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Peter G.
Peter G., Solicitor
Category: Australia Law
Satisfied Customers: 767
Experience:  Law degree from the University of Melbourne 1978, with thirty years of practice experience.
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Family trust deed

Customer Question

How do we get a copy of a trust deed for a family trust which was set up in the early 90's and has been misplaced?

Submitted: 6 years ago.
Category: Australia Law
Expert:  Peter G. replied 6 years ago.

Peter J R Gauld :

What State are you in please?

JACUSTOMER-tjkshe87- :

Qld

Peter J R Gauld :

There is no register for these documents, so you can't do a search of that nature.

Peter J R Gauld :

But, active, family trusts have to be serviced annually – taxation returns, etc, so I would think that an accountant would be involved if it were an active trust.

Peter J R Gauld :

Also, a solicitor would almost certainly have drawn the trustee, or, possibly, some other professional person. But it is very likely to be a solicitor.

Peter J R Gauld :

What is your relationship to this matter? Do you have access to the family's solicitors?

JACUSTOMER-tjkshe87- :

Yes but he says he doesn't have a copy of the trust deed either? And doesn't know how to go about getting a copy, we have already asked him.

Peter J R Gauld :

And you know the trust exists?

Peter J R Gauld :

Who told you?

JACUSTOMER-tjkshe87- :

I am the trustee of the trust which my husband and I set up quite some time ago. It has suffered losses which we want to take advantage of. Last taxation was lodged in 2008

Peter J R Gauld :

You know the last taxation was launched in 2008, and you do not know who did it?

Peter J R Gauld :

How do you know it was lodged?

JACUSTOMER-tjkshe87- :

Yes I know who did it the accountant I referred to earlier.

Peter J R Gauld :

Okay, so the accountant has prepared the returns but does not have a copy of the deed?

JACUSTOMER-tjkshe87- :

Correct.

Peter J R Gauld :

Well I think you have a difficult problem here. It is not usual or necessary for bodies like ASIC to have copies of these documents. They are private documents, just like a private contract. The people that usually have copies are accountants and solicitors. Solicitors must hold files for at least seven years, but they often hold them for much longer. Some solicitors digitize the paper files and hold indefinitely. Moreover, solicitors would regard the deed itself, as opposed to the whole file, as an important document that would not be disposed of after, say, seven years. They will hold in their deeds file indefinitely.

Peter J R Gauld :

Also, they are not usually documents that people put in banks, as they do often with Wills.

Peter J R Gauld :

I think you will have to trace down the solicitor who prepared this document; =families generally no which solicitors have been consulted. Often a local, suburban, solicitor will not have the expertise to prepare these documents, but it is likely that they would refer it off to someone they know.

Peter J R Gauld :

It is possible that all copies of the documents have been lost or disposed of. I have never encountered this problem, but I would think that the only way around this would be to draw up a new deed. Generally speaking discretionary family trusts are all fairly similar.