In this edition of 'It depends', partner Scott Hay-Bartlem talks about what happens if you lose your trust deed and what to do about it.


Hello. Welcome to It Depends.

Today we're going to talk about 'Will my trust end if I lose my trust deed?'

Why are trust deeds important?

So, for any kind of trust, family trusts, unit trusts, SMSFs, the trust deed is important because it sets out the terms of the trust. If we don't have the trust deed, we don't know what the rules of the trust say and that can give us some very practical problems like borrowing from banks and also can give us some nasty legal problems.

Does my trust end if I have lost my trust deed?

This is another it depends. So, this is really topical because there were two cases in 2021 where trust deeds were lost for family trusts. In one case, the family were in agreement about what should happen. We had another trust deed from the same provider about the same age, and the parties were all happy that that was the terms of the trust. And in that case, the court varied the terms of trust to a proposed trust deed and the trust continued. In a second case in 2021, the family was in dispute. We had no idea what the rules of the trust were. The mother who put the money in the trust in the first place was leaving all those trust assets under the Will, and the circumstances were far less clear. And in that case, the court said the trusts fail and ended and all the assets went back into mother's estate to be dealt with under her Will. Which was a very different result if it had been sitting in the family trust.

What do I do if I've lost my trust deed?

So, the answer is, and it depends. Don't just ignore it. We need to take some action and get the terms of the trust re-established if we can. We have posted another It depends about what to do if you've lost your trust deed, but don't just ignore that fact. If you've got any questions about lost trust deeds, trust deed terms, how to deal with ending a trust, contact a member of our team. Thanks for watching this It depends.

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