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Who Really Holds The Power In Your Family Trust?

In the typical family trust, there are several significant positions of power.

Settlor

A family trust begins life with a settlor who pays (ie. settles) a nominal sum, (often $20.00) (the settled sum), to the trustee to hold on trust for the beneficiaries under the terms of the trust deed. Once the trustee receives the settled sum other funds or assets can then be transferred to the trust. After the settlor pays the settled sum, the settlor takes no further part in the trust.  

Trustee

The trustee holds the assets of the trust and has the power to determine how the income and the capital of the trust will be allocated amongst the beneficiaries. The trustee also decides the activities to be conducted by the trust.  The trustee can be one or more individuals or a company (a corporate trustee).

Beneficiary

The beneficiaries are people (including entities) who benefit from what is held in trust. A discretionary trust usually has a wide range of beneficiaries, including companies and other trusts. The beneficiaries of a discretionary trust do not have an interest in the assets of the trust, until the trustee exercises its discretion to make a distribution.

Appointor

As the trustee is the person who determines the distribution of capital and income amongst the beneficiaries, it is often thought the trustee has control over the trust property.  However, the appointor, (sometimes called the principal), has the power to fire and hire the trustee and therefore has ultimate control of the trust.

Guardian

It is common, (but by no means universal), for family trust deeds to also have a guardian.  The guardian usually has certain powers of veto. Commonly the trust deed cannot be amended without the consent of the guardian. The guardian’s consent may be required to make capital payments to beneficiaries.

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