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The Change of Trustee for a Discretionary (Family) Trust document package allows you to change the trustee of a Discretionary Trust. It is relevant in many situations, including when a married couple who operate a family trust get divorced and need to change the trustee of their family trust.

The document package covers the following changes to a Discretionary (Family) Trust's trustee:

• from company to company;
• from company to one or more individuals;
• from individual(s) to company; and
• from individual(s) to individual(s).

The change of trustee can be made by:

• the trustee(s);
• one to 3 appointors — if the trust has appointor(s); or
• the first named beneficiary if the trust does not have a trustee or an appointor.

Changing a Trustee for a Discretionary (Family) Trust after a divorce

Quite often as part of a divorce, the couple need to change the trustee of their Discretionary (Family) Trust. You can use the Cleardocs document package to do that as long as:

• if one of the trustees is leaving the trust (and the other is staying), the trustee leaving is consenting to do so; and
• if any one or more of the trustees are being replaced, they are consenting to that arrangement.

Legal sign-off for Change of Trustee for a Discretionary Trust template

Our lawyers at Maddocks — a top 20 Australian law firm — sign-off the master template documents for the Change of Trustee for a Discretionary Trust and its interface, related documents and help information.

The trust must already have a Cleardocs deed

The Discretionary (Family) Trust for which you order this document package must have a Cleardocs deed.

If the trust does not have a Cleardocs deed, then you cannot update the deed to a Cleardocs deed. You can read about why here.

What does the Change of Trustee for a Discretionary (Family) Trust document package includes?

The Change of Trustee for a Discretionary (Family) Trust document package includes all of the documents required to record the change of trustee — namely:

• Trustee consent forms;
• Trustee minutes;
• Appointor minutes
• Change of Trustee Deed; and
• Establishment Kit telling you what to do next.

We pre-populate your answers... saving you some typing

To save you some typing, we will pre-populate your answers for the Change to Trustee document package with the earlier answers you used when you set up the Discretionary (Family) Trust (or previously changed the trustee) on Cleardocs.

You can then review — and confirm or edit — the pre-populated answers.

Can the change of trustee package be used to remove trustee(s) without the relevant parties' consent?

If the change to the trustee is being made without the consent of (for example: trustee(s), appointor(s) and perhaps the first named beneficiary), then this document package cannot be used as the change of trustee would breach the terms of the deed.

Maddocks can provide you with a quote to prepare these documents. Please call us on 1300 307 343 to arrange a quote from Maddocks.

Do all the trustee(s) need to be available to sign documents?

You will need a different set of documents if the retiring trustee(s) are not available to sign the documents — for example, if an individual trustee is no longer alive. The Cleardocs Change of Trustee for a Discretionary (Family) Trust document package is not suitable under these circumstances. Maddocks can provide you with a quote to prepare these documents. Please call us on 1300 307 343 to arrange a quote from Maddocks.

Do the trust need to have a Cleardocs deed to use the Discretionary (Family) Trust document package?

Yes, the trust must have an existing Cleardocs deed to use the Cleardocs Change of Trustee for a Discretionary (Family) Trust document package to change the trust's trustee (for example, after a divorce). As always, you should first seek legal, accounting or financial advice to determine whether the Discretionary (Family) Trust document package suits your needs.

The information under the next heading explains who can make the change in various different circumstances.

How to change the trustee of a Discretionary (Family) Trust

A change of trustee for a Discretionary (Family) Trust that has a Cleardocs deed can be made as follows:

• Resignation A trustee may resign as trustee of the trust by giving the appointor(s), or trustee(s) as relevant, notice. However, unless there is a remaining trustee, the resignation is only effective when a new trustee has been appointed;
• Removal If the trust has an appointor(s), then the appointor(s) may remove a trustee at any time by signing a statement to that effect.
• Appointor's and trustee's powers If the trust has an appointor, then the appointor, or otherwise the trustee, may appoint an additional or replacement trustee at any time by a written statement to that effect.
• First named beneficiary's powers If the trust has no appointor and no trustee, then the first named beneficiary who is still alive may appoint an additional or replacement trustee at any time by a written statement to that effect.
• Automatic termination of trustee's appointment Also, a trustee's appointment terminates automatically if any of the following occurs:
  • the trustee is found to be of unsound mind, or the trustee or his or her estate becomes liable to be dealt with in any way under a law dealing with mental health;
  • the trustee becomes bankrupt or makes an arrangement or composition with his or her creditors; or
  • the trustee enters into compulsory or voluntary liquidation (except for the purposes of amalgamation or reconstruction), or has an administrator, receiver, official manager, or receiver and manager appointed to any part of its assets.