|Discretionary / Family Trust with no foreign person exclusion (see below for more info)**||$300|
|Discretionary / Family Trust with foreign exclusion in relation to duty and land tax:|
Note that the standard fee covers 1 jurisdiction.
· One jurisdiction
· Two jurisdiction
· Three or more jurisdictions
|Foreign Person exclusion to vary existing Family/Discretionary trust for a single jurisdiction for duties and land tax purposes (please contact us to discuss if multiple jurisdictions required)||DBA deed: $990
Non-DBA deed: $1250
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|* Additional fees for hardcopy documents apply. Click here
**Unless the foreign person exclusion provisions are included in a discretionary trust deed on establishment additional duty and land tax generally applies. Thus we generally recommend that discretionary trusts be ordered with the foreign exclusion provisions, especially as it is significantly more expensive and risky to insert later on. Note each state/territory's foreign person exclusion provisions differ and we insert specific provisions for the relevant state or territory.
Pricing (apart from duty) includes GST
An additional cost applies to have the deed assessed for duty, eg, $200 in Victoria, $500 in NSW and $25 in the Northern Territory. A duty summary is supplied with each suite of trust documents.
Where DBA Lawyers acts as agent for arranging payment of duty with the SRO in Victoria, the cost of duty is not subject to GST. However, an additional fee of $100 (incl GST) applies for DBA to act as agent and attend to duty assessment, etc.
For variation to an existing trust, click here.
DBA Lawyers offers an excellent discretionary trust deed that is easy to read, provides great flexibility and reflects the latest legislative changes. Our quality discretionary trust documents also include the latest planning strategies (eg, streaming of income and power to allocate expenses to different categories of income). We are also able to take instructions and draft a specially tailored deed to exclude foreign persons for duty and/or land tax purposes for each State or Territory that we are instructed to cover.
- Covering letter
- Trustee resolutions
- Link to ATO forms
- Discretionary trust deed
- Discretionary Trust Memo
A duty summary for each State and Territory in Australia is also included as duty is payable in a number of jurisdictions.
Additional State and Territory taxes – foreign beneficiaries
Most states and territories in Australia have or may introduce legislation imposing additional duty or land tax on ‘foreign’ persons, corporations and trusts. A foreign purchaser duty surcharge may apply where a discretionary trust acquires relevant real estate (usually residential) and the trust is deemed to be a ‘foreign trust’ in the relevant jurisdiction. A foreign or absentee land tax surcharge may apply each year to a discretionary trust that holds relevant land (usually residential) and the trust is deemed to be a ‘foreign trust’ or ‘absentee trust’ in the relevant jurisdiction.
Most jurisdictions deem any foreign beneficiary to have a ‘substantial’ or ‘controlling’ interest, making the trust a ‘foreign trust’. A ‘foreign’ trustee or appointor might also result in a trust a ‘foreign trust’ in some jurisdictions.
Our standard discretionary trust deed does not exclude ‘foreign persons’. If instructed, we can exclude ‘foreign persons’ from being able to benefit under the trust or being a trustee or appointor of the trust. If you want to distribute to foreign beneficiaries, we recommend that you first obtain our advice before ordering. We can then prepare a deed tailored to your specifications for an additional fee.
For more information, click on the articles below:
- DBA Lawyers’ discretionary trust – managing the extra duty and land tax surcharges on foreigners
- Your discretionary trust may unwittingly be subject to extra duty or land tax
Corporate Trustees of Discretionary Trusts
In establishing a new discretionary trust, you should consider the advantages of a corporate trustee over individual trustees. The long-term benefits of a company generally outweigh the up-front cost of incorporation. Some of the main advantages are:
- Asset protection for the directors from third party claims
- Greater protection from trustee taxation liabilities
- Clear separation of ownership of trust assets from individually owned assets
For information about ordering a DBA company, please click here.
For more information and related articles
For more information regarding why you should choose a DBA discretionary trust, click on the articles listed below:
- ATO checklist for trust distribution
- A 1976 deed can’t be found…trust fails as a result!
- Discretionary trusts – variations and issues
- Variation powers — lessons from Re Owies Family Trust  VSC 716
- Why should you order trusts from DBA Lawyers?
- Discretionary trusts & the foreign purchaser duty surcharge across Australia
- Discretionary trusts – NSW duty & land tax surcharges – act before 31 December 2020 or incur extra NSW tax
- Sutton v NRS(J) Pty Ltd  NSWSC 826: Lessons for managing lost trust deeds
- Victoria, NSW and Tasmania foreign purchaser duty update – Discretionary Trusts
- Advantages of ordering unit trusts from DBA Lawyers
- SMSF deeds – which supplier should you use: a law firm or a non-qualified supplier?
- DBA Lawyers’ discretionary trust — managing the extra duty and land tax surcharges on foreigners
- Dealing with a lost SMSF trust deed
- Honey, I lost the deed!