Discretionary trusts are generally started with just $10 or $20. Mostly trusts are established for a trustee to hold shares or property for the benefit of a beneficiary, so how does the trustee get the deposit or money to do this?
There are basically just 3 options to consider:
A gift is an irreversible transfer from one person to another.
It is better than a loan for asset protection against bankruptcy because if the gift giver goes bankrupt generally the gift will not be available to creditors (but the claw back laws need to be considered).
Gifts to discretionary trusts may not be ideal though because when you die the gift will not form part of your assets and cannot be passed via your will.
If the gift giver is borrowing money to gift to a trust the interest will not be deductible.
Gifts should be documented with a deed.
2. Loans with interest
A loan can be made with interest accruing. However, interest is income to the receiver. Interest may be deductible to the trust if it is using the borrowed money invest, s 8-1 ITAA97.
The interest rate could at market, under market rates or higher than market rates. Each has different consequences.
But a person cannot contract with themselves, so you could not lend to yourself if you are the trustee.
Generally, someone borrowing money to lend to the trustee should consider charging interest to the trust. This interest would need to be at least the same interest that the bank is charging you. But the question you should be asking is if the bank has a first mortgage security over real property and charges say 4% to you, if you lend to the trust at 4% without security would this be a market interest rate? Are there any Part IVA consequences?
A loan should be documented with a written loan agreement which would be either a contract or a deed.
3. Interest free loans
Many like to make interest free loans to trusts because there are no direct tax consequences and the loaned money would generally come back to the lender at death and therefore form part of their estate and can then pass into a testamentary discretionary trust.
But a major issue with loans is the various state limitations acts. This could cause a loan to become unenforceable if there has been no activity with a loan for 6 years (NSW law). So, a loan made say 7 years ago which is interest free and no transactions have happened will not be recoverable if the borrower refuses to pay back. You might think that you are not going to sue a related trust, but you must remember that if you set up a trust you are just in control temporarily. If you lose capacity, go bankrupt or die the control of the trust will pass to someone else.
Interest fee loans should be documented in the same way as loans with interest.
Which method should you use?
You should all get specific legal advice from a lawyer, but as a guide:
- If you have cash and are concerned about bankruptcy a gift might be worth considering
- If you are not concerned about bankruptcy and have cash, then an interest free loan may be worth considering
- If you are borrowing and on-lending the money to the trust a loan with interest may be worth considering.
If you do make a loan you must adhere to the terms of the loan for it to be effective.