Trust Circular #10: Transfer Property To Trust

Hi Folks

Mark Pytellek here again, of Private Trust Makers (PTM), the makers of your Trust.

Here’s the next chapter of the Non Registered Trust story on how you can engage your Trust to favor your financial future.

To all our valued Trust clients, including the most recent new ones, welcome to our monthly free educational circular as part of our program to educate and upskill our Trust clients so they learn to competently use their Trust without having to run to and rely on lawyers or accountants, thus saving you time and money. The earlier Trust Newsletters are available, free, on our website www.solutionsempowerment.org within the “Non Registered Trust” section under the tab “Resources”

Today’s subject matter topic is “Transfer Property To Trust”.

Notice 1 the information delivered below is not legal ad-vice.
Notice 2 I am not a practicing lawyer nor a Certified Accountant.
Notice 3 the information delivered below is strictly private and confidential, delivered for your personal benefit

Transfer Property To Trust

With the ever increasing level of financial and economic instability throughout the world, many people are feeling vulnerable to predatory corporations, governments and government entities and agents with respect to their property assets. Hence the Trust vehicle is uniquely in a world of its own. Nobody can attack and take property held in Trust without first obtaining the consent of all parties to the Trust.

Some important notes

It is far easier, simpler and quicker to transfer a property title to a Trust at the time of the property purchase than it is to transfer title from your name to that of a Trust.

Years ago property titles were held solely in the Trust name. Later, legislation permitted property titles to be held in the name of the Trustee/s As Trustee For XYZ Trust, and since 2019 only the name/s of the Trustee/s appear on the Certificate of Title (Title) when a property is transferred from the current owner to that of the current owner’s Trust. It shows as <Name of Trustee ATF …> indicating the Title is held in Trust.

Pre – 2019 there was no stamp duty on property transferred from an individual’s name to that of their Trust, but subsequent to 2019 such a transfer may incur stamp duty. Every State and Territory of Australia allows an element of stamp duty exemption within their local Duties Act as well as a general exemption for property assets gifted to the property owner’s Trust where they are the Trustee. The same applies to all Commonwealth Countries and likely other countries too.

Take notice there is not a single valid or legal tax office on earth, and for that reason, often the various Offices of State Revenue within Australia often ignore its own legislation, particularly where it may deprive them of revenue, such as stamp duty exemptions granted within the Duties Acts of the various States and Territories.

Steps To Transfer Property Title

When the decision is made to transfer property Title to a Trust you will need to;

Draft an Affidavit where the testator (you) assert you have gifted your property to XYZ Trust as well as all the details of the transaction, such as date of gifting and any witnesses to the transaction etc, you being the Trustee of the aforesaid Trust, have a J.P. seal the Affidavit.

Engage a competent Conveyancer, unless you are yourself competent to complete a transfer application in your State, to complete a Transfer of Title Application and lodge it at the Title’s Office in the State the property is held within, and

Compile the following documents and forward by registered mail post to the Office of State Revenue;

A cover letter titled “Notice of Transfer of Property to Trust” explaining you have gifted your property to a Trust where you are Trustee of the Trust, or use the stamp duty exemption clause within your State’s Duties Act as the reason for stamp duty exemption, ensuring it is placed as the top document of the assembled collection, then ask the respondent Office of State Revenue to photocopy whatever pages they require of the Trust Deed and return the original to you, being it is an original and you require to keep it, and

An original Trust Deed, and

A copy of the Certificate of Title of the property, and

A copy of the Transfer of Title Application, and

A copy of your Birth Certificate and likely proof of your current address

(Suggested only) A copy of an Affidavit where the testator (you) assert you have gifted your property to XYZ Trust as well as all the details of the transaction, such as date of gifting and any witnesses to the transaction etc, you being the Trustee of the aforesaid Trust, have a J.P. seal the Affidavit.

The proper response from the Office of State Revenue is you will receive an envelope package from the Office of State Revenue bearing:

A Statement of Account bearing a processing fee amount to pay, and

The original Trust Deed, and

Any other correspondence or instructions.

If your Statement of Account shows a processing payment balance that includes stamp duty you will need to contact the Office of State Revenue by telephone and have the stamp duty removed by setting the officer up as follows:

“Hello, my name is <State your Full Name>. I’m calling about the property transfer Statement of Account I received from your office, the account number being ………….. I have some concerns about the Statement of Account.

My lawyer told me that gifting my property to the Trust where I’m the Trustee attracts a stamp duty exemption. Why has this not been applied in my case?”

“Is that not discriminatory, since others have been granted an exemption of stamp duty when transferring title to a Trust? Why are you discriminating against me? <If no satisfaction, ask for their superior and continue…>, or

Are you compelled to uphold and comply with all State (Or Territory) legislation?”

Why do you ask?

“I’ll answer that shortly but first are you compelled to uphold all State (Or Territory) legislation, yes or no?”

Well yes.

“Ok, are there any State (or Territory) Acts you are not compelled to uphold or comply with?”

No (or) Where is this going?

“I’ll come to that, I require certainty, a yes or a no please?”

“Great, so what about s118 of the Duties Act Qld 2001? That section grants an exemption for property transferred to Trust where there is no intent to sell the property and it’s to be retained within the family. That section applies to me, so when will I receive an amended Statement of Account with a new balance without the stamp duty”

I’ll get it out to you by <date>, or

“You have defied your own legislation that shows an exemption of stamp duty is granted in my circumstances. You stated you were compelled to uphold your State Acts. Why are you now attempting to circumvent your Act, thereby potentially committing an offence? I suggest you comply with and uphold your Duties Act. When can I expect an amended Statement of Account with a new balance without the stamp duty?”

This is how you hold your position. Go above to a Supervisor if you get no satisfaction.

We hope this information was useful and of benefit to you.

Look for the next Trust circular for further insights into practical and exciting applications of the use of your Trust.

Kind Regards

Mark Pytellek
Principal
Private Trust Makers
in conjunction with Solutions Empowerment