r/AusLegal • u/wise_mind_on_holiday • 8h ago
QLD Testamentary trust or regular will - confused .
Please explain like I’m 5, I’m overwhelmed and whilst I know I need a lawyer to draw up my will I want to have a clearer idea before I go in and not be ‘sold’ something.
My children are 13&14. I want to leave everything to them. They can have it at 18.
They have a parent who lives overseas who is independently very wealthy. Doesn’t have care currently and shouldn’t need it for their care.
I will nominate a legal guardian here in Australia for them.
I have a PPOR, some super, ETF’s & HISA.
If the other parent continues to pay child support then anything I leave will be for the children at 18 years old. If he doesn’t their care costs can come from the estate.
Children don’t wish to go live with Father and I’m unsure if he would even try fight for that. I don’t want him to have access to their funds.
Would like to keep PPOR and it not be sold (so guardian can reside there with them)
I will nominate a family friend as the trustee - but do I need to add terms to make sure it’s handled appropriately?
It feels so complicated that I’m currently doing nothing and just hoping I don’t pass until at least the oldest is 18. I know it’s foolish.
Doubly confused as I thought testamentary trust was the way forward but I think I’ve read that’s been hit by the tax changes , so is it even worth it now?
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u/AggravatingRush445 8h ago
A good lawyer won't sell you a product.
They'll advise and guide, then it's up to you.
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u/itsgreenersomewhere 8h ago
Many lawyers will do a cheap or free initial consultation and advise you about this. You should not be “sold” anything. Their job is to explain like you’re five. But get two opinions to ease your mind :)
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u/CosmicConnection8448 3h ago
Other's have already commented on the money side of things. Just wanted to mention that you naming a guardian here will mean nothing. It will all depend on what the father wants as he will then become their only parent. So I'd make sure he agrees with whatever guardianship plans you have, otherwise your wishes will mean nothing unfortunately.
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u/wise_mind_on_holiday 3h ago
Yes I understand that it’s not a done deal - the guardian will have to apply to court.
It’s a stronger case because the courts apparently consider best interests of child and other parent has had no care for 10+ years and children have never visited / do not wish to relocate.
He obviously still has parental rights but apparently it’s not an automatic thing that he can just force them to move overseas
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u/ItinerantFella 8h ago
Go and see an estate lawyer. They will probably advise you to draw up a will that establishes a testamentary trust on your passing.
We used Estate First Lawyers in Brisbane to prepare our wills.
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u/middleofmybackswing_ 4h ago
Go in and explain what you want and the lawyer will advise you on how to make that happen legally. It will cost money but you get what you pay for with free legal advice from reddit.
Either way please don't be the client that goes in with a preconceived idea of how this must work because of reddit advice.
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u/Dramatic-Resident-64 4h ago
In these cases yes, generally a testamentary trust stands out. Otherwise you need a trustworthy executor
To be honest, consider the fact that if the children are too young to manage your estate. The expenses of the estate could bleed the wealth you’re intending to leave them
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u/Dramatic-Resident-64 7h ago
Depends on your goals.
GENERALLY, for the average joe. A will suffices.
Testamentary trusts require some know how and great organisation to really utilise. So it depends on their legal guardian in the case you pass before they’re old enough.
The fact you’re effectively being “sold” to but a lot of very essential pieces of information were not passed on to you by your lawyer is concerning.
IMO I would find another lawyer
My source: NAL but a banker who has seen several testamentary trusts in his day and the thing they ALL have in common. The people intending to execute it have no idea what and why and ultimately just liquidate the estate and distribute it.
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u/wise_mind_on_holiday 6h ago
The idea is to set up a will where there isn’t an option to liquidate , at least not until the time the children are adults and choose it themselves.
As I understand it that means a standard will isn’t an option for me , because the other parent could still override and force sale, which only leaves testamentary trust.
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u/Dramatic-Resident-64 44m ago
In these cases yes, generally a testamentary trust stands out. Otherwise you need a trustworthy executor
To be honest, consider the fact that if the children are too young to manage your estate. The expenses of the estate could bleed the wealth you’re intending to leave them
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u/wise_mind_on_holiday 18m ago
It’s 4 years until legally they could have the estate ( ie 18)
I would hope the expenses wouldn’t bleed through the entire estate before then ie a house, plus funds and super.
Worst case just the house would be left …. More if I pass closer to them turning 18.And ideally I’m still here at 18 and this whole estate scenario gets much much easier!
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u/Fredxx-2025 3h ago
If u have a couple of million ms a testamentary trust is a must. Do a bit of readings. The main advantage if you create a trust for your children above 18.
You can distribute income to minors and they are taxed like adults. Like guest 20k no tax. Multiple kids u can have shod any tax on 100k etc
If their wife not working they can then distributer for her in lower tax. The
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u/Pink-glitter1 8h ago
Not a lawyer, but don't make it accessible at 18. Make it later, maybe 25? Most 18 year olds won't make good financial decisions. Some might, but best for them to get it when they're a bit more mature to use on a house deposit rather than splurging on a new car at 18 etc.. Just something to consider