Testamentary Trust

[stumpie]

Hi folks

A question for the legal people on the forum.

if i had a contract of sale where the owners are joint tenants, and if i had a testamentary trust in place where my assets are passed on to the trust. does the property where joint tenants are involved get passed on to the other party thereby preceding the Will where the testamentary trust is setup?

 

[Perp]

Hi folks

A question for the legal people on the forum.

if i had a contract of sale where the owners are joint tenants, and if i had a testamentary trust in place where my assets are passed on to the trust. does the property where joint tenants are involved get passed on to the other party thereby preceding the Will where the testamentary trust is setup?

Are you asking: "If I own a property as a joint tenant, when I die, does the property form part of my estate or get passed to the other party?"

The answer is that it automatically becomes the sole property of the surviving joint tenant(s).

Property owned as joint tenants rarely becomes part of your estate, so doesn't go to the testamentary trust.

 

[Terry_w]

if i had a testamentary trust in place

Who died?

A testamentary trust is settled by the deceased upon their death.

If you have one in your will it will only be activated once you die. Only assets you own and that form part of your estate can go into a TT. With property owned as JT if one dies the suvivors take the 'share' of the deceased.

Where there are 2 JT if one dies the other becomes sole owner and the property doesn't pass via the will. If this person then subsequenntly dies the property will pass according to their will.

If A and B own property as JT and they both die in an accident and it cannot be determined who died first then it would be assumed that the eldest died first. This is why you should only date people older than you because if you die together you will inherit for a microsecond and then can pass the assets via your estate.

You can severe a JT. change from JT to TIC so you can then leave you interest via the will. Also good for asset protection on bankruptcy - see my other thread Asset Protection Tips http://somersoft.com/forums/showthread.php?t=100082

 

[Terry_w]

Property owned as joint tenants never becomes part of your estate, so never goes to the testamentary trust.

I wouldn't say never as there are a few cases where the JT has been determined to be TIC. This is an argument when non spouses own property as JT - the JT can be rebutted by other evidence.eg. Sacks v Klein [2011] VSC 451 which involved 2 brothers

 

[Perp]

I wouldn't say never as there are a few cases where the JT has been determined to be TIC. This is an argument when non spouses own property as JT - the JT can be rebutted by other evidence.eg. Sacks v Klein [2011] VSC 451 which involved 2 brothers

Edited, thanks.

 

[stumpie]

Who died?

A testamentary trust is settled by the deceased upon their death.

If you have one in your will it will only be activated once you die. Only assets you own and that form part of your estate can go into a TT. With property owned as JT if one dies the suvivors take the 'share' of the deceased.

Where there are 2 JT if one dies the other becomes sole owner and the property doesn't pass via the will. If this person then subsequenntly dies the property will pass according to their will.

If A and B own property as JT and they both die in an accident and it cannot be determined who died first then it would be assumed that the eldest died first. This is why you should only date people older than you because if you die together you will inherit for a microsecond and then can pass the assets via your estate.

You can severe a JT. change from JT to TIC so you can then leave you interest via the will. Also good for asset protection on bankruptcy - see my other thread Asset Protection Tips http://somersoft.com/forums/showthread.php?t=100082

Terry you're the man. you've fully answered what's in my mind.