Trusts created on death

Trusts may be created during the lifetime of the Settlor or on an individual’s death. This Practice Note considers trusts created on death, either by the testator’s Will or the operation of the Intestacy rules. For information on the creation of trusts generally, see: Creation of trusts—overview and in particular, see Practice Note: Creation of trusts—by Will.

A personal representative (PR) of a deceased individual’s estate may become a trustee of property passing to be held on continuing trusts under the terms:

1. •

   of the deceased’s Will, or

2. •

   of the statutory Rules applying on Intestacy

Once the PRs have paid or distributed all:

1. •

   liabilities

2. •

   debts

3. •

   administration expenses

4. •

   legacies, and

5. •

   the remainder of the estate which is due and able to be distributed immediately

then in respect of any property not immediately distributable:

1. •

   they may take on the office of trustees, or

2. •

   others may have been appointed by the testator to become trustees of the ongoing trusts

The PRs must use the appropriate