Can You Leave Family Trust Assets Equally?
Can You Leave Family Trust Assets Equally Between Your Children?
If your succession or estate planning involves family trusts, it’s important to understand a common misconception: assets held by a trust cannot be distributed under your Will.
At Granich Partners, we’re trusted legal experts in estate planning, succession planning, and property law. We regularly advise farming families, business owners, and individuals with complex asset structures on how to secure equitable outcomes for their children particularly when trusts are involved.
Why You Can’t Gift Trust Assets in Your Will
By law, assets held in a discretionary family trust don’t form part of your personal estate. This means you cannot simply leave them to someone under your Will.
Instead, you pass control of the trust to others by assigning roles such as:
Trustee – the person or company that runs the trust and distributes income and capital.
Appointor – the person who has the power to appoint or remove the trustee.
Guardian – typically holds veto power over certain trustee decisions, including capital distributions or deed amendments.
Each of these roles play a critical part in who ultimately benefits from the trust.
Why Equal Shares Don’t Guarantee Equal Treatment
We recently reviewed a succession plan for a client who had sold his farm and wished to ensure his adult children would share his legacy equally.
He had:
Appointed all three children as Appointors and Guardians of the family trust; and
Divided the shares in the trustee company equally between them.
On the surface, the arrangement looked fair, however,closer examination uncovered a significant risk as equal roles does not guarantee equal influence.
If two children were to align their decisions, they could outvote the third potentially consolidating control of the trust in their favour. For example one child, who had worked full time on the farm, believed he was entitled to a larger share of the estate, which may lead to a costly litigation.
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Through meeting with the client and taking the time to understand the position and perspectives of all three children, we were able to restructure the estate plan to ensure an equitable distribution of assets. This approach provided a solution for our client and his family and helped ensure that his wishes were safeguarded in the future.
How to Protect Against Future Conflict
To truly protect your family and mitigate against disputes, you need more than equal appointments - you need clear legal structures that enforce fair and equal control.
This can be achieved through:
amending the trustee company’s constitution to require unanimous or special resolution voting;
creating a formal Shareholders Agreement with decision-making protocols; and
modifying the trust deed to reflect your intentions clearly.
At Granich Partners, we specialise in aligning your trust structure with your estate goals to minimise conflict and future-proof your legacy.
Estate and Succession Planning Done Right
Too often, people rely on generic advice or assume their wishes are automatically protected. However, in our experience, particularly with family businesses and rural property, unclear succession plans can lead to fractured families and prolonged legal battles.
Whether you’re passing down a farm, business, or investment property, we ensure your legal structures match your personal intentions - clearly, enforceably, and equitably.
Perth’s Trusted Estate Planning & Property Law Experts
If you’re ready to formalise your succession planning or want to review your family trust arrangements, speak with Granich Partners - Perth’s leading lawyers for:
Estate Planning
Succession Planning
Property Law
Trust and Asset Protection
We’ve guided generations of families across Perth and regional WA to preserve their wealth and protect family relationships for years to come.
Call us on (08) 9324 2111 or Contact Us using the form below to book an appointment to meet with one of our solicitors.