Setting up a will / childs trust fund in Australia

[Kenny202]

Currently looking into setting up a will in Australia for my Thai born son (Australian citizen). Main reasons for doing it in Australia is so should I die unexpectedly the money for him will be held in trust until he is old enough and its out of reach of his natural Thai mother. We seperated a few years ago. Were never married but I had myself legitimized through the courts. We will have the will done in Australia, but translated and also registered here.

 

My main question is how do trust accounts work in Australia? Will the lawyer manage it / invest it or does the executor take care of it? The lawyer has quoted me a price for the will, and she is aware I will want to leave money in trust for my son, but she is asking me to deposit the fee before she fully answers my questions. One of them are there extra costs to set up a trust fund, who manages it and are there ongoing costs that would deplete his inheritance.

 

Does anyone have knowledge of how these trust funds work? Am i giving the layer power of attorney to do what they want or are there government regulations that protect you? To be clear Im not trying to set up a trust fund now. I only want to stipulate he receives a certain amount in the event of my death and this will be safely invested for him until he turns 18yo

 

Any first hand knowledge / advice appreciated

[samran]

You are going to have to do separate wills for your assets here in Thailand and down in Australia.

 

We hired a solicitors in Australia to do our wills, which basically leaves everything to the other spouse in case one of us drops off, and then everything to the kids if we both happen to drop off. Its best to get some good advice from the solicitor as well, questions you don't think of like 'when do the kids get access to your estate'? for instance - 18 or at some later age? Better to do it at a later age (say 30) just on the off chance they marry some idiot at an early age, it doesn't become 50% theirs too early in the piece. Cash is then held in trust (and you nominate the trustee) till that point, and they have discretion on how to allocate the monies to provide for things like education etc. No separate vehicle has been set up.

 

Assets in Thailand are covered desperately by a Thai will. You can almost do one yourself and lodge it at the local district office.

[AussieBob18]

Are you in Thailand and trying to do a Will for Australia?  Is the lawyer you mention in Thailand or Australia? Where do you and son live? 

 

Agree with Samran - in a Trust and not touched until they are at least 30.  We did ours the same way - one each for Thailand and one each for Australia.  But we did the Thai ones in Thailand (in English and Thai) and the Aussie ones in Australia.  Unless you have some seriously complicated personal and/or business assets then I would use the Public Trustee - lawyers charge far too much to setup.  Whoever is the Executor organises the Trust Fund. Another reason to use Public Trustee - far more honest and reliable - Trust Funds run by lawyers are open to all sorts of issues (including heavy management costs).

 

[Kenny202]

59 minutes ago, samran said:

You are going to have to do separate wills for your assets here in Thailand and down in Australia.

 

We hired a solicitors in Australia to do our wills, which basically leaves everything to the other spouse in case one of us drops off, and then everything to the kids if we both happen to drop off. Its best to get some good advice from the solicitor as well, questions you don't think of like 'when do the kids get access to your estate'? for instance - 18 or at some later age? Better to do it at a later age (say 30) just on the off chance they marry some idiot at an early age, it doesn't become 50% theirs too early in the piece. Cash is then held in trust (and you nominate the trustee) till that point, and they have discretion on how to allocate the monies to provide for things like education etc. No separate vehicle has been set up.

 

Assets in Thailand are covered desperately by a Thai will. You can almost do one yourself and lodge it at the local district office.

We have had so much differing advice from lawyers and amphur offices re lodging said will. Why I was hoping to cover the lot in one will drawn up in Australia covering monies in trust for my son and also assets in Thailand. I have friends who have foreign drawn wills translated and lodged at an amphur office here. U said yourself you can write yourself out a will so surely a proper document, no matter where it is drafted should do the job? Seems to be like everything here. No definitive rule just do what you think and hope for the best

[Kenny202]

4 minutes ago, AussieBob18 said:

Are you in Thailand and trying to do a Will for Australia?  Is the lawyer you mention in Thailand or Australia? Where do you and son live? 

 

Agree with Samran - in a Trust and not touched until they are at least 30.  We did ours the same way - one each for Thailand and one each for Australia.  But we did the Thai ones in Thailand (in English and Thai) and the Aussie ones in Australia.  Unless you have some seriously complicated personal and/or business assets then I would use the Public Trustee - lawyers charge far too much to setup.  Whoever is the Executor organises the Trust Fund. Another reason to use Public Trustee - far more honest and reliable - Trust Funds run by lawyers are open to all sorts of issues (including heavy management costs).

 

Guys as far as trust maturing age etc leave that to me. Have taken all that into account. Not a total moron.

 

I thought I was clear but me and my son living in Thailand. Have main cash invested in Australia (no property or assets). Have some assets, vehicles, cash etc (no property) in Thailand

 

The wording of the will will cover what my son gets and when he gets it. Anything left in Australia and Thailand will go to my fiancee who will take over the care of my son. (No advice needed on this either thanks. )

 

 

[samran]

19 hours ago, Kenny202 said:

We have had so much differing advice from lawyers and amphur offices re lodging said will. Why I was hoping to cover the lot in one will drawn up in Australia covering monies in trust for my son and also assets in Thailand. I have friends who have foreign drawn wills translated and lodged at an amphur office here. U said yourself you can write yourself out a will so surely a proper document, no matter where it is drafted should do the job? Seems to be like everything here. No definitive rule just do what you think and hope for the best

There's rules about, and a good thread somewhere here in TV which talks about lodging your own will here in Thailand and how it can be done simply. The advice we got was to keep the will separate and for the Thai wills only to cover the assets. The most important thing in all of that is also the power of attorney granted to whoever you nominate in the Thai will. Without it, gaining control of the assets, even by a legitimate beneficiary/heir is a pain in the you-know-what.

[ubonr1971]

I'm interested in this thread as well. 

 

I was going to suggest that you search the property chat forum in oz 

https://www.propertychat.com.au/community/forums/accounting-tax.15/

 

They have an accounting section and a legal section. I seem to remember many threads about trusts in that forum. If not you could raise a new thread and you will get lots of replies. 

 

I also have cash sitting over there but Im in a solid relationship here and would want the wife to get the funds as I know she will do the best for our baby. 

 

I would be interested to know how you get on and hope you would keep updating this thread.

 

Good luck

[emptypockets]

On 12/2/2019 at 5:09 PM, Kenny202 said:

Guys as far as trust maturing age etc leave that to me. Have taken all that into account. Not a total moron.

 

I thought I was clear but me and my son living in Thailand. Have main cash invested in Australia (no property or assets). Have some assets, vehicles, cash etc (no property) in Thailand

 

The wording of the will will cover what my son gets and when he gets it. Anything left in Australia and Thailand will go to my fiancee who will take over the care of my son. (No advice needed on this either thanks. )

 

 

Keep in mind if you get married your previous will becomes obsolete so you will have do it again. If you don't your new wife will get the lion's share if not all of your assets.

I had to do this when I married my Thai Mrs in Australia.

[Isee]

The first question to be answered is the relevant jurisdiction in Aus (ie which State). This may not be a big issue, if as you say, your assets are held in financial institutions - however if you opened a bank account in Qld for example, that may be the more appropriate jurisdiction to do your Will in - however your particular circumstances may change that simple presumption. It is a requirement when applying for probate that assets have been left in that State to confirm the Court has proper jurisdiction to grant probate for the estate. 

 

If we take Qld as an example, the relevant legislation states a beneficiary cannot receive a gift until reaching the age of 18 (this would be the case for most of Australia). In this instance, there is no need to create a trust per se, the operation of a gift to a minor (anyone under 18) results in the funds being held "on trust" by the executor pending the ability to disburse in accordance with the terms of the Will. This means, any assets are usually converted to cash and normally rolled over in fixed term deposits - as this requires the least amount of ongoing management - however this is ultimately determined by the executor. The executor will setup an estate account to manage the money. 

 

I see some have suggested the age of 30 for a beneficiary - this would be bad advice as it would allow a beneficiary (at least in Aus) to challenge that restriction which would result in unnecessarily incur costs for the estate. The executor could not simply say OK I'll give it earlier as the Will doesn't allow/authorise them to do so - so you have to get the Court to make the order (being the Supreme Court). It is generally accepted in practice that the maximum age restriction should not exceed 25y/o, with 21 being a safe compromise. 

 

If you want to provide an ongoing allowance for your son rather than a lump payment (ie a trust baby), you could set up a testamentary trust within your Will (the costs of such a document will be considerably more as they are by their nature complicated). There are benefits to creating a testamentary trust which can offset the initial outlay. 

 

As noted by other posters, it is easier to deal with assets in a particular jurisdiction by way of a Will created in that jurisdiction. Otherwise you have to apply to the Court (Supreme) to recongnise the validity of a foreign Will and sealing same which would probably end up costing more, but also putting additional complications in the mix - and you don't want complications when dealing with a deceased estate as it = more money expended. 

 

If you engage a professional to be your executor/trustee this would normally allow them to charge fees. Some are 100% honest, some not so. With a lawyer, you have the normal grounds to rely upon where an executor misbehaves, plus you (more so your beneficiary) can have them investigated by the Legal Services Commission. Alternatively there are 'trustee companies' you can appoint. 

 

Hope the above clarifies some things for you. 

 

Edit: I would just like to add that suggesting the Public Trustee to manage your estate would be the absolute last choice you would want. If you think lawyers charge a lot, any person recommending the Public Trustee haven't seen/experienced how they can strip, delay and frustrate an estate administration. Of course if little money forms the estate, the PT are indifferent to the whole thing. The Public trustee has billing down to a fine art form and they aren't accountable with their billing like a lawyer is. 

 

 

Edited December 4, 2019 by Isee

[Rawairat]

In almost the same situation, divorced and looking after I child. I did mine through a lawyer in the NT cost $400. He advised against a trust unless your talking about 6 figures so I made it out to get the kid supported in the profits from the investments until the is 25, then he gets the lot. My Thai assets go to the missus but we are still on talking terms, hers go to the kid.