Does the Cleardocs Hybrid Trust have different classes of units?
No, there is only one class or type of unit.
(However, in certain circumstances, the trustee can make distributions
that are not in proportion to the number of units the unit holders own.)
Each unit attracts the same rights.
However, the class of people who may benefit by virtue of their relationship
with a unit holder will vary depending on whether the unit holder is:
- An individual;
- A corporation; or
- The trustee of a trust.
Can additional units in a Cleardocs Hybrid Trust be issued in the future?
Yes, units may be issued in the future. This is the flexibility that a hybrid trust provides. Further units may be
issued, and units may be sold or redeemed.
The deed sets out:
- The process for issuing more units or selling or redeeming units; and
- How to calculate the price for the relevant units.
Can the unit holders negatively gear their investment in a Cleardocs Hybrid Trust?
No, the Cleardocs Hybrid Trust deed does not allow negative gearing by unit-holders
in respect of funds borrowed to purchase those units - however, the trust may be able to borrow in
its own right and to claim a deduction for interest costs against its own income.
The reason the trust does not allow negative gearing is because the trustee has a discretion
to distribute income:
Among the trust's unit-holders out of proportion to their unit holdings
(provided no unit-holder objects); and
To people other than the actual unit holder provided that they qualify as beneficiaries by
virtue of their relationship with the unit-holder.
These features mean that it is unlikely you can claim a deduction for expenses associated
with owning units in the Trust.
Can a trust own units in a Cleardocs Hybrid trust?
No (but see next 2 questions). A trust cannot own units in a hybrid trust
because the law says a trust is not a separate legal person.
For example, the 'John Smith Family Trust' cannot own units or any other property.
Even so, the trustee of a trust, in his, her or its capacity as trustee,
is capable of owning units and other property - see next question.
Can a trustee own units in a Cleardocs Hybrid trust?
Yes, a trustee can own units in a hybrid trust - as long as you include the trustee's name and
their capacity. For example:
'John Smith in his capacity as the trustee of the John Smith Family Trust'.
In this case, the trustee holds the units in the hybrid trust on trust
for the beneficiaries of the trustee's own trust.
(The trust itself cannot own units as it is not a legal entity.).
Can a corporate trustee own units in a Cleardocs hybrid trust?
Yes, a corporate trustee can own units in a hybrid trust -
as long as you include the trustee's name and their capacity. For example:
'ABC Pty Ltd in its capacity as the trustee of the ABC Family Trust'.
In this case, the trustee holds the units in the hybrid trust on trust for the beneficiaries
of the trustee's own trust.
(The trust itself cannot own units as it is not a legal entity.)
Can a trustee of a Cleardocs Hybrid Trust also be a unit holder in another trust?
Yes. A trustee of a Cleardocs Hybrid Trust can be a unit holder either in his,
her or its own right or as the trustee of another trust.
What do I do if my bank won't give me finance because "the trust deed doesnt allow it"?
If a bank says it wont give you finance because the trust deed wont allow it,
there are 3 steps you can take:
Inform the bank that under the "Overriding general powers" and "Specific powers'"
clauses the trustee has very broad powers including the power to apply for and obtain finance; and
If this doesnt work, ask the bank what amendments to the Deed they require.
Then instruct a lawyer to draft the amendments.
Most issues of this nature can be adequately and promptly addressed in this way.
If I change from an individual trustee to a corporate trustee (or vice-a-versa) does the Deed require
If I change from an individual trustee to a corporate trustee (or vice-a-versa)
does the Deed require amending?
No, the trustee can change from individual trustee to a corporate trustee (or vice-a-versa)
without the deed being amended. However, you will require a resignation from the retiring
individual and consent to act as trustee from the company.
Does a Cleardocs trust give me asset protection?
A trust can play an important role in an asset protection strategy.
However, if you are concerned about asset protection, then you should seek legal advice
concerning your own circumstances.
When should the trustee apply for an ABN for the trust?
ABNs are not compulsory. However, there are many good reasons to have one. For example, ABNs help:
- You to deal with the ATO; and
You in dealing with other businesses when supplying goods or services to them,
or when purchasing goods and services.
Also, you need an ABN to register for GST. Entities carrying on an enterprise in Australia with a GST turnover of
$75,000 must register for GST.
More information can be found at www.abr.gov.au.
Will the trust be entitled to an ABN?
A trust must meet either one of the following 2 criteria to be eligible for an ABN:
The entity is any one of:
- A company incorporated under the Corporations Act 2001 in Australia;
- A charitable institution or trustee of a charitable fund in Australia;
- A deductible gift recipient in Australia; or
- A religious institution in Australia.
The entity can answer 'Yes' to each of the following statements:
- 1. Its activity is carried out in any of:
- 1.1 the form of a business
- 1.2 the nature of trade, or
- 1.3 the form of a regular or continuous grant of a lease, licence or interest in property.
- 2. Its activity is carried out in Australia or it makes supplies that are connected with Australia.
- 3. Its activity is not a private recreational pursuit or hobby.
I want to change the trustee of my hybrid trust from an individual to a corporate trustee. I have not yet
incorporated the company to act as trustee. What do I do?
You can create a company through Cleardocs using the Company Registration package. Once you have registered the
company it can be appointed as trustee of the trust. You will need to see a solicitor to draft a Deed of Appointment
and Resignation. This document officially appoints the new company as trustee of your trust and records the outgoing
individual trustee's resignation.
Maddocks can provide you with a quote to prepare these documents. Please call us to arrange a quote from Maddocks.