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Testamentary trusts post-death: Bespoke planning opportunities


It is clear that there is a growing need for estate planning to utilise appropriate structuring. Wills using testamentary trusts should be the starting point for any comprehensive estate planning exercise. The difficulty in many such exercises is that serious attempts to devise and implement a plan are often not made until some triggering event, such as financial or matrimonial misfortune, life-threatening illness or death, stimulates action.

This article considers options available for implementing trust structures after death when appropriate planning was not done during a person’s lifetime, and the post-death strategies which can be used to fix estate planning problems. In such a case, it is possible to establish a trust following a person’s death, including an estate proceeds trust or a superannuation proceeds trust. The article discusses the benefits and limitations of these strategies in turn, and also includes a summary of child maintenance trusts.

Author profile

Matthew Burgess CTA
Photo of author, Matthew BURGESS Matthew co-founded specialist firm View Legal in 2014, having been a lawyer and partner of one of Australia’s leading independent law firms for over 17 years. Matthew’s passion is helping clients successfully achieve their goals. Matthew specialises in tax, and estate and succession planning, providing strategic advice to business owners and high net worth individuals. He has been recognised in the Best Lawyers list since 2014 in relation to trusts and estates and either personally or as part of View Legal in Doyles since 2015 in relation to taxation, and since 2017 in relation to wills, estates and succession planning. In part leveraging off the skills he has developed working in the SME market space, Matthew has been the catalyst for a number of innovative legal solutions for advisers and their clients, including establishing Australia’s first virtual law firm. - Current at 13 August 2018
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