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Death and income tax – Some discrete issues: Part 1


This is part 1 of a two-part series dealing with some standalone issues about tax and deceased estates. This article discusses some of the factors that a legal personal representative should consider when deciding whether to hold or sell shares that the deceased owned. Relevant factors might include, for example, the tax residency of the estate and the beneficiaries. Part 1 also considers some of the advantages that testamentary discretionary trusts offer over those created inter vivos. For example, trustees of testamentary trusts are generally assessed at lower tax rates than trustees of inter vivos trusts and importantly have access to the CGT discount. Further, the higher tax rates that apply to a minor’s unearned income do not apply to income from a testamentary trust, although, as noted, new rules are proposed which restrict this benefit to income from assets that the deceased
person who created the trust owned.

Author profiles

Ian Raspin
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Lyn Freshwater
Lyn is a member of the Tax Counsel Network in the Australian Taxation Office in Brisbane. Her work in recent years has focused on trust-related issues including litigation (such as EISS, Lewski, Sandini) and various public advice and guidance products. She led the development of, and authored, draft Practical Compliance Guideline PCG 2017/D12 (liability of a legal personal representative of a deceased person). - Current at 12 July 2018
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Mark Morris FTI
Mark is a Senior Tax Counsel with BNR Partners. - Current at 03 December 2020
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