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17 April 2023

It Depends – Will amending my trust deed result in a resettlement of my trust?

In this edition of ‘It depends’, associate Sacha Robinson talks about whether amending your trust deed will result in a resettlement of your trust.

In this edition of ‘It depends’, associate Sacha Robinson talks about whether amending your trust deed will result in a resettlement of your trust.

Video transcript

Welcome to the latest edition of It Depends. Today, we will consider the question, Will amending my trust deed result in a resettlement of my trust?’

Will amending my trust deed result in a resettlement of my trust?

It depends. However, as a result of recent cases and guidelines provided by the ATO, the risk of resettlement has significantly decreased in recent years.

When will an amendment result in a resettlement?

The current position is that there is unlikely to be a resettlement of a trust, provided that the amendment is prepared in accordance with the trust deed, and that the three indicia of continuity are present, which are: continuity of trust deed, continuity of trust property, and continuity of beneficiaries. For there to be a trust resettlement, there must be a change to one of these indicia so significant that it amounts to terminating the existence of the trust.

Why does it matter if there is a resettlement?

A trust resettlement may result in significant tax consequences and in some specific circumstances, duty consequences as well.

What should I do next?

If you would like further advice about whether amending your trust deed results in a resettlement of your trust, please contact me or a member of our team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Scott Hay-Bartlem
Partner
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Clinton Jackson
Partner
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Sacha Robinson
Associate

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