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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:

Amanda Morton is an Associate with Harwood Andrews.
Current at June 2009 Current at 16 June 2009 Click here to expand/collapse more articles by Amanda MORTON.
Rob is a Director and Shareholder of Harwood Andrews Lawyers and is an accredited specialist with the Law Institute of Victoria in Income Tax Law and Business Law. Rob has been recognised as one of Australia's leading taxation lawyers by ALB's Legal Who's Who Australia 2003. Rob practises principally in the areas of taxation and revenue law, superannuation, business and investment structuring, advice on various types of trusts, asset protection and succession planning and business and commercial advice. Rob has presented on numerous occasions at State and National seminars and conferences on taxation and trust law issues for both the Taxation Institute of Australia and other industry groups and bodies.
Current at December 2008 Current at 01 December 2008 Click here to expand/collapse more articles by Rob JEREMIAH.


This was presented at Vic 1st Annual Tax Forum .

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