Trusts | By Lawyers
Skip to main content

Trusts

This publication covers the establishment, amendment, termination, revocation, and dissolution of a trust.

1 Matter Plan

Overview

The commentary covers the various types of trust structures, including express, family, discretionary, minor, and cloned trusts, as well as the rights and obligations of beneficiaries and the role of individual and corporate trustees. It also provides guidance on taxation requirements and dispute resolution.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The extensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

The Business structures and the comparative table guide provides a comparison of the pros and cons of different business structures.

Precedents in this publication include:

  • Discretionary trusts;
  • Charitable trust;
  • Deeds of:
    • Amendment
    • Delegation;
    • Termination;
    • Removal and appointment of a trustee;
    • Nomination of a new appointor;
  • Trust deed review checklist.
Icon

1 Matter Plan Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Trusts
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Electronic Signing and Witnessing
    • Item icon Business Structures and the Comparative Table
    • Item icon Further information
  • Item icon Overview
    Trusts separate the ownership of property into two components:

    This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Trusts
    • Item icon To do list - Trusts
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Retainer instructions - Trusts
    • Item icon Conflict of interest check
    • Item icon Initial letter to client with Client Care and Terms of Engagement
    • Item icon Client Care and Terms of Engagement
    • Item icon Scope of work - Trusts
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs estimate
    • Folder icon General deeds, agreements, execution clauses and statutory declaration
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon Confidentiality deed
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
      • Folder icon Library of clauses for deeds and agreements
        • Item icon Amendment clause
        • Item icon Confidentiality clause for defined information - All parties
        • Item icon Confidentiality clause for defined information - One party
        • Item icon Confidentiality clause for terms of agreement - All parties
        • Item icon Confidentiality clause for terms of agreement - One party
        • Item icon Costs clause
        • Item icon Counterparts clause
        • Item icon Dispute resolution clause
        • Item icon Events beyond control clause
        • Item icon Governing law and jurisdiction clause
        • Item icon Interpretation clause
        • Item icon No assignment clause
        • Item icon Notices clause
        • Item icon Severance clause
        • Item icon Waiver clause
        • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
        • Item icon Standard annexure note for documents
  • Folder icon B. Types of trust
    • Item icon Express trusts
      Express private trust is the term used by the Trusts Act 2019 for the type of trust for which clients frequently instruct lawyers. An express trust is one that has been formalised in writing, as opposed to an unintentional or deemed trust relationship, which might be found to exist by a court after ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Family trusts
      A family trust is not a specific type of trust and is not defined under the Trusts Act 2019. It is a term used to refer to an express private trust, usually a discretionary trust, established to hold assets or conduct a business for the benefit of a family. The term family trust is virtually ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Discretionary trusts
      At the core of the discretionary trust relationship is the power of appointment which can be conferred either inter vivos or by a will. The power of appointment is the mechanism for vesting authority in the trustee to deal with, dispose of, and distribute trust property.

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Mirror trusts
      Mirror or parallel trusts are created when spouses or civil partners create a family trust for the benefit of each other. This type of trust is part of a couple’s overall estate planning regime and is used when assets are split under the Property (Relationships) Act 1976.

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Cloned trusts
      A cloned trust is created by establishing a new trust with an identical instrument to an existing trust. Assets are transferred from the original to the cloned. Families may prefer to separate their discretionary trusts for succession and asset protection reasons. Cloning a trust may, for example, ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

  • Folder icon C. The trust deed
    • Item icon The trust deed
      The trust deed sets out the rights, obligations, and powers of the trustee and any appointor. The trust deed ideally gives the trustee broad discretion to manage the trust’s affairs. Powers conferred by the trust deed can include:

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Trustees
      A trustee can be a company, or a person over 18 who is not bankrupt or under a legal disability. The trustee has control and responsibility for carrying on the trust’s business and for making decisions about its day-to-day activities. For example, investing trust capital and income, administering ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Settlor
      The settlor signs the trust deed and transfers assets to the trust. The initial trust property can be any assets the settlor chooses to transfer, or a nominal cash amount, such as $10, to establish the trust. The settlor then has no further involvement.

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Appointor
      The settlor cannot be the appointor. It is not necessary to have an appointor. An appointor is also called a protector. They are independent with power under the trust deed to appoint and remove trustees. The trust deed may also require the trustees to obtain the appointor’s consent to actions, ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon The beneficiaries
      A beneficiary of a trust can be an individual, company, or trustee of another trust. It can be tax effective for one of the beneficiaries of a discretionary trust to be a company or trust, with other individual beneficiaries being shareholders of the company or beneficiaries of the other trust. ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Discretionary trust deed - Appointor
    • Item icon Discretionary trust deed - No appointor
    • Item icon AI Prompt for Letter to client with advice on discretionary trust deed
    • Item icon Letter to client with draft trust deed
  • Folder icon D. Administration, taxation and disputes
    • Item icon Administration
      The following administration advantages apply for discretionary trusts:

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Trust deed review checklist
    • Item icon New Zealand business or organisation IRD number application – Inland Revenue
    • Item icon Minutes of company meeting accepting trusteeship
    • Item icon Agenda for trustees meeting - Blank
    • Item icon Minutes and resolution - Blank - Corporate trustee
    • Item icon Minutes and resolution - Blank - Individual trustee
    • Folder icon Annual review
      • Item icon Letter to client for annual trust review
      • Item icon Agenda for trustees meeting - Annual review
      • Item icon Minutes and resolution - Annual review - Corporate trustee
      • Item icon Minutes and resolution - Annual review - Individual trustee
    • Folder icon Beneficiary and distributions
      • Item icon Letter to beneficiary with notice - Blank
      • Item icon Letter to beneficiary with notice of distribution
      • Item icon Minutes and resolution - Distribution - Corporate trustee
      • Item icon Minutes and resolution - Distribution - Individual trustee
    • Folder icon Delegation
      • Item icon Notice of delegation - Delegate
      • Item icon Notice of delegation - Trustee
      • Item icon Deed of delegation under s 70 - All powers and functions
      • Item icon Deed of delegation under s 70 - Some powers and functions
      • Item icon General power of attorney
      • Item icon Clause - Power of attorney for trustee delegation
      • Item icon Minutes and resolution - Delegation - Corporate trustee
      • Item icon Minutes and resolution - Delegation - Individual trustee
    • Folder icon Investment review and strategy
      • Item icon Minutes and resolution - Investment decision - Corporate trustee
      • Item icon Minutes and resolution - Investment decision - Individual trustee
      • Item icon Minutes and resolution - Adopting investment strategy - Corporate trustee
      • Item icon Minutes and resolution - Adopting investment strategy - Individual trustee
      • Item icon Minutes and resolution - Review of investments - Corporate trustee
      • Item icon Minutes and resolution - Review of investments - Individual trustee
      • Item icon Minutes and resolution - Review of investment strategy - Corporate trustee
      • Item icon Minutes and resolution - Review of investment strategy - Individual trustee
    • Folder icon Property and shares
      • Folder icon Purchase of property and shares
        • Item icon Minutes and resolution - Purchase of shares without borrowing - Corporate trustee
        • Item icon Minutes and resolution - Purchase of shares without borrowing - Individual trustee
        • Item icon Minutes and resolution - Prior purchase of property - Corporate trustee
        • Item icon Minutes and resolution - Prior purchase of property - Individual trustee
        • Item icon Minutes and resolution - Purchase of property without borrowing - Corporate trustee
        • Item icon Minutes and resolution - Purchase of property without borrowing - Individual trustee
      • Folder icon Sale of property and shares
        • Item icon Minutes and resolution - Sale of shares - Corporate trustee
        • Item icon Minutes and resolution - Sale of shares - Individual trustee
        • Item icon Minutes and resolution - Sale of property - Corporate trustee
        • Item icon Minutes and resolution - Sale of property - Individual trustee
      • Folder icon Participation in a share scheme
        • Item icon Minutes and resolution - Participation in employee share scheme - Corporate trustee
        • Item icon Minutes and resolution - Participation in employee share scheme - Individual trustee
    • Item icon Taxation
      The following taxation advantages apply for discretionary trusts:

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Residential Care Subsidy
      Over time, to maximise eligibility for the Residential Care Subsidy, the family home can be sold to a family trust at market value, funded by a loan to the trustees. The loan is an asset in the means assessment for the Residential Care Subsidy. Each year, this loan asset can be reduced by $27,000. ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Disputes
      Part 7 of the Trusts Act 2019 deals with the court’s powers to determine trust issues and provisions for dispute resolution. Trusts can become the subject of many disputes, particularly if there are complex financial arrangements, controversial business operations, or complicated family ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

  • Folder icon E. Amending a trust
    • Item icon Amending a trust deed
      Many circumstances requiring amendment of the trust deed can arise, such as:

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Deed amending discretionary trust
    • Item icon Deed of removal and appointment of trustee
    • Item icon Deed of nomination of new appointor
  • Folder icon F. Vesting or termination
    • Item icon Vesting or termination
      Vesting Trusts are required by law to vest and end after 125 years. The trust may provide for an earlier vesting date or link the vesting to a specific event, such as a beneficiary reaching a certain age or the death of a family member.

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Deed of termination of trust
  • Folder icon G. Charitable trusts
    • Item icon Charitable trusts
      Charitable trusts are express trusts established for charitable purposes, enabling the receipt of tax effective gifts from individuals or corporations. They can be established to provide services or distribute funds and are widely used philanthropic vehicles due to the taxation benefits, both for ...

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Charitable trust deed - Appointor
  • Folder icon H. Finalising the matter
    • Item icon Finalising the matter
      When finalising the matter it is useful to remind the client of any ongoing compliance obligations and the relevant dates if any. Any original documents retained on the file can now be returned to the client or arrangements made to secure them in safe custody.

      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

    • Item icon Letter to client finalising the matter
    • Item icon Example invoice
    • Item icon Invoice recital - Trusts
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

Our Authors

A team of legal professionals contribute to By Lawyers' publications, all helping to ensure that content is updated regularly to reflect changes in legislation, practice, and procedure.

Meet Our Authors
Authors