There are several options available for replacing a deceased or incapacitated controller, however all are dependent on what the trust deed for your particular trust says (as trust deeds are all unique). The options can include:
Option 1
The trust deed may name a specific person to take over the control role automatically. You may require a deed of variation or deed of successor for the trust (or both) if you want to change the current plan in the trust deed.
Option 2
The trust deed may name your legal personal representative (i.e. your executor or attorney for financial matters) to take over the control role automatically.
It’s important that your choice of executor in your Will and attorney in your Enduring Power of Attorney is appropriate to control the trust in the best interests of the remaining beneficiaries.
Option 3
The trust deed may allow someone to nominate a person to take over the control role.
Some trust deeds allow a nomination to be made in your Will, however bear in mind that:
- your Will technically becomes part of the trust deed that third parties may demand to see;
- this solution only deals with a controller dying, and does not provide a solution if the controller loses capacity;
- it does not permit planning for multiple contingency events.
Instead, you may require a deed of variation or deed of successor for the trust (or both).
Option 4
The trust deed may have overlooked succession planning entirely and there may not be a plan.
You may require a deed of variation or deed of successor for the trust (or both).
For tailored advice on family trust succession, contact us for an estate planning consultation.
