Upgrade of Discretionary Trust to a Non-Foreign Person Discretionary Trust

About Product

A stamp duty surcharge and in some cases a land tax surcharge applies in various states where a foreign person acquires property in that State. There are exemptions where the foreign person does not control the trust nor receives capital or income distributions in excess of 50% of any distributions.

This trust limits trustees and beneficiaries receiving trust distributions to citizens and permanent residents.

► $129.00 (inc GST) - OR provided under your unlimited membership

► The master document has been signed off by LY Legal and is congruent with Australian law.

General Information

Each Australian State has its own provisions in relation to surplus stamp duty for trusts where the trust deed does not specifically detail that foreign beneficiaries and trustees are excluded from the trust.

Benefits

A simple upgrade for current discretionary trusts looking to acquire property
Must be put in place and will be reviewed by the relevant State authorities
No resettlement, capital gains tax or stamp duty issues for upgrading the trust deed
Operates for each State

Frequently Asked Legal Questions

How does the Leading Member Non-Foreign Person Discretionary Trust differ from an ordinary Discretionary Trust?

The Leading Member Discretionary Trust is based on the LYD Discretionary Trust, with the added value of limiting Trustees, Appointors and Beneficiaries to the lineage of the Leading Member. In addition, there is a limitation on non-citizens or permanent residents of Australia.

What happens to any existing Discretionary Trust Deed?

If the Trustee is seeking to acquire property, even if there are no foreign person a deed upgrade is required or stamp duty surcharge will apply.

How long does this document take to assemble?

Depending on the complexity of the data, this document should take approximately 5-10 secs to assemble. If you experience timing outside of this please contact Support via the Surge app, alternatively please read this article for troubleshooting tips https://info.lightyeardocs.com.au/supportcentre/troubleshooting-longer-assembly-times-timeouts .

Do you have a data capture form I can use?

Yes. It is available here: https://info.lightyeardocs.com.au/supportcentre/data-capture-form-trust-variation-upgrade-data-capture-form

Is this document a legal document?

All master documents have been signed off by LY Legal lawyers. Tony Anamourlis of LY Legal advises that “at no time, due to inbuilt legal protection and security measures can a user change or amend a document on the LYD platform that has been signed off by a practicing solicitor. To do so would result in the user drafting a document of a legal nature and engaging in the provision of legal services. In addition, it would be a breach of copyright. In our opinion when completing the form fields through the LYD platform, users and their employees are merely carrying out an administrative task which is not the provision of legal advice.”

However in some complex areas such as the insertion of a varied range of client instructions into a Will or other such documents the user must be mindful of the extent to which a document is being drafted by the user rather than merely the administrative task of completing a form where the relevant fields are inserted into the reviewed and signed legal document provided by LY Legal.

The above advice is born out of numerous cases dating back to Re Sanderson, Ex parte Law Institute of Victoria [1927] VLR 394, 397 where the Court held:

“if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with action usually taken by a solicitor – I think he then does act as a solicitor.”

Likewise in ACCC v Murray (2002) 121 FCR 428, 448 where Murray was building a franchise business that involved the legal writing and drafting of Wills from scratch based on the client’s personal circumstances. The Court held that this process was legal work.

Is the document easy to read?

All LYD products are written in plain English and assessed for readability. If at any time you come across any errors, please contact support@lyd.com.au.

Can I get a sample of this document?

Yes, please email support@lyd.com.au to request a sample document for you to review.

What lawyers sign off on the LYD documents?

All LYD documents are prepared and signed off by LY Legal.

Stamping and Lodgment of Trusts

The fees and stamping requirements for establishing a trust deed vary throughout Australia, and the duty payable also varies depending on the type of property that is held by the trust. Please contact our partners at Eventum Optimum (EO) on info@eventumoptimum.com.au for more information on when stamping is required (in what jurisdiction) and the fees/duties payable. EO are able to provide this service to you.

Are the LYD documents reviewed regularly?

All LYD documents form part of the LYD internal review process. We review all documents at least annually or when required to do so due to changes in legislation. Further details of this process and a review schedule is include on this website.