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Estate planning paper


In the 2011–12 Federal Budget, the government announced that it would amend the CGT provisions relating to deceased estates to ensure that they function properly. This includes legislating the current ATO practice of allowing a testamentary trust to distribute an asset of a deceased person without triggering a CGT liability.These proposed changes, together with the removal of the LITO in relation to the unearned income of minors, has brought into focus the continued use of testamentary trusts and their income tax and asset protection benefits.

This paper examines:

  • the fundamentals of wills, probate and testamentary trusts
  • the taxation of testamentary trusts (including whether income must be distributed each year)
  • excepted trust income and distributions to minors
  • adding to the corpus of a testamentary trust 
  • the asset protection benefits of testamentary trusts including:
    • beneficiaries, appointors, powers and limitations of testamentary discretionary trusts
    • the use of capital protected trusts and their taxation and duty consequences
    • how to grant a lifetime occupation right without creating a life interest.

Author profiles:

Robert Jeremiah CTA
Rob is a principal of Sladen Legal. He is a Chartered Tax Adviser accredited by the Law Institute of Victoria as a specialist in both Tax Law and Business Law and is on a number of technical committees related to taxation and superannuation including the Tax Law Specialisation Advisory Committee of the Law Institute of Victoria and Superannuation Industry Relationship Network of the ATO and is a member of the board and technical committee of SISFA. Rob is acknowledged as a leader in his field and is regularly asked to share his specialist knowledge on areas such as trusts, superannuation and tax. Rob has been a principal of Sladen Legal and its predecessor firm since 1981. Current at 16 November 2015 Click here to expand/collapse more articles by Rob JEREMIAH.
Amanda Morton
Amanda is a special counsel in the business law area, with a particular focus on wills and estates. Amanda joined Sladen Legal (formerly Harwood Andrews Lawyers) in 2000, and has published numerous articles on trusts, tax and the importance of estate planning, business succession and asset protection. She has practised law for more than 20 years in the Melbourne CBD and overseas, and offers her clients profound knowledge and extensive experience in a range of legal matters. The first 10 years of Amanda's legal career were spent working as a commercial litigator, appearing in the Supreme and Federal Courts, and instructing in cases before the High Court and on appeal to the Privy Council in London. Following this, Amanda has been practising in commercial law and estate planning, including appearances before the Guardianship Tribunal in disputes about control of family wealth in trusts and companies. Amanda's principal areas of practice are: business succession planning; business structuring; testamentary trusts; asset protection; superannuation; complex structuring; family property disputes; trust structuring advice and disputes; commercial, corporations law and partnerships advice and agreements; and taxation advice. Current at 01 May 2016 Click here to expand/collapse more articles by Amanda MORTON.

This was presented at Vic 1st Annual Tax Forum.

Get a 20% discount when you buy all the items from this event.

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Transfer pricing - The new landscape

Author(s):  Cameron Smith

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Part IVA - The new framework

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