Testamentary Trusts in Australia: Do You Need One in Your Will?

12 min read · Updated 12 June 2026

On this page
  1. What Is a Testamentary Trust?
  2. Why Use a Testamentary Trust?
  3. Tax Benefits Explained
  4. Asset Protection Benefits
  5. Control Over Distribution
  6. When Do You Need a Testamentary Trust?
  7. Types of Testamentary Trusts
  8. Costs of Testamentary Trusts
  9. Choosing a Trustee
  10. Setting Up a Testamentary Trust
  11. Testamentary Trust vs Other Options
  12. State-Specific Considerations
  13. Legislation and Official Resources
  14. Related Guides
  15. Is a Testamentary Trust Right for You?

Quick answer

A testamentary trust is created by your will and comes into existence when you die, holding and managing assets for your beneficiaries according to terms you set. It offers three main benefits: tax savings, asset protection, and control over how inheritance is distributed.

  • Tax savings: Income from inherited assets distributed to minor children is taxed at adult marginal rates (tax-free up to $18,200) instead of penalty rates.
  • Asset protection: Inheritance is held in trust, harder for a beneficiary's creditors, bankruptcy, or divorce to reach.
  • Control: You set vesting ages and trustee discretion to decide when and how beneficiaries receive their inheritance.
  • Most valuable for: Families with minor children or larger estates, where tax savings can exceed the added cost.

A testamentary trust is one of the most powerful estate planning tools available to Australian families. This guide explains what they are, when you need one, and how they can protect your beneficiaries and save significant tax.

What Is a Testamentary Trust?

A testamentary trust is a trust established by your will that comes into existence when you die. Key characteristics:

Feature Testamentary Trust
Created by Your will
When established Upon your death (after probate)
Managed by Trustee you appoint
Beneficiaries People you specify
Duration Until you specify (often 18-80 years)
Assets held Your estate assets

Simple Definition: Instead of giving assets directly to beneficiaries, you give them to a trust, which holds and manages the assets for the beneficiaries' benefit according to rules you set.

Why Use a Testamentary Trust?

Three Main Benefits

Benefit How It Works Who Benefits
Tax savings Minor beneficiaries taxed at adult rates Families with children
Asset protection Assets protected from creditors, divorce All beneficiaries
Control You decide when/how assets distributed Young beneficiaries, vulnerable beneficiaries

Tax Benefits Explained

Key point

Income distributed to minor children through a testamentary trust, from assets that came from the estate, is taxed at adult marginal rates, so each child can receive up to $18,200 tax-free instead of facing penalty rates that start at $416.

The Minor Beneficiary Advantage

Normally, income earned by minors from unearned sources is taxed at penalty rates:

Income Normal Tax for Minors
$0 - $416 0%
$417 - $1,307 66%
$1,308+ 45%

But income a testamentary trust earns from assets transferred from the deceased estate (and accumulations of them) is taxed at adult marginal rates (s102AG Income Tax Assessment Act 1936). Assets added to the trust from other sources later do not get this treatment. Resident rates for 2024-25 and 2025-26:

Income Testamentary Trust Rate
$0 - $18,200 0%
$18,201 - $45,000 16%
$45,001 - $135,000 30%

Worked Example: The Tax Savings

A hypothetical example, using simplified figures: a family has 3 children (ages 8, 12, 15), and the inherited assets produce $60,000 a year in investment income.

Scenario Tax Paid
Without testamentary trust (income to one adult) ~$10,000 (including Medicare levy)
With testamentary trust (split among 3 children) ~$0
Annual saving ~$10,000

The saving repeats each year until the youngest turns 18. Actual results depend on the income, the tax rates at the time, and each child's other income.

How Income Splitting Works

Structure Tax Result
One beneficiary One tax-free threshold ($18,200)
Three beneficiaries Three thresholds ($54,600 tax-free)
Mix of adults and children Each gets their own threshold

Asset Protection Benefits

What a Testamentary Trust Protects Against

Threat How Trust Protects
Beneficiary's divorce Assets in trust, not beneficiary's name, harder for ex-spouse to claim
Beneficiary's bankruptcy Trustee controls assets, not the bankrupt beneficiary
Poor money decisions Beneficiary can't spend trust capital unwisely
Predators and manipulators Trustee provides oversight on distributions
Future lawsuits Assets held in trust, not personally

How Strong Is the Protection?

Scenario Protection Level
Beneficiary's personal debt Strong, creditors can't easily access trust
Beneficiary's divorce Moderate to strong, depends on involvement
Family provision claim Limited, trust assets may still be claimed
Beneficiary's bankruptcy Strong, if properly structured

Important: Asset protection is not absolute. Courts can "look through" trusts in some circumstances, particularly if the beneficiary has significant control.

Control Over Distribution

Setting Vesting Ages

Instead of beneficiaries receiving everything at 18, you can specify:

Option Structure
Single age Everything at 25 (or any age you choose)
Staged 25% at 21, 50% at 25, remainder at 30
Milestone-based Portions released on completion of education, steady employment, etc.
Lifetime Never vests, trustee manages forever (special needs)

Trustee Discretion

You can give trustees power to:

  • Make early distributions for specific purposes (education, home deposit)
  • Withhold distributions if beneficiary has addiction or financial problems
  • Adjust distributions based on beneficiaries' needs
  • Invest conservatively or aggressively based on circumstances

When Do You Need a Testamentary Trust?

Key point

A testamentary trust is most valuable for families with minor children or larger estates, where the tax savings can exceed the added setup and ongoing costs.

Strongly Recommended

Situation Why
Minor children Tax benefits + protection until mature
Larger estate producing significant income Tax savings may exceed costs
Beneficiary with disability Lifetime management, Centrelink protection
Concerns about beneficiary's spouse Divorce protection
Beneficiary with addiction Controlled distributions
Blended family Protect children from different relationships

May Be Worth Considering

Situation Why
Mid-sized estate Benefits may outweigh costs
Adult children who are good with money Still provides some tax benefits
Potential family provision claims May offer some protection

Probably Not Needed

Situation Why
Smaller estate Administration costs may exceed benefits
Simple estate, adult children Direct inheritance is simpler
No tax planning opportunity Limited income-producing assets

Types of Testamentary Trusts

Discretionary Testamentary Trust

Most common type. Trustee has discretion over distributions.

Feature Detail
Flexibility High, trustee decides who gets what, when
Tax planning Excellent, income can be split among beneficiaries
Asset protection Good, beneficiaries don't "own" assets
Complexity Moderate, requires trustee to make decisions

Protective Testamentary Trust

Specifically designed for vulnerable beneficiaries.

Feature Detail
Purpose Protect beneficiaries with disability, addiction, poor judgment
Control High, trustee has significant control
Centrelink Can be structured to preserve benefits
Duration Often lifetime

Capital Reserved Trust

Capital preserved, only income distributed.

Feature Detail
Purpose Preserve wealth across generations
Distribution Income only, capital stays in trust
Best for Very large estates, generational wealth

Costs of Testamentary Trusts

Setup Costs

Component Typical Cost
Will with testamentary trust provisions $2,000-$5,000
Complex trust structures $5,000-$10,000+
Simple will (comparison) $300-$800

Ongoing Costs (After Your Death)

Annual Cost Amount
Trust tax return $500-$1,500
Trustee administration $500-$2,000
Professional trustee (if used) 0.5%-1.5% of assets
Investment management Variable

Cost-Benefit Analysis

Whether a testamentary trust pays for itself depends on how much income the inherited assets produce, how many beneficiaries can share it, and the ongoing costs of running the trust. For a smaller estate the costs can outweigh the savings; for an estate that produces significant income for minor children, the savings can be larger than the costs. A solicitor or tax adviser can work through the numbers for your situation.

Choosing a Trustee

Trustee Options

Option Pros Cons
Family member Knows family, no fees May lack expertise, conflicts
Professional trustee company Expert, impartial Fees (0.5-1.5%/year)
Public Trustee Government-backed, affordable Less flexible
Combination Balance expertise and family Complexity

Trustee Responsibilities

Duty What It Means
Act in beneficiaries' interests Every decision prioritises beneficiaries
Invest prudently Balanced, appropriate investments
Keep records Document all transactions
Distribute appropriately Follow trust terms
File tax returns Annual trust tax return

Setting Up a Testamentary Trust

Process Overview

  1. Consult an estate planning lawyer (this is too complex for DIY)
  2. Discuss your goals (who benefits, when, how)
  3. Draft the trust provisions in your will
  4. Choose trustees (and discuss with them)
  5. Execute the will with proper witnessing
  6. Review periodically (every 3-5 years)

What to Discuss with Your Lawyer

  • Who should be beneficiaries (primary and secondary)
  • When should beneficiaries receive capital (vesting ages)
  • Who should be trustee (and alternates)
  • What powers should trustee have
  • How should income be distributed
  • What happens if beneficiary dies

Testamentary Trust vs Other Options

Feature Testamentary Trust Direct Gift Family Trust
Created At death At death During lifetime
Minor tax benefits Yes (adult rates) No No
Asset protection Yes No Yes
Control after death Yes No Depends
Setup cost Higher Lower Higher
Ongoing costs Yes No Yes
Flexibility High None High

State-Specific Considerations

Testamentary trusts are governed by the will (state law) but taxation is federal. Key points:

Aspect Jurisdiction
Trust creation State succession law
Trust administration State trustee law
Taxation Federal (Income Tax Assessment Act)
Stamp duty May apply on certain transfers (varies by state)

Legislation and Official Resources

Will-making in Australia is governed by each state and territory's own succession legislation. The core statutes include:

Because requirements differ between states and are amended over time, always confirm the current rules for your state, or seek advice from a qualified legal professional.

Is a Testamentary Trust Right for You?

Testamentary trusts offer significant benefits but add complexity and cost. They're most valuable when:

  • You have minor children who will inherit significant assets
  • Your estate generates ongoing income
  • You have concerns about beneficiaries' ability to manage money
  • You want to protect inheritance from divorce or creditors
  • You have a beneficiary with special needs

For families with minor children who will inherit income-producing assets, the tax savings can outweigh the added cost. A solicitor or tax adviser can tell you whether it is worth it for your estate.

For parents who plan ahead

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Last updated 12 June 2026.

This article is general information only and is not legal advice. It is our best interpretation of the law as at 12 June 2026. WillBuddy is not a law firm, and it never replaces advice from a lawyer or solicitor. Laws change and differ between states and territories, so for your own circumstances, please get legal advice.

Questions? team@willbuddy.com.au

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