What is a Testamentary Trust?


A testamentary trust is a trust which arises upon the death of the testator and is created by his or her Will.  There are many reasons why you may opt for a Will creating a testamentary trust over a straight-forward Will including:

  • Asset Protection

Assets that are held under a testamentary trust are held and managed by a trustee (as appointed by you) for the benefit your nominated beneficiaries.  Consequently, the beneficiaries do not own the assets of the trust; they merely obtain the benefit that derives from them.   This structure offers protection to your beneficiaries in the event that they are involved in disputes such as bankruptcy or family law in the future where another party may seek possession of their assets.

  • Maintaining Family Wealth

Testamentary trusts are a useful tool for maintaining inter-generational wealth.  They can be set up to ensure only lineal descendants and blood relatives benefit from the trust structure preventing in-laws and extended family from obtaining the benefit of those assets.

  • Protecting Vulnerable Beneficiaries

You may also protect vulnerable beneficiaries by separating the aspect of control and benefit of your assets.  This can be achieved by appointing an independent person to be the trustee of the trust/s rather than the beneficiary themselves.  When an independent person is appointed as the trustee there is a clear separation of control and benefit, allowing the trustee to make appropriate and sensible decisions with respect to the assets.

  • Tax Savings

Ownership of assets through trusts is an effective way to minimise tax, not avoid tax.  Where a beneficiary receives their inheritance in their personal name, they may be subject to capital gains tax at their personal margin tax rate. A beneficiary under the age of 18 years is treated as an adult for tax purposes. That means they can receive $18,200  before paying tax.

  • Tax Flexibility

A testamentary trust structure allows to you the flexibility to distribute any income gains, capital gains, and franked dividends from your estate in the most tax-efficient way possible.  You may distribute the above to your beneficiaries to minimise the tax payable.


If you would like to know more about how a testamentary trust operates and whether it is appropriate for you, please contact one of our friendly staff at Bambrick Legal today:

  • Call us on 08 8362 5269
  • Email admin@bambricklegal.com.au
  • Fill in our enquiry form here
  • Visit our office at 133-135 Rundle Street, Kent Town SA 5067