Copying your trust deeds to set up a 2nd trust

[MichaelM]

I am surprised to see once you have a set of trust deeds you can set up a second trust for $10 at the Office of State Revenue with no further involvement from your solicitor or accountant -

http://www.somersoft.com/forums/showthread.php?postid=22830#post22830

Is this legal? It would be easy to retype a second copy of your trust deeds, minus your accountants letterhead but I would have thought whoever wrote your original trust deed wouldn't allow you to use their deeds, with copyright issues etc.

It would be a huge saving to set up another trust if possible.

???

 

[DaleGG]

HI

Before I comment properly, I'd like to make two things clear . . .

1. I am not familiar with SA law;
2. I have a vested interest in telling people to use their professinals, so, take my comments with a grain of salt given my bias; and
3. If Duncan says its possible, I for one would not doubt that it can be done.

I know, I said 2, I just can't count . . . .

Now, the reason I would not advise you to do this is that trust deeds are legal documents and for most of us, the idea of using a trust is often entwined with our need for asset protection.

So, if we somehow (and I'm not sure how, either) create a problem by copying the deeds and creating a new trust ourselves, then, this problem will not be evident until the asset protection problem arises.

At that point, our initial saving might end up costing a lot, lot more!!

See disclaimer of bias above . . . .

Be careful please

Dale

Originally posted by MichaelM
I am surprised to see once you have a set of trust deeds you can set up a second trust for $10 at the Office of State Revenue with no further involvement from your solicitor or accountant -

http://www.somersoft.com/forums/showthread.php?postid=22830#post22830

Is this legal? It would be easy to retype a second copy of your trust deeds, minus your accountants letterhead but I would have thought whoever wrote your original trust deed wouldn't allow you to use their deeds, with copyright issues etc.

It would be a huge saving to set up another trust if possible.

???

 

[bundy1964]

Hi

Not having Dales bias.

I could copy an old commercial lease and save on legal fees.

I could find a trust document floating around on the net and use that and save on costs.

Considering the upfront cost is minimal compared to the long term benifit I would chose to go with the people who know what they are doing.

bundy

 

[NigelW]

Re: Re: Copying your trust deeds to set up a 2nd trust

Originally posted by DaleGG
HI

Before I comment properly, I'd like to make two things clear . . .

1. I am not familiar with SA law;
2. I have a vested interest in telling people to use their professinals, so, take my comments with a grain of salt given my bias; and
3. If Duncan says its possible, I for one would not doubt that it can be done.

I know, I said 2, I just can't count . . . .

Now, the reason I would not advise you to do this is that trust deeds are legal documents and for most of us, the idea of using a trust is often entwined with our need for asset protection.

So, if we somehow (and I'm not sure how, either) create a problem by copying the deeds and creating a new trust ourselves, then, this problem will not be evident until the asset protection problem arises.

At that point, our initial saving might end up costing a lot, lot more!!

See disclaimer of bias above . . . .

Be careful please

Dale

Same disclosures as Dale...

Bear in mind that the law is an ever changing and evolving beast...particularly tax law...what may have been allowed last time may not be allowed now. Similarly, changes may have given rise to opportunities which you cannot exploit based on the old document. Also, documents, under a process similar to darwinian evolutionary theory , go through a gradual process of improvement and refinement over the years as legislation changes and cases are heard and decided by judges...

So to cut a long comment short. Get good advice each time you implement a structure. Don't try to save a few thousand when there could be a sleeping issue in your documents which will bring the whole structure down!

Also there's a copyright issue

Cheers
N.

 

[duncan_m]

I stand by my original comments. I've done it..

Call me a cynic but I find it farcical that people think that by attending a lawyer you get some form of personalised Trust Deed that takes into account your particular circumstances and aims, and that each time you need a new trust that by attending a lawyer you'll get another finely tuned document..

They fire up MS Word.. copy the Trust Document they got at Law School or that the firm had written years ago.. change the name of the Settlor, Primary Beneficiaries, Trustee.. attach the relevant form (in SA, "Application for Opinion") from the Office of State Revue, get it stamped for $10 and then charge you $600..

By all means get your first Trust Deed done professionally then copy it for your next one..

 

[duncan_m]

Originally posted by duncan_m
I stand by my original comments. I've done it..

Call me a cynic but I find it farcical that people think that by attending a lawyer you get some form of personalised Trust Deed that takes into account your particular circumstances and aims, and that each time you need a new trust that by attending a lawyer you'll get another finely tuned document..

They fire up MS Word.. copy the Trust Document they got at Law School or that the firm had written years ago.. change the name of the Settlor, Primary Beneficiaries, Trustee.. attach the relevant form (in SA, "Application for Opinion") from the Office of State Revue, get it stamped for $10 and then charge you $600..

By all means get your first Trust Deed done professionally then copy it for your next one..

I hasten to add that if you take this approach its encumbent on you to monitor significant changes in tax law etc.. as a serious investor this is something thats too important to leave to your local has-been solicitor or Accountant

 

[NigelW]

Originally posted by duncan_m
I stand by my original comments. I've done it..

Call me a cynic but I find it farcical that people think that by attending a lawyer you get some form of personalised Trust Deed that takes into account your particular circumstances and aims, and that each time you need a new trust that by attending a lawyer you'll get another finely tuned document..

They fire up MS Word.. copy the Trust Document they got at Law School or that the firm had written years ago.. change the name of the Settlor, Primary Beneficiaries, Trustee.. attach the relevant form (in SA, "Application for Opinion") from the Office of State Revue, get it stamped for $10 and then charge you $600..

By all means get your first Trust Deed done professionally then copy it for your next one..

Hi Duncan

Judging from the above I reckon you need a new lawyer!

Seriously, if you're not:

a) explaining your goals, needs and purpose in setting up a structure; and
b) asking your lawyer whether your existing structure 1) still works okay and 2) is fine for the new deal...

then you're not really giving your adviser the opportunity to give you some value and you're taking a risk. Clearly it's one you're comfortable with. Others may not be. I guess another question I'd ask is who are you gonna sue if you @#$& it up?

I think you have, however, hit on one important point. Not all advisers are created equal Don't expect your conveyancer to be able to give you detailed tax planning and asset protection advice. Let me give you an analogy. Who do you want doing your life saving open heart surgery - a general surgeon or a well respected cardiac specialist? Presumably you'd prefer the latter (altho judging from your post maybe you'll grab the carving knife and have a go yourself! ).

It's the same with lawyers and accountants. Expert people can charge big bucks because their skill level permits them to provide advice and assistance in implementing client's decisions which save and make the client money.

Duncan I know you take it upon yourself to keep abreast of all the latest tax developments, which is great, but not everyone has the time, inclination (or high boredom threshold ) to do so...they pay their accountant for that.

Just because the document you get this time from your lawyer is basically the same as last time doesn't mean that there hasn't been some skill and effort expended to ensure that legislative changes and case law haven't impacted on the validity of the structure or that thought hasn't been given to whether this structure is suitable for the present venture.

DIY or get advice - the choice is obviously yours...but remember a little knowledge can be a dangerous thing and if the little knowledge is yours, there's no professional indemnity fund to cushion the blow.

Good luck
N.

 

[D.T.]

Hi,

Dale and Nigel have both mentioned the importance of good advice when dealing with the structure of one's assets. I agree with this point.

The issue im concerned about is the copyright breaching one. I can see both sides of this one.

First side of the fence:

* one could argue that if a client has paid a contractor (lawyer / accountant), for both the deed and their time, then the fruits of which (the deed), now belong to the client and they can do as they please with it

*Also, since there are alot of generic ones in circulation, doesn't this mean that the content is general knowledge?

Other side of the fence:

* It could be argued that its not the info in the trust, but the effort in compiling the info.

* It'd be very hard to prove.

-Food for thought

Dave

 

[bbg2003]

time for the tuff questions:

1. Does Dale, Nigel, Chris Batten etc. use a different deed that is individually personalised for their clients?
Noting that "personalised" does NOT mean changing trustees, setllors appointors, beneficiaries, but actually going through each paragraph and inserting and or deleting depending on the clients circumstance.
As far as I know this is not the case.

2. If there are changes in regulations & laws, can the deed be changed without resettling?

3. If you have done the first deed through a "professional" would he advise you of the need to change and how it can be done?
Would'nt Duncan's argument re copy deed be the same again for the changes?

4. Can deeds be viewed by third parties?

5. Are deeds subject to copyright?


D2K, if your paying $300 pr hour, would you expect real
personalised service, or just the "msword" treatment? If this is the case is there any point in using a "professional" (professional what? is for another time...)

Of course the argument of personalized service applies to all "advisory" services


bbg2003

 

[Jean]

Accepting that there is variability in the quality of professional advice and word of mouth is the probably the best guide as to who might be more suitable for certain tasks in different regions, by what means can this experience and knowledge be shared among forumites without treading on sensitive toes?

No-one has an interest in trading gossip about 'wronguns' and 'who has a good accountant in Perth?' seems too broad. Professionals who know their oats and give individual service should be recognised.

As regards trusts and other documentation why can't outputs be compared? Can trust deeds be shown and pros and cons discussed? No, I'm not looking for a freebee to copy because ultimately my needs will be slightly different. And the docs would still be protected by copyright.

Just a thought.

 

[DaleGG]

Hi

I can only speak for myself. Before I do, it is not the copyright issues that worry me, it is the possibility that when you really need the trust to be watertight, it might not be for some reason simply because you have tried to cut corners . . .

Answers to questions below:

We rely on a solicitor to prepare the deeds for us based on our instructions. I understand that those deeds are standard documents on their computer and are modified only if needed, which is very, very rare.

Yes, the deeds can be amended easily enough. However, i would caution doing so without advice first because the wrong type of amendment can create problems and resettlement.

Yes, we keep track of changes and communicate with the solicitor involved. If changes are required because of new laws etc then we would notify our clients accordingly.

I understand that standard deeds are available for review and we have provided them on occassion for people to take to their own solicitor.



As I mentioned, up front, in my first post, I have a natural bias in this discussion and all I ask is that you consider my thoughts with that bias in mind.

Copyright is important, but, the reason why most people create a trust is for asset protection and so I do not understand the thinking that we might save a couple of thousand dollars now, and worry about the consequences later . . .

Dale

Originally posted by bbg2003
time for the tuff questions:

1. Does Dale, Nigel, Chris Batten etc. use a different deed that is individually personalised for their clients?
Noting that "personalised" does NOT mean changing trustees, setllors appointors, beneficiaries, but actually going through each paragraph and inserting and or deleting depending on the clients circumstance.
As far as I know this is not the case.

2. If there are changes in regulations & laws, can the deed be changed without resettling?

3. If you have done the first deed through a "professional" would he advise you of the need to change and how it can be done?
Would'nt Duncan's argument re copy deed be the same again for the changes?

4. Can deeds be viewed by third parties?

5. Are deeds subject to copyright?


D2K, if your paying $300 pr hour, would you expect real
personalised service, or just the "msword" treatment? If this is the case is there any point in using a "professional" (professional what? is for another time...)

Of course the argument of personalized service applies to all "advisory" services


bbg2003