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Passing on your assets to the next generation

The self discipline that you have displayed over the last 15 years and your self education about property strategies has seen you grow a property portfolio of ten properties over that time through the establishment of three separate companies acting as trustees for three different family trusts.

You now have a property portfolio worth close to $2M.

You have always known that you are the custodian of these assets for future generations and in your case that is your 25 year old son and his three infant children.Will

A solicitor specialising in estate planning has advised you that you do not actually own the company/trust structures however you control these entities though as you and your wife are the sole directors and shareholders of each of the companies and the principal beneficiaries of each of the three trusts.

You have been advised that the way to pass these assets down to your family is to leave control of the directorships and ownership of the shareholding in your Will to your son on the assumption that he will eventually do the same himself with your grandchildren.

However you have niggling doubts about your son’s maturity at this stage in his life to manage these assets and for a while you even consider “skipping a generation” by leaving control of the assets to the grandchildren.

You could do this by establishing a testamentary trust under your will for their benefit so that the assets bypass your son.

You know though that doing this will hurt your boy and you discuss with your specialist solicitor other options. 

smart-questions-property-investors-must-ask-their-solicitor

He suggests that you test the boy’s mettle and his ability to do the job by passing over control to him in stages.

It is suggested to you that you initially make him a co-director of the companies with you and your wife and if over the next few years he displays the necessary maturity, ability and stability then you and your wife can resign as co-directors leaving him as the sole director.

He would then have the day to day control of the assets.

You and your wife will continue on as shareholders in the company and Appointors in each of the Trusts (still keeping a watchful eye over him) and you could provide in your Wills that the shares are left to him when you pass on.

The final stage in the staggered passing of control of the assets over to your boy lies in the role of the Appointor in each of the Trusts.

The Appointor in each of the trusts is the most powerful person in the trust relationship as they have the ability to remove or replace the trustee. legal2

If during the time that your son is co-director you form the view that he is not up to the task then you and your wife can simply remove him from the board of directors and consider the option of skipping a generation by leaving the assets to your grandchildren.

If though you are comfortable after a few years and resign as co-directors leaving him as sole director, but sometime before you pass on, you then lose confidence in him the fact that you and your wife are Appointors of the trust allows you to remove him as the director in charge of the Trustee Companies by simply appointing a new Trustee of the Trusts.

If however you are happy with his performance you can finalise the transfer of control and ownership of these structures to your son by leaving him in your Wills, the shares in the companies and naming him as Appointor under each of the Trusts.

Passing these assets in stages has seen you discharge your obligation as the custodian of these assets for future generations of your family.

Well done.



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About

Rob is a partner in the Gold Coast based law firm MBA Lawyers. He is a highly regarded educator of property investors and estate agents and the author of the "Made Simple" series of books and CD's.
Visit www.ClausesMadeSimple.com


'Passing on your assets to the next generation' have 8 comments

  1. Avatar for Property Update

    April 22, 2015 @ 8:27 am Dipen

    What about the grand children and great grand children? How do you make sure that the son has passed in the assets to future generation and controlled them, in the same manner as you did ? How do you make sure that once the son has got full control he does not sell those assets and spend on lavishly? Is there a way that the future generation can not sell all the assets but just get the income from them? and to get the income they in turn must grow the assets?

    Reply

    • Avatar for Property Update

      April 22, 2015 @ 4:40 pm Michael Yardney

      Dipen

      That’s a great question- while you can leave instructions to trustees of your trust as to how you want your assets looked after – I guess the best thing is to educate your children in financial fluency

      Reply

  2. Avatar for Property Update

    April 24, 2015 @ 5:54 pm em

    Good advice.
    I suspect it’s probably too expensive to transfer ownership into trusts before I die.
    So, given the 7 property assets are in sole name and my boy is unlikely to be able to manage these himself, what are the implications of establishing a trust for him in my Will? I’m thinking a structure that will manage the properties and distribute during his lifetime some of the income and perhaps part of the capital with the residual paying his Estate costs then being donated elsewhere.
    Is there a type of trust that might ensure he is not preyed upon yet still provide some flexibility for ongoing needs and development. Is it necessary to be very specific in my instructions about each different situation or does a specific trust imply a specific intention?
    He has already been targeted in some ways by people who thought they would benefit, with increased psychological distress for him… he’s not stupid but when unwell can be overly generous and dispose of belongings/assets without consultation or realistic assessment.
    I have spoken with various legal people but am not confident that they understand the flexibility needed… liquidating and dispensing capital seems based on rigid proportions. Despite that, all advice is welcomed, regardless of palatability.
    Cheers.

    Reply

  3. Avatar for Property Update

    November 14, 2015 @ 8:47 pm IRENE

    Good advice Michael.
    I suspect it’s probably too expensive to transfer ownership into trusts before I die.
    Please recommend me a trusted person who I can contact to do a specific trust in NSW, Sydney.

    Is it necessary to be very specific in my instructions about each different situation or does a specific trust imply a specific intention?

    Can I used an accountant or a legal people or a Financial planner to do this for me?
    Please advise.
    Thank you.
    Regards,
    Irene

    Reply

    • Avatar for Property Update

      November 14, 2015 @ 10:06 pm Michael Yardney

      Transferring assets to a trust is very expensive – it involves Capital Gains Tax and Stamp Duty.

      A solicitor or your accountant can help – I don’t recommend specific consultants in an open forum

      Reply

  4. Avatar for Property Update

    March 6, 2017 @ 7:27 am SA

    Hi Rob and Michael

    Great article as always.

    It seems that some states have a “catch-all” ruling where you can be forced to pay stamp duty on the full asset value upon the transfer of “control” of this asset by changing trustee director. So in the scenario described in your article, full stamp duty will be payable by the child(ren) who inherit control of the trustee by becoming director of the corporate trustee.

    Is this legislation something that you have ever seen used in reality? In Victoria – the legislation link is:

    http://www.sro.vic.gov.au/sites/default/files/DA-030.pdf

    Best Regards

    Reply

  5. Avatar for Property Update

    March 15, 2017 @ 1:45 am Irene

    Dear Mr Yardley, I have a investment property which i have made a will to pass on to my son.
    When he inherits this property , does he need to pay any tax on it.
    If he decides to sell it , does he have to pay capital gain tax.

    Reply

    • Avatar for Property Update

      March 15, 2017 @ 8:23 am Michael Yardney

      Irene
      Currently your son would not pay any taxes if you left him your property in your will. When he eventually sells it, he will have to pay CGT, with the base being the value of the property on inheritance

      Reply


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