A Trust is a relationship where a Trustee (in the case of a business
this should also be a company) carries on business for the benefit of
other people (the Beneficiaries).
The company that acts as Trustee should not be involved in any other business
but solely acts as Trustee.
So for example, your Corporate Trustee may carry on a business
for the benefit of a particular family and distribute the yearly profit between them.
A Trust is not a separate legal entity. A Trust may be Discretionary.
(i.e. the trustee decides how profit will be distributed among beneficiaries)
or have fixed interests (i.e. it will benefit certain people in predetermined proportions).
Advantages of a Trust
• A trust provides asset protection and limits liability in relation
to the business provided a corporate trustee is also in place.
• Trusts separate the control of an asset from the owner of the asset
and so may be useful for protecting the income or assets of
a young person or a family unit.
• Trusts are very flexible for tax purposes.
• A discretionary trust provides flexibility in the distribution of income and
capital gains among beneficiaries depending on their individual circumstances.
• Beneficiaries of a trust are generally not liable for the trust debts,
unlike sole traders or partnerships.
• Beneficiaries of a trust pay tax on income they receive from a trust
at their own marginal rates.
• Trusts can be used to assist for Estate Planning purposes.
Disadvantages of a Trust
• A trust is a complex legal structure, which must be setup carefully.
• If the Trust Deed is not correctly setup the entire structure can be declared
nul and void. Don’t rely on Trust Deeds not written by a local Adelaide
lawyer who you can meet and talk too!
• Be careful which firm you trust to setup this type of entity, ask them
what lawyer they are using and why them? Is it a lawyer specialising in
tax matters or an opportunist flogging cheap deeds?
• Operation of the business is limited to the conditions outlined in the trust deed,
if this is incorrectly written the business may be found in breach of trust.
• As with companies, there are extensive regulations that trusts must comply with.
• Losses derived in a trust are not distributable and cannot be offset by
beneficiaries against other income they may have.
Let Bartley Partners help you explore your options.