for the reply. The family trust was established in NSW.

    I always thought that my accountant kept the original copy but they said they don't have it.

    How long will it take to process the application if it needs to be made to the Supreme Court and approximately how much will it cost?

    Will it be a big issue if I do nothing?
     
  4. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    It will take a while. You will need to gather evidence of your attempts to locate the original - cost about $10k I would imagine.

    If you don't need the original it won't be an issue. A certified copy should suffice. Not sure about QLD land titles - if you buy up there.

    But have there been any amendments?
     
  5. supercat

    supercat Member

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    The properties are all in NSW.

    There was only one amendment back 3-4 years ago to replace one of the beneficiaries (my brother) with my daughter. Will this be an issue?
     
  6. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Do you have the original deed of amendment? Prob wont be an issue on this topic but.

    Could be a stamp duty resettlement 8ssue. Hope u got legal advice at the time.
     
  7. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Btw i recall seeing an article written on lost trust deed issues by a lawyer matthew burgess. You might be able to find it via google
     
  8. supercat

    supercat Member

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    Yes, I've the original deed of amendment and it was prepared by a solicitor.

    Thanks. I will try to find the article.
     
  9. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    But did they give you stamp duty advice?

    Applying to the OSR now could open old wounds...
     
  10. supercat

    supercat Member

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    The deed of amendment was reviewed by both my accountant and the solicitor, so I believe they should have advised me in case it will cause stamp duty issue? I may just double check with them before I apply to OSR just in case.

    I always thought if change to the beneficiaries of a trust falls within the scope of the trust variation clause then it won't be a resettlement?
     
  11. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    This is for cgt - Clarke case I think.

    Stamp duty is much more tricky and varies from state to state.
     
  12. sanj

    sanj Well-Known Member

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    Why dont u make an appointment to see @Terry_w ?
     
  13. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

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    Supercat could probably save his money by just using the certified copy. But if that is ever lost he will be in a pickle.
     
  14. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    OSR for many years did not stamp the deeds but issued those stupid paper receipts. See if they will accept the receipt to stamp the schedule to the deed. I have had it done in NSW.

    Stamping isnt dutiable. A transfer is. OSR may charge a counterparty deed fee of $50 at best. Although back in 1990's this fee didnt exist so they may waive it. Take all original paperwork to OSR Parramatta as this is their sole duty office. Call them in advance perhaps and speak to a duty specialist - They see this all the time. They should be able to sort it. Worst case it may be $200 or $500 if they are being difficult...In worst cases they may double the duty but I would doubt it.
     
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  15. melbourne171

    melbourne171 Well-Known Member

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    My current Trust Deed does not have a stamp on it but OSR Victoria issues A4 page with the stamp duty reference no. This A4 paper is inserted into Trust Deed by my accountant.
     
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  16. Paul@PFI

    Paul@PFI Tax Accounting + SMSF Business Member

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    Then scanned and copies kept ?