A family trust is a form of a Discretionary Trust and one of the most important investment vehicles that individuals can look at starting. They are very useful in particular for building wealth for the benefit of future generations, flexibility in daily operations, family investments, holding and protecting your family’s properties and other assets. These assets could include investment properties, share portfolios, personal use assets (holiday homes, boats, land, antiques etc.).
Many of our clients also prefer to keep properties used in their business under a trust structure while carrying on their operations from other business entities under a rental agreement to protect their assets from creditors and other third party legal action.
The purpose of a trust is to hold these assets and cash flow for the benefit of the members of the “family group”. Their operation is for the most part subject to the terms of the trust deed which is prepared when a trust is established. This makes the trust deed the single most important document for this structure. It dictates various things including:
- Who is the Trustee (who looks after the legal property of the trust for the benefit of the family members and decide on annual distributions – generally mum and/or dad)
- Who is the Appointor (Person in charge of selecting the trustee)
- Who will be the beneficiaries (those entitled to the trust’s income and/or those who have right to trust’s assets)
- Definition of trust income including how, to whom and what type of income will be distributed.
- What happens when a trust vests or ends.
Due to the fact that the trust deed of the trust defines who the potential recipients of trust income will be on formation (usually family members), trust is a structure very much favored by family businesses (I.e. a Family Trust) who can provide capital if expansion is required in the future, investments need to be purchased or excess cash of family members needs to be loaned to the trust. This is because, besides commercial loans, it is not possible to pursue external investor capital as a family trust.
If succession planning and keeping the business with in the family is the main goal, then this is the ideal business structure. Discretionary trusts allow the business to be passed down to the next generation of family members. In this case, the trust deed must allow for the change of Appointor or Trustee. As there is no change in beneficial ownership of the trust and given all family members are beneficiaries of the trust, the changeover in the control of business within the family is not subject to any CGT implications.
This trust structure offers various benefits such as:
- Being an ideal tool for succession planning and transferring within the family without immediate tax implications. For example, when you want to hand down the family business to your next generation while avoiding any CGT implications. This is true, as long as they are deemed to be beneficiaries as per the trust deed which also needs to be carefully drafted.
- Strong asset protection is provided from creditors (for instance, in the event a family member experiences bankruptcy or a related entity is going through insolvency). This requires that the trustee is a company and trust deed limits the trustee’s liability upon being sued to the share capital invested in the trustee company. Please note that exceptions do apply when it comes to family law.
- High degree of flexibility in distribution of income to various beneficiaries in the most tax effective way including family and friends ensuring all the family members tax free thresholds are fully utilized.
Distributions can also be varied every year to reflect changing income of family members.
- Access to various small business Capital Gains Tax (CGT) concessions on sale, restructure of and retirement from business. The individual also receives a 50% CGT discount when distribution is received from the trust.
- Overall flexibility in operation of trust as it is mainly governed by the trust deed.
One of the main drawbacks of a trust structure would be that losses cannot be distributed and there are substantial hurdles to recoup such losses. However, trust losses can be carried forward to future years and offset against future tax income.
Due to the trust offering such significant benefits and potential tax savings, the ATO have been looking more closely into them recently. Recent changes included reduction in distributions to minor members of the family (usually under 18 years old).
All in all, it can be quite complex and challenging to identify your business needs and selecting the appropriate business structure or combination of entities. Furthermore there are various commercial and taxation implications when it comes to family trusts.
Keeping your business circumstances in mind, and to ensure there is a seamless transfer of wealth between generations, it is recommended to get professional advice before making any such decision so you can customise your entity structure to your business needs.
