Family trusts, with discretionary beneficiaries drawn from a pool of existing and future family members and their related entities, first became a common feature of the Australian business and investment landscape in the 1970s.
Many family trusts are holding assets that have appreciated significantly and the transfer of assets out of a family trust will trigger either a taxable CGT event or (if acquired before 20 September 1985) become subject to capital gains tax going forward.
Unlike other structures, family trusts are controlled, rather than owned and thus have often had a key role in asset protection for their primary beneficiaries. In most states and territories, family trusts can last for up to 80 years and so often outlive their 1st generation primary beneficiaries.
As a result the future (and frequently shared) control of a family trust with enduring assets becomes an important estate planning issue for the people currently controlling their family trusts. Strategies such as assigning control to just one beneficiary (with other beneficiaries often being compensated with other assets) are often put in place. Particular strategies include default distribution agreements, forward distribution agreements and rights of use or occupation.
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