QLD Family Trusts and Testamentary Trusts in Wills

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1 April 2015

My Husband and I are looking to revise our wills. We presently have assets (property and shares) in a Family Trust.

We also own our Principal place of residence (held in joint names), superannuation, life insurance and cash, which we would look to will into a Testamentary Trust for our three children and grandchildren (and as these arise).

We are puzzled as to how best incorporate all our holdings most effectively upon the event of both my husband's and my deaths, or how best to structure our will accordingly so as to provide the greatest benefit for our children and their children.

We have searched the internet but have been unable to find any definitive answer on this.

Thank you for your assistance.

Tracy B

Well-Known Member
24 December 2014
Hi puzzled,

The reason you are puzzled and have been unable to find a sample answer on the internet is because will drafting is a service tailored to each person's individual circumstances and wishes. There is no set formula for this. I strongly suggest you have a wills and probates lawyer to draft this comprehensively for you and your husband. You and your husband can make the one will. You can account for all your assets (including shares in family trust), except for superannuation (and possibly insurance). You will each need to contact your superannuation fund and put in a "binding death benefit nomination". This is because funds are not bound by a will and have discretion as to who to give a beneficiary's proceeds to. If you put in a nomination, the fund will follow these instructions.

In your will, you can set up a trust for your children (because children under 18 cannot receive gifts). You can appoint a trustee (or leave this to the executor) and state what the trust will be invested in, how income will be distributed etc.

As for your joint interest in the house, you cannot allocate this to your children if one of you die unless you turn this holding from joint tenancy to tenancy in common (i.e. split the interest). This can be easily done through a deed.

All that you are asking for can be done. However, it should be drafted by a professional so they can account for details, such as who will be the alternative executor? What happens if a beneficiary cannot be found or predeceases the will-maker or does not want the gift? What if there is a security interest over an asset, who will pay for this? Will the children hold the shares jointly or separately? Each of these choices have consequences that need to be explained to you so you can draft a will that exactly reflects your husband and your wishes.