What is a testamentary trust?

Testamentary trusts are written into comprehensive Wills and can only be used by a beneficiary after the Will owner dies. In every Will from Will Wizard, there is 12-page segment dedicated to providing testamentary trusts to beneficiaries. A testamentary trust is not something a Will owner needs to ‘create’. They are already written into the comprehensive Will, waiting to be established by your executor for your beneficiaries after your death. All a Will owner has to do is purchase, and sign, a comprehensive Will.

After the Will owner dies, their comprehensive Will becomes a beneficiary’s testamentary trust document. The document then sits in a drawer, or with their accountant, until it is needed by the beneficiary at tax time.

A beneficiary names their trust (i.e. John Smith Holdings) and receives a tax file number for their trust. Beneficiaries still manage and invest their inheritance as they normally would, but under law, the inheritance is not owned in their own name.

Instead, under law, it is 'held on trust' for the benefit of each beneficiary. By holding their inheritance in a testamentary trust, beneficiaries are able to minimise tax and protect inheritances from third-party threats such as during a divorce or bankruptcy.

The annual accounting costs of a testamentary trust are usually only $300 - $500. Considering the tax benefits & protections, it is a small price to pay.

IMPORTANT:

If your Wills do not include the testamentary trust provisions & terms, your beneficiaries cannot use testamentary trusts after you die.

No, they are not expensive. Especially when the tax minimisation opportunities and asset protection benefits of trusts are considered. Establishment costs

The establishment costs charged by an accountant and/or solicitor are minimial and should form part of the normal estate administration costs handled by the executor on behalf of the estate. An estimate cost for establishment would be approximately $1,000 to $2,000 depending on the rates charged by the accountant and/or solicitor.

Managment costs Each year a beneficiary must submit a simple tax return for their testamentary trust(s). The accounting costs should only range from a few hundred dollars to around a thousand dollars depending on complexity and the rates charged by the accountant. Should loans be made by the trust, minutes will need to be submitted also which may increase the management costs slightly.

Testamentary trusts help beneficiaries protect inherited assets during events like a divorce, and from financial problems like bankruptcy. Testamentary trusts also help beneficiaries to minimise their tax obligations long-term. Testamentary trusts can last for 80 years, with the benefits passing from one generation to the next. Let’s look at the four main advantages in more detail.

Testamentary Trust Advantage #1

Testamentary trusts help protect inheritances from family law claims

Relationships last 10 years on average, so it is statistically probable that a beneficiary will go through a divorce, or de facto break-up after you pass away.

How do testamentary trusts help?

With the inheritance held by a testamentary trust, inherited assets are isolated from the beneficiary’s personal assets. This means the inheritance would not form part of the disputing couple’s combined assets that are up for grabs in Family Court proceedings.

Testamentary Trust Advantage #2

Testamentary trusts protect inheritances from bankruptcy or owing money to creditors, like a bank.

How?

Assets held by a testamentary trust are not personally owned by the beneficiary, and therefore do not form part of the beneficiary’s personal assets.

Therefore, a person or company claiming against the beneficiary that is having financial problems cannot obtain the inheritance held by the testamentary trust.

Testamentary Trust Advantage #3

Testamentary trusts give beneficiaries the option to reduce their personal income tax.

How?

Beneficiaries distribute income from the investment of their inheritance to family members on low tax rates.

A beneficiary can distribute up to $18,200 of income from their testamentary trust, tax-free, to pay for a family member’s education and living expenses.

For an $800,000 estate, earning a modest 5% return, this equates to $40,000 income per year.

With this income distributed to multiple children - over ten years this would mean $400,000 for your beneficiary's family rather than the ATO.

Testamentary Trust Advantage #4

Testamentary trusts allow beneficiaries to reduce capital gains tax.

How?

Beneficiaries are permitted to distribute capital gains from their testamentary trust to family members on a low or nil income.

This way the capital gains tax liability from inherited wealth can be significantly reduced each year.

Also, capital gains tax is not triggered when an asset belonging to you passes via your Will, to a testamentary trust.

The trustee is the person appointed by a beneficiary to manage and control their testamentary trust.

Most beneficiaries choose to appoint themselves as the trustee.

If the beneficiary is over your nominated controlling age, most beneficiaries choose to appoint themselves as the trustee, unless they choose to nominate other persons to act as trustee for them, or they could choose to nominate a private company or corporate trustee.

If a beneficiary is under your nominated controlling age, your executor or their legal representative will act as trustee until the beneficiary reaches your controlling age. Young beneficiaries still have access to funds for their welfare, well-being, education, housing, family & medical needs.

No matter who acts as trustee, the trust assets and trust income are for the benefit of the beneficiary only unless the beneficiary gives permission for someone else to benefit - like their children.

In Wills from Will Wizard, there are a set of defined circumstances where a beneficiary is not permitted to be the trustee of their own trust.

When inherited wealth is at high risk, your beneficiary can be temporarily replaced as trustee by your executor, or the executor's legal representative. The trust assets and income are still for the benefit of the beneficiary only.

This is a common and effective legal strategy that helps to further protect the inheritance during a beneficiary's divorce, or during a beneficiary's financial problems or bankruptcy. This strategy could also be used if the beneficiary develops a serious addiction issue or a mental health concern.

Beneficiaries at risk still have access to funds for their welfare, well-being, education, housing, family & medical needs.

Yes.

At Will Wizard, we rely on CCH Pinpoint® for our specialist legal information and on our consultant estate planning solicitors who review the legal precedents that our Will templates rely on. Our consultant solicitors have over 30 years’ experience in drafting comprehensive Wills for their clients that are drafted to minimise risk and maximise benefit for beneficiaries, while giving executors clear directions and authorities to carry out their duties.

“Wills from Will Wizard comply with Australian Succession legislation and once correctly signed and dated by the Will owner and two independent witnesses (as per the signing instructions provided by Will Wizard) represent valid Australian Wills.”

Terry Purcell LLB Estate Planning Solicitor Legal Practitioner Director RetireLaw Pty Ltd

All Will Wizard customers have up to three years following delivery of their portfolio to request complimentary changes to their nominations and preferences.

New Will(s) expressing your updated nominations and preferences will then be mailed to you. These new Wills must be signed and witnessed as per the signing instructions provided in the Guide For Will Owners which is included in every portfolio.

Having or adopting additional children or accumulating additional assets does not mean you need to update you Will. Will Wizard accounts for the potentiality of additional children and changing assets.

Will Wizard standard pricing includes free changes for 3 years post-delivery, with a maximum of two change requests per year within that period. For each change request you can alter any original nominations and preferences.

Every Will Wizard customer receives a secure zipper portfolio with a host of important and useful documents including:

Testamentary Trust Will(s)

Will Wizard’s comprehensive Testamentary Trust Wills allow inherited assets to be protected long term from common circumstances like divorce and bankruptcy and provide valuable opportunities to reduce tax on inherited wealth.

Plain Language Will Summary

All Will Wizard® customers receive a plain-language summary of their Will. We do this so you understand exactly what your Will says and means.

Guide For Will Owners

Every Will Wizard customer receives the Guide For Will Owners document that provides step by step signing instructions and a simple to follow action plan for what Will Owners must do before and after signing their Wills.

Guide For Executors

Every Will Wizard customer receives the Guide For Executors document.

This important document provides a list of priorities and an action plan for executors to follow, along with important additional information and a list of frequently asked questions. This document (combined with our comprehensive Testamentary Trust Wills and Plain Language Will Summary) give clear directions to executors and ensures executors receive the assistance they need.

Guide For Beneficiaries

Every Will Wizard customer receives the Guide For Beneficiaries documents.

This document provides information to assist a beneficiary to understand their options and the many personal and financial benefits of inheriting via a Will from Will Wizard.

Enduring Power of Attorney and Medical Guardianship Forms and instructions for your State or Territory.

These forms are optional to use.

Guide To Powers of Attorney

Every Will Wizard customer receives an important document called Guide To Powers of Attorney.

This document provides information to assist a Will Owner to understand the benefits of nominating a Power of Attorney and Guardian, along with frequently asked questions and information on Powers of Attorney and Guardianship specific to your State or Territory.

Major Assets Record

Every Will Wizard® customer receives a Major Assets Record which is optional to complete.

This document provides you with a convenient place to record details about your assets.

This document helps your executor and can be updated as your asset circumstances change over time.

Beneficiary Loans Record

Every Will Wizard® customer receives a Beneficiary Loans Record which is optional to complete.

This document provides you with a convenient place to record any loans you have made to beneficiaries that you would like your executor to account for when distributing your estate. This document helps your executor and can be updated as your loans to beneficiaries change over time.

Memorandum of Wishes

Every Will Wizard customer receives an important document called a Memorandum of Wishes which is optional to complete.

This document provides a convenient place to record any additional wishes or instructions you may have for your executor. Executors are instructed by your Will to follow any instructions (where practicable) that you may leave in your Memorandum of Wishes or stored with your private papers or with your portfolio.

Family Heirloom & Chattels Record

Every Will Wizard® customer receives an important document called the Family Heirloom & Chattels Record which is optional to complete. This document is a convenient place to record any specific family heirlooms that you may wish to leave to certain family members or friends. By keeping a record of any heirlooms that you have promised to certain family members, you can assist your executor in minimising the chances of a damaging family dispute.

Pet Guardian Nomination Record

Every Will Wizard customer receives an important document called Pet Guardian Nomination Record which is optional to complete. This document is a convenient place to record any specific people or shelters that you would prefer to take care of any pets you may have at the time of your death.

Social Media Data Record

Every Will Wizard customer receives an important document called Social Media Data Record which is optional to complete.

This document provides a convenient place to record your social media usernames and passwords to assist your loved ones to assume control of your social media after your passing.

This clause names your spouse and names your children.

This clause also sets a Controlling Age which is a sensible precaution preventing a beneficiary from taking complete personal control of their inheritance until they reach the age you have nominated.

Children under the Controlling Age still have access to funds for important things like education, housing, medical treatment and general well-being expenses, but won’t be able to use large amounts of their inheritance on immature purchases.

This clause also includes a general statement authorising persons appointed to any roles under your Will (e.g. Executors, trustees etc.) to act jointly or, if only one survives, to act alone.

This clause nominates your first and second choice executors. It is important to note that you should review and update your Will if any of your named Executors pass away or become unavailable for other reasons. Will Wizard provides three years free changes to assist with this.

Due to the long-term asset protection and tax minimisation opportunities that our sophisticated Wills can provide beneficiaries, this clause also includes a sensible recommendation to your executors and primary beneficiaries to consult with a professional financial adviser, accountant and/or experienced estate planning lawyer in respect of any dealings with your estate assets. Our online form allows you to provide details of your current advisors or to simply include a general recommendation to seek professional advice.

To allow each beneficiary full, free and flexible control over their inheritance, this clause also states that each primary beneficiary is the trustee (or ‘controller’) of their respective share of your estate.

Additionally, one the key safeguards that this Will provides is for your executors to take over as trustee if a primary beneficiary is a bankrupt, incapacitated, experiences a divorce, a relationship breakdown (or other third party threat), or has not reached your nominated Controlling Age.

Have questions?

This clause outlines the gifts of personal and household possessions or ‘Chattels’ that you wish to leave to specific people. The clause references any lists you have left with your Will portfolio or other ‘personal papers or files’. The list must be signed and dated by you. Relying on a list that is separate to your Will saves you from having to continually update your Will should you wish to add to or amend your list.

All Will Wizard portfolios include a Family Heirlooms and Small Chattels Record to record your gifts of personal chattels.

Have questions?

This clause states that the balance of your estate goes to your spouse or (de facto partner) as the primary beneficiary of a testamentary trust that your spouse controls.

The ‘balance’ of your estate is your estate less any specific gifts of purely personal items as per the previous clause 'Personal & Household Possessions'.

Inheriting via a testamentary trust can provide important asset protection and tax advantages to your spouse. All Will Wizard testamentary trusts are optional (a beneficiary can choose to use a trust or not), individual (each beneficiary gets their own trust) and discretionary (each beneficiary has complete control over their own trust).

Have questions?

This clause is optional, and if you do choose to nominate a guardian, only becomes relevant if you and your spouse both died leaving children under 18 years of age.

The purpose of the clause is to nominate the people you would prefer to be appointed as guardian of your children. While this nomination via your Will is non-binding, it is sensible for a Will Owner who has young children to make it clear via their Will who their guardian preferences are.

This clause also directs your executors to ensure that your children’s lifestyle is maintained, and provides wide powers to your executors to allow funds to be made available for education, development and advancement to a standard applicable at the date of your death.

The appointment of a guardian is subject to Court approval and there is always the possibility that a Court may exercise its overriding discretion to appoint or remove a guardian other than your nominated guardian. Your children may wish to reside with someone other than your nominated guardian. In these circumstances the Court as always would take your children’s best interests into account in deciding the issue.

The guardian must ensure that the child is appropriately housed, clothed, cared for and educated, and must make important ‘life decisions’ for the benefit of the child.

Have questions?

This clause divides the remaining balance of your estate between your surviving children, with each surviving child able to receive their inheritance in a separate testamentary trust they control.

If you have nominated for your children to inherit equally then this distribution is subject to the Benefit Adjustment provision in Segment 2 that aims to protect inheritance equality.

The terms applying to any 'beneficiary controlled testamentary trusts' created by your Will are set out in Segment 3.

The beneficiary controlled testamentary trusts are optional, meaning beneficiaries do not have to receive their inheritance via a testamentary trust, discretionary, meaning they have full control over their own trust, and individual, meaning that two or more children do not have to share control of a single testamentary trust, thereby reducing the potential for tension and conflict between them.

Inheriting via a testamentary trust can provide long term asset protection and tax minimisation opportunities to beneficiaries.

Have questions?

This clause states that, in the unlikely case of your children dying before you, leaving children of their own (i.e. your grandchildren), the share of any deceased child is to be divided equally between any children of your deceased child.

As with your children, this distribution is based on providing grandchildren to benefit from the option to inherit via a separate testamentary trust that they control (once they have reached your nominated Controlling Age.

Furthermore, and while highly unlikely, this clause states that the share of any deceased grandchild flows down to their children if any (i.e. your great grandchildren), thereby distributing your estate to direct descendants.

Have questions?

As the name of this clause suggests, having a back-up plan for your estate is a safeguard that while unlikely to be needed, is important to include.

It states what is to happen to your estate if none of the persons referred to in the preceding clauses live to inherit as a primary beneficiary of your Will. Without this provision there remains a small chance that your estate could end up in the hands of the State.

Have questions?

When you have two or more children and you wish for your estate to be divided into equal shares for each child, this clause instructs your executors to consider inequalities that may occur in order to protect inheritance equality. Inheritance inequality amongst beneficiaries can lead to damaging and costly legal disputes. Unequal distributions can be caused by:

Financial gifts made to primary beneficiaries during your lifetime, which you have recorded in writing;
Amounts owed to you by any of the primary beneficiaries under a written loan agreement;
Any financial obligation you may have at the date of your death as guarantor for any of the primary beneficiaries;
Superannuation and pension death benefits paid to one of the children who is a dependant and another who is not a dependant;
Life insurance policy ownership; e.g. death benefits paid to a child nominated as policy owner or beneficiary;
Discretionary trust allocations (it may appropriate to provide that the discretionary trust become a restricted, fixed or discretionary trust for a beneficiary unlikely to have children or grandchildren).

This clause does not apply if you have chosen to leave your estate to your children in unequal shares.

Have questions?

The type of trust that might best suit a primary beneficiary given their circumstances and given the various tax and other laws that may or may not impact their inheritance in the future is impossible to predict. This clause provides examples of different types of trust options possible, giving your executors the discretion to vary the terms of trust so that each beneficiary can choose the type of trust that best suits their needs and circumstances.

Once again, a beneficiary should get professional advice before deciding on the type of trust that best suits their needs.

Have questions? Review our FAQ or Submit a ticket and we will get back to your asap :)

This clause provides your executors, with the consent of the relevant primary beneficiary, the authority to bypass or avoid a beneficiary controlled testamentary trust.

Your executors are given the power, subject to the primary beneficiary’s consent, to distribute an inheritance direct to a beneficiary. Your Executors, again subject to the consent of the primary beneficiary, also have the power to distribute to another trust.

Have questions? Review our FAQ or Submit a ticket and we will get back to your asap :)

This clause provides for all or part of any superannuation death benefits received by the estate to be held or distributed on terms that satisfy the requirements for tax exemption. The terms of any superannuation death benefits distribution or testamentary trust may be set out in the Will, or a trust can be established after death into which the death benefits can be directly paid.

If you have a surviving spouse and also leave dependants under 18, this clause provides your executors with the option of placing all or part of any death benefits paid to the estate in a special superannuation death benefits testamentary trust. Again, as with beneficiary controlled testamentary trusts, unwanted superannuation death benefit trusts can be avoided.

To preserve income tax exemption, beneficiaries of a superannuation death benefits testamentary trust are usually confined to tax dependants for death benefit purposes. A superannuation death benefits testamentary trust is essentially an alternative to the beneficiaries of the trust receiving a pension from the superannuation fund.

A pension from a superannuation fund is also concessionally taxed in the hands of the beneficiaries under 18. However, it does mean that capital is converted into income and your executors do not have day to day control of the money and cannot access the capital without bringing the pension arrangements to an end.

Have questions? Review our FAQ or Submit a ticket and we will get back to your asap :)

This clause sets out the terms that administer each beneficiary controlled testamentary trust established by the Will. The terms provide your beneficiaries with flexibility to manage their inheritance. The terms are similar to a discretionary trust established by Deed, but include important differences. Among other things, the terms define:

The class of beneficiaries;
Distributions of net income, capital and other benefits to beneficiaries;
The power to trustee appointments;
The sharing of control if two or more beneficiaries take control of the trust after the primary beneficiary dies,
The circumstances where your executors assume control in the event of the primary beneficiary become bankrupt or otherwise under a legal disability; and
The eventual winding-up of the trust.

Have questions?

This clause outlines the specific powers executors have regarding a prospective beneficiary.

A prospective beneficiary is one who has not yet attained the relevant Controlling Age you have nominated. Your executors have the power to apply money for the maintenance and support of the beneficiary and to distribute income and benefits to any dependants of the prospective beneficiary.

Alternatively, your Executors can also choose to make the prospective beneficiary the sole income beneficiary.

This clause sets out a range of administrative powers for your executors and trustees.

These powers provide your beneficiaries with almost unrestricted power to deal with their inheritance. Revenue authorities, beneficiaries, lenders and other people dealing with the trust often want to see specific authorisation of aspects of estate or trust administration. Authority is provided to your executors or trustees to add to these specific powers.

Have questions?

This clause provides your executors with the authority to assume control of any non-fixed trusts or the shares in non-fixed trusts you may have at your death, and instructs your executors to then pass effective control to your primary beneficiaries.

However, whether the discretionary trust can be transferred via the Will depends on the terms of the discretionary trust. Not the terms of the Will. If you are the trustee of a discretionary trust, and are unsure of whether the terms of your trust allow for your executor to assume control over the trust on your death, seek independent legal advice.

Have questions?

This clause names your spouse (or de facto partner) and names your nominated primary beneficiaries.

This clause also sets a Controlling Age. This is a sensible precaution preventing a beneficiary from taking complete personal control of their inheritance until they reach the age you have nominated. Your beneficiaries under the Controlling Age will still have access to funds for important things like education, housing, medical treatment and general well-being expenses, but won’t be able to use large amounts of their inheritance on immature purchases.

This clause also includes a general statement authorising persons appointed to any roles under your Will (e.g. executors, trustees etc.) to act jointly or, if only one survives, to act alone.

Have questions?

This clause nominates your first and second choice executors. It is important to note that you should review and update your Will if any of your named executors pass away or become unavailable for other reasons. Will Wizard provides three years free changes to assist with this.

Due to the long-term asset protection and tax minimisation opportunities that our sophisticated Wills can provide beneficiaries, this clause also includes a sensible recommendation to your executors and primary beneficiaries to consult with a professional financial adviser, accountant and/or experienced estate planning lawyer in respect of any dealings with your estate assets. Our online form allows you to provide details of your current advisors or to simply include a general recommendation to seek professional advice.

To allow each beneficiary full, free and flexible control over their inheritance, this clause also states that each primary beneficiary is the trustee (or ‘controller’) of their respective share of your estate.

Additionally, one the key safeguards that this Will provides is for your executors to take over as trustee if a primary beneficiary is a bankrupt, incapacitated, experiences a divorce, a relationship breakdown (or other third party threat), or has not reached your nominated Controlling Age.

Have questions?

This clause outlines the gifts of personal and household possessions or ‘Chattels’ that you wish to leave to specific people. The clause references any lists you have left with your Will portfolio or other ‘personal papers or files’. The list must be signed and dated by you. Relying on a list that is separate to your Will saves you from having to continually update your Will should you wish to add to or amend your list.

All Will Wizard portfolios include a Family Heirlooms and Small Chattels Record to record your gifts of personal chattels.

Have questions?

This clause states that the balance of your estate goes to your spouse or (de facto partner) as the primary beneficiary of a testamentary trust that your spouse controls.

The ‘balance’ of your estate is your estate less any specific gifts of purely personal items as per the previous clause 'Personal & Household Possessions'.

Inheriting via a testamentary trust can provide important asset protection and tax advantages to your spouse. All Will Wizard testamentary trusts are optional (a beneficiary can choose to use a trust or not), individual (each beneficiary gets their own trust) and discretionary (each beneficiary has complete control over their own trust).

Have questions?

This clause divides the remaining balance of your estate between your surviving nominated primary beneficiaries, with each surviving beneficiary able to receive their inheritance in a separate testamentary trust they control. If you have nominated for your beneficiaries to inherit equally then this distribution is subject to the Benefit Adjustment provision in Segment 2 that aims to protect inheritance equality. The terms applying to any beneficiary controlled testamentary trusts created by your Will are set out in Segment 3.

The beneficiary controlled testamentary trusts are optional, meaning beneficiaries do not have to receive their inheritance via a testamentary trust, discretionary, meaning they have full control over their own trust, and individual, meaning that two or more beneficiaries do not have to share control of a single testamentary trust, and thereby reducing the potential for tension and conflict between them. Inheriting via a testamentary trust can provide long term asset protection and tax minimisation opportunities to beneficiaries.

Have questions?

This clause states that if your nominated primary beneficiaries die before you, leaving children of their own, the share of any deceased nominated primary beneficiary is to be divided equally between these children.

If both your nominated primary beneficiaries and their children die before you, leaving grandchildren, then the share is to be to be divided equally between these grandchildren of your nominated primary beneficiary.

This potential distribution to the children, grandchildren or further direct descendants of your nominated primary beneficiaries is based on providing them with the option to also benefit from inheriting via a separate beneficiary controlled testamentary trust that they individually control.

Have questions?

As the name of this clause suggests, having a back-up plan for your estate is a safeguard that while unlikely to be needed, is important to include.

It states what is to happen to your estate if none of the persons referred to in the preceding clauses live to inherit as a primary beneficiary of your Will. Without this provision there remains a small chance that your estate could end up in the hands of the State.

Have questions?

When you have two or more primary beneficiaries and you wish for your estate to be divided into equal shares for each primary beneficiary, this clause instructs your executors to consider inequalities that may occur in order to protect inheritance equality. Inheritance inequality amongst beneficiaries can lead to damaging and costly legal disputes. Unequal distributions can be caused by:

Financial gifts made to primary beneficiaries during your lifetime, which you have recorded in writing;
Amounts owed to you by any of the primary beneficiaries under a written loan agreement;
Any financial obligation you may have at the date of your death as guarantor for any of the primary beneficiaries;
Superannuation and pension death benefits paid to one primary beneficiary who is a dependant and another who is not a dependant;
Life insurance policy ownership; e.g. death benefits paid to a child nominated as policy owner or beneficiary;
Discretionary trust allocations (it may appropriate to provide that the discretionary trust become a restricted, fixed or discretionary trust for a beneficiary unlikely to have children or grandchildren).

This clause does not apply if you have chosen to leave your estate to your primary beneficiaries in unequal shares.

Have questions?

The type of trust that might best suit a primary beneficiary given their circumstances and given the various tax and other laws that may or may not impact their inheritance in the future is impossible to predict. This clause provides examples of different types of trust options possible, giving your executors the discretion to vary the terms of trust so that each beneficiary can choose the type of trust that best suits their needs and circumstances.

Once again, a beneficiary should get professional advice before deciding on the type of trust that best suits their needs.

Have questions?

This clause provides your executors, with the consent of the relevant primary beneficiary, the authority to bypass or avoid a beneficiary controlled testamentary trust.

Your executors are given the power, subject to the primary beneficiary’s consent, to distribute an inheritance direct to a beneficiary. Your Executors, again subject to the consent of the primary beneficiary, also have the power to distribute to another trust.

Have questions?

This clause provides for all or part of any superannuation death benefits received by the estate to be held or distributed on terms that satisfy the requirements for tax exemption. The terms of any superannuation death benefits distribution or testamentary trust may be set out in the Will, or a trust can be established after death into which the death benefits can be directly paid.

If you have a surviving spouse and also leave dependants under 18, this clause provides your executors with the option of placing all or part of any death benefits paid to the estate in a special superannuation death benefits testamentary trust. Again, as with beneficiary controlled testamentary trusts, unwanted superannuation death benefit trusts can be avoided.

To preserve income tax exemption, beneficiaries of a superannuation death benefits testamentary trust are usually confined to tax dependants for death benefit purposes. A superannuation death benefits testamentary trust is essentially an alternative to the beneficiaries of the trust receiving a pension from the superannuation fund.

A pension from a superannuation fund is also concessionally taxed in the hands of the beneficiaries under 18. However, it does mean that capital is converted into income and your executors do not have day to day control of the money and cannot access the capital without bringing the pension arrangements to an end.

Have questions?

This clause sets out the terms that administer each beneficiary controlled testamentary trust established by the Will. The terms provide your beneficiaries with flexibility to manage their inheritance. The terms are similar to a discretionary trust established by Deed, but include important differences. Among other things, the terms define:

The class of beneficiaries;
Distributions of net income, capital and other benefits to beneficiaries;
The power to trustee appointments;
The sharing of control if two or more beneficiaries take control of the trust after the primary beneficiary dies,
The circumstances where your executors assume control in the event of the primary beneficiary become bankrupt or otherwise under a legal disability; and
The eventual winding-up of the trust.

Have questions?

This clause outlines the specific powers executors have regarding a prospective beneficiary.

A prospective beneficiary is one who has not yet attained the relevant Controlling Age you have nominated. Your executors have the power to apply money for the maintenance and support of the beneficiary and to distribute income and benefits to any dependants of the prospective beneficiary.

Alternatively, your Executors can also choose to make the prospective beneficiary the sole income beneficiary.

This clause sets out a range of administrative powers for your executors and trustees.

These powers provide your beneficiaries with almost unrestricted power to deal with their inheritance. Revenue authorities, beneficiaries, lenders and other people dealing with the trust often want to see specific authorisation of aspects of estate or trust administration. Authority is provided to your executors or trustees to add to these specific powers.

Have questions?

This clause provides your executors with the authority to assume control of any non-fixed trusts or the shares in non-fixed trusts you may have at your death, and instructs your executors to then pass effective control to your primary beneficiaries.

However, whether the discretionary trust can be transferred via the Will depends on the terms of the discretionary trust. Not the terms of the Will. If you are the trustee of a discretionary trust, and are unsure of whether the terms of your trust allow for your executor to assume control over the trust on your death, seek independent legal advice.

Have questions?

This clause names your children.

This clause also sets a Controlling Age which is a sensible precaution preventing a beneficiary from taking complete personal control of their inheritance until they reach the age you have nominated.

Children under the Controlling Age still have access to funds for important things like education, housing, medical treatment and general well-being expenses, but won’t be able to use large amounts of their inheritance on immature purchases.

This clause also includes a general statement authorising persons appointed to any roles under your Will (e.g. Executors, trustees etc.) to act jointly or, if only one survives, to act alone.

Have questions?

This clause nominates your first and second choice executors. It is important to note that you should review and update your Will if any of your named Executors pass away or become unavailable for other reasons. Will Wizard provides three years free changes to assist with this.

Due to the long-term asset protection and tax minimisation opportunities that our sophisticated Wills can provide beneficiaries, this clause also includes a sensible recommendation to your executors and primary beneficiaries to consult with a professional financial adviser, accountant and/or experienced estate planning lawyer in respect of any dealings with your estate assets. Our online form allows you to provide details of your current advisors or to simply include a general recommendation to seek professional advice.

To allow each beneficiary full, free and flexible control over their inheritance, this clause also states that each primary beneficiary is the trustee (or ‘controller’) of their respective share of your estate.

Additionally, one the key safeguards that this Will provides is for your executors to take over as trustee if a primary beneficiary is a bankrupt, incapacitated, experiences a divorce, a relationship breakdown (or other third party threat), or has not reached your nominated Controlling Age.

Have questions?

This clause is optional, and if you do choose to nominate a guardian, only becomes relevant if you die leaving children under 18 years of age.

The purpose of the clause is to nominate the people you would prefer to be appointed as guardian of your children. While this nomination via your Will is non-binding, it is sensible for a Will Owner who has young children to make it clear via their Will who their guardian preferences are.

This clause also directs your executors to ensure that your children’s lifestyle is maintained, and provides wide powers to your executors to allow funds to be made available for education, development and advancement to a standard applicable at the date of your death.

The appointment of a guardian is subject to Court approval and there is always the possibility that a Court may exercise its overriding discretion to appoint or remove a guardian other than your nominated guardian. Your children may wish to reside with someone other than your nominated guardian. In these circumstances the Court as always would take your children’s best interests into account in deciding the issue.

The guardian must ensure that the child is appropriately housed, clothed, cared for and educated, and must make important ‘life decisions’ for the benefit of the child.

Have questions?

This clause outlines the gifts of personal and household possessions or ‘Chattels’ that you wish to leave to specific people. The clause references any lists you have left with your Will portfolio or other ‘personal papers or files’. The list must be signed and dated by you. Relying on a list that is separate to your Will saves you from having to continually update your Will should you wish to add to or amend your list.

All Will Wizard portfolios include a Family Heirlooms and Small Chattels Record to record your gifts of personal chattels.

Have questions?

This clause divides the remaining balance of your estate between your surviving children, with each surviving child able to receive their inheritance in a separate testamentary trust they control.

If you have nominated for your children to inherit equally then this distribution is subject to the Benefit Adjustment provision in Segment 2 that aims to protect inheritance equality.

The terms applying to any 'beneficiary controlled testamentary trusts' created by your Will are set out in Segment 3.

The beneficiary controlled testamentary trusts are optional, meaning beneficiaries do not have to receive their inheritance via a testamentary trust, discretionary, meaning they have full control over their own trust, and individual, meaning that two or more children do not have to share control of a single testamentary trust, thereby reducing the potential for tension and conflict between them.

Inheriting via a testamentary trust can provide long term asset protection and tax minimisation opportunities to beneficiaries.

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This clause states that, in the unlikely case of your children dying before you, leaving children of their own (i.e. your grandchildren), the share of any deceased child is to be divided equally between any children of your deceased child.

As with your children, this distribution is based on providing grandchildren to benefit from the option to inherit via a separate testamentary trust that they control (once they have reached your nominated Controlling Age.

Furthermore, and while highly unlikely, this clause states that the share of any deceased grandchild flows down to their children if any (i.e. your great grandchildren), thereby distributing your estate to direct descendants.

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As the name of this clause suggests, having a back-up plan for your estate is a safeguard that while unlikely to be needed, is important to include.

It states what is to happen to your estate if none of the persons referred to in the preceding clauses live to inherit as a primary beneficiary of your Will. Without this provision there remains a small chance that your estate could end up in the hands of the State.

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When you have two or more children and you wish for your estate to be divided into equal shares for each child, this clause instructs your executors to consider inequalities that may occur in order to protect inheritance equality. Inheritance inequality amongst beneficiaries can lead to damaging and costly legal disputes. Unequal distributions can be caused by:

Financial gifts made to primary beneficiaries during your lifetime, which you have recorded in writing;
Amounts owed to you by any of the primary beneficiaries under a written loan agreement;
Any financial obligation you may have at the date of your death as guarantor for any of the primary beneficiaries;
Superannuation and pension death benefits paid to one of the children who is a dependant and another who is not a dependant;
Life insurance policy ownership; e.g. death benefits paid to a child nominated as policy owner or beneficiary;
Discretionary trust allocations (it may appropriate to provide that the discretionary trust become a restricted, fixed or discretionary trust for a beneficiary unlikely to have children or grandchildren).

This clause does not apply if you have chosen to leave your estate to your children in unequal shares.

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The type of trust that might best suit a primary beneficiary given their circumstances and given the various tax and other laws that may or may not impact their inheritance in the future is impossible to predict. This clause provides examples of different types of trust options possible, giving your executors the discretion to vary the terms of trust so that each beneficiary can choose the type of trust that best suits their needs and circumstances.

Once again, a beneficiary should get professional advice before deciding on the type of trust that best suits their needs.

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This clause provides your executors, with the consent of the relevant primary beneficiary, the authority to bypass or avoid a beneficiary controlled testamentary trust.

Your executors are given the power, subject to the primary beneficiary’s consent, to distribute an inheritance direct to a beneficiary. Your executors, again subject to the consent of the primary beneficiary, also have the power to distribute to another trust.

Have questions? Review our FAQ or Submit a ticket and we will get back to your asap :)

This clause provides for all or part of any superannuation death benefits received by the estate to be held or distributed on terms that satisfy the requirements for tax exemption. The terms of any superannuation death benefits distribution or testamentary trust may be set out in the Will, or a trust can be established after death into which the death benefits can be directly paid.

If you leave dependants under 18, this clause provides your executors with the option of placing all or part of any death benefits paid to the estate in a special superannuation death benefits testamentary trust. Again, as with beneficiary controlled testamentary trusts, unwanted superannuation death benefit trusts can be avoided.

To preserve income tax exemption, beneficiaries of a superannuation death benefits testamentary trust are usually confined to tax dependants for death benefit purposes. A superannuation death benefits testamentary trust is essentially an alternative to the beneficiaries of the trust receiving a pension from the superannuation fund.

A pension from a superannuation fund is also concessionally taxed in the hands of the beneficiaries under 18. However, it does mean that capital is converted into income and your executors do not have day to day control of the money and cannot access the capital without bringing the pension arrangements to an end.

Have questions? Review our FAQ or Submit a ticket and we will get back to your asap :)

This clause sets out the terms that administer each beneficiary controlled testamentary trust established by the Will. The terms provide your beneficiaries with flexibility to manage their inheritance. The terms are similar to a discretionary trust established by Deed, but include important differences. Among other things, the terms define:

The class of beneficiaries;
Distributions of net income, capital and other benefits to beneficiaries;
The power to trustee appointments;
The sharing of control if two or more beneficiaries take control of the trust after the primary beneficiary dies,
The circumstances where your executors assume control in the event of the primary beneficiary become bankrupt or otherwise under a legal disability; and
The eventual winding-up of the trust.

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This clause outlines the specific powers executors have regarding a prospective beneficiary.

A prospective beneficiary is one who has not yet attained the relevant Controlling Age you have nominated. Your executors have the power to apply money for the maintenance and support of the beneficiary and to distribute income and benefits to any dependants of the prospective beneficiary.

Alternatively, your Executors can also choose to make the prospective beneficiary the sole income beneficiary.

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This clause sets out a range of administrative powers for your executors and trustees.

These powers provide your beneficiaries with almost unrestricted power to deal with their inheritance. Revenue authorities, beneficiaries, lenders and other people dealing with the trust often want to see specific authorisation of aspects of estate or trust administration. Authority is provided to your executors or trustees to add to these specific powers.

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This clause provides your executors with the authority to assume control of any non-fixed trusts or the shares in non-fixed trusts you may have at your death, and instructs your executors to then pass effective control to your primary beneficiaries.

However, whether the discretionary trust can be transferred via the Will depends on the terms of the discretionary trust. Not the terms of the Will. If you are the trustee of a discretionary trust, and are unsure of whether the terms of your trust allow for your executor to assume control over the trust on your death, seek independent legal advice.

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This clause names your nominated primary beneficiaries.

This clause also sets a Controlling Age. This is a sensible precaution preventing a beneficiary from taking complete personal control of their inheritance until they reach the age you have nominated. Your beneficiaries under the Controlling Age will still have access to funds for important things like education, housing, medical treatment and general well-being expenses, but won’t be able to use large amounts of their inheritance on immature purchases.

This clause also includes a general statement authorising persons appointed to any roles under your Will (e.g. executors, trustees etc.) to act jointly or, if only one survives, to act alone.

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This clause nominates your first and second choice executors. It is important to note that you should review and update your Will if any of your named executors pass away or become unavailable for other reasons. Will Wizard provides three years free changes to assist with this.

Due to the long-term asset protection and tax minimisation opportunities that our sophisticated Wills can provide beneficiaries, this clause also includes a sensible recommendation to your executors and primary beneficiaries to consult with a professional financial adviser, accountant and/or experienced estate planning lawyer in respect of any dealings with your estate assets. Our online form allows you to provide details of your current advisors or to simply include a general recommendation to seek professional advice.

To allow each beneficiary full, free and flexible control over their inheritance, this clause also states that each primary beneficiary is the trustee (or ‘controller’) of their respective share of your estate.

Additionally, one the key safeguards that this Will provides is for your executors to take over as trustee if a primary beneficiary is a bankrupt, incapacitated, experiences a divorce, a relationship breakdown (or other third party threat), or has not reached your nominated Controlling Age.

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This clause outlines the gifts of personal and household possessions or ‘Chattels’ that you wish to leave to specific people. The clause references any lists you have left with your Will portfolio or other ‘personal papers or files’. The list must be signed and dated by you. Relying on a list that is separate to your Will saves you from having to continually update your Will should you wish to add to or amend your list.

All Will Wizard portfolios include a Family Heirlooms and Small Chattels Record to record your gifts of personal chattels.

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This clause divides the remaining balance of your estate between your surviving nominated primary beneficiaries, with each surviving beneficiary able to receive their inheritance in a separate testamentary trust they control. If you have nominated for your beneficiaries to inherit equally then this distribution is subject to the Benefit Adjustment provision in Segment 2 that aims to protect inheritance equality. The terms applying to any beneficiary controlled testamentary trusts created by your Will are set out in Segment 3.

The beneficiary controlled testamentary trusts are optional, meaning beneficiaries do not have to receive their inheritance via a testamentary trust, discretionary, meaning they have full control over their own trust, and individual, meaning that two or more beneficiaries do not have to share control of a single testamentary trust, and thereby reducing the potential for tension and conflict between them. Inheriting via a testamentary trust can provide long term asset protection and tax minimisation opportunities to beneficiaries.

Have questions?

This clause states that if your nominated primary beneficiaries die before you, leaving children of their own, the share of any deceased nominated primary beneficiary is to be divided equally between these children.

If both your nominated primary beneficiaries and their children die before you, leaving grandchildren, then the share is to be to be divided equally between these grandchildren of your nominated primary beneficiary.

This potential distribution to the children, grandchildren or further direct descendants of your nominated primary beneficiaries is based on providing them with the option to also benefit from inheriting via a separate beneficiary controlled testamentary trust that they individually control.

Have questions?

As the name of this clause suggests, having a back-up plan for your estate is a safeguard that while unlikely to be needed, is important to include.

It states what is to happen to your estate if none of the persons referred to in the preceding clauses live to inherit as a primary beneficiary of your Will. Without this provision there remains a small chance that your estate could end up in the hands of the State.

Have questions?

When you have two or more primary beneficiaries and you wish for your estate to be divided into equal shares for each primary beneficiary, this clause instructs your executors to consider inequalities that may occur in order to protect inheritance equality. Inheritance inequality amongst beneficiaries can lead to damaging and costly legal disputes. Unequal distributions can be caused by:

Financial gifts made to primary beneficiaries during your lifetime, which you have recorded in writing;
Amounts owed to you by any of the primary beneficiaries under a written loan agreement;
Any financial obligation you may have at the date of your death as guarantor for any of the primary beneficiaries;
Superannuation and pension death benefits paid to one primary beneficiary who is a dependant and another who is not a dependant;
Life insurance policy ownership; e.g. death benefits paid to a child nominated as policy owner or beneficiary;
Discretionary trust allocations (it may appropriate to provide that the discretionary trust become a restricted, fixed or discretionary trust for a beneficiary unlikely to have children or grandchildren).

This clause does not apply if you have chosen to leave your estate to your primary beneficiaries in unequal shares.

Have questions?

The type of trust that might best suit a primary beneficiary given their circumstances and given the various tax and other laws that may or may not impact their inheritance in the future is impossible to predict. This clause provides examples of different types of trust options possible, giving your executors the discretion to vary the terms of trust so that each beneficiary can choose the type of trust that best suits their needs and circumstances.

Once again, a beneficiary should get professional advice before deciding on the type of trust that best suits their needs.

Have questions?

This clause provides your executors, with the consent of the relevant primary beneficiary, the authority to bypass or avoid a beneficiary controlled testamentary trust.

Your executors are given the power, subject to the primary beneficiary’s consent, to distribute an inheritance direct to a beneficiary. Your Executors, again subject to the consent of the primary beneficiary, also have the power to distribute to another trust.

Have questions?

This clause provides for all or part of any superannuation death benefits received by the estate to be held or distributed on terms that satisfy the requirements for tax exemption. The terms of any superannuation death benefits distribution or testamentary trust may be set out in the Will, or a trust can be established after death into which the death benefits can be directly paid.

If you leave dependants under 18, this clause provides your executors with the option of placing all or part of any death benefits paid to the estate in a special superannuation death benefits testamentary trust. Again, as with beneficiary controlled testamentary trusts, unwanted superannuation death benefit trusts can be avoided.

To preserve income tax exemption, beneficiaries of a superannuation death benefits testamentary trust are usually confined to tax dependants for death benefit purposes. A superannuation death benefits testamentary trust is essentially an alternative to the beneficiaries of the trust receiving a pension from the superannuation fund.

A pension from a superannuation fund is also concessionally taxed in the hands of the beneficiaries under 18. However, it does mean that capital is converted into income and your executors do not have day to day control of the money and cannot access the capital without bringing the pension arrangements to an end.

Have questions?

This clause sets out the terms that administer each beneficiary controlled testamentary trust established by the Will. The terms provide your beneficiaries with flexibility to manage their inheritance. The terms are similar to a discretionary trust established by Deed, but include important differences. Among other things, the terms define:

The class of beneficiaries;
Distributions of net income, capital and other benefits to beneficiaries;
The power to trustee appointments;
The sharing of control if two or more beneficiaries take control of the trust after the primary beneficiary dies,
The circumstances where your executors assume control in the event of the primary beneficiary become bankrupt or otherwise under a legal disability; and
The eventual winding-up of the trust.