Can You Leave Trust Assets in Your Will? What Every Farming and Family Business Should Understand.

By Symmetry Accounting and Tax, Perth

In the agricultural and family business sectors across Australia, it’s not uncommon for key assets—like landholdings, equipment, livestock, investment properties, shares, and commercial buildings—to be owned through discretionary trusts rather than held in an individual’s personal name. These trusts are often established to provide long-term protection, assist with tax planning, and ensure that family wealth is preserved across generations.

But when it comes time to prepare a Will, many business owners mistakenly believe they can simply distribute trust-held assets among their beneficiaries. This is a costly misconception.

Why Your Will Can’t Deal with Trust-Owned Assets

Legally, a Will only governs property that you personally own at the time of your passing. Assets held in a discretionary trust fall outside your personal estate, meaning your Will has no authority over them.

This issue has led to disputes and disappointment—particularly among families who’ve relied on basic Will templates or online services and didn’t receive specialised advice.

One case before the NSW Supreme Court in 2008 made this clear: even though the deceased had complete control over the trust, the court determined she had no legal ownership of the trust’s assets. As a result, her attempt to allocate them through her Will failed.

The takeaway is simple: control over a trust doesn’t equal ownership. And without ownership, you can’t gift those assets in your Will.

What Options Are Available?

Although you can’t directly gift trust assets through your Will, there are legal strategies to ensure your intentions are respected and your trust continues to operate according to your wishes:

✅ Appointing a Successor to Control the Trust

Many trust deeds allow the person creating their Will (who is often also the trust’s appointor or guardian) to name a successor who will assume control after their death. While this successor won’t automatically own the trust’s assets, they will have significant influence over how those assets are managed and distributed.

By nominating future decision-makers—such as a new appointor, guardian, trustee, or corporate trustee director—you can help guide the direction of the trust without overstepping legal boundaries. This succession of control ensures the trust remains in capable hands and continues to serve the next generation according to your vision.

❌ Attempting to Direct Trust Distributions in Your Will

It’s critical to understand that you cannot use your Will to instruct the trustee of a discretionary trust to make specific distributions to named beneficiaries. Trustees operate within the rules of the trust deed and maintain broad discretion to decide who benefits, when, and to what extent.

Trying to impose conditions in your Will on how a trustee should allocate assets usually won’t hold legal weight and could be ignored as an invalid direction. Rather than attempting to impose control through your Will, your focus should remain on ensuring the right people are put in charge of the trust after your passing.

While there are more advanced strategies that may limit a trustee’s discretion, these require thorough legal and tax planning to ensure they are valid and don’t trigger unintended consequences.

✅ Gifting Personal Entitlements from the Trust

There is one category of trust-related interest that can be passed on through a Will: any outstanding loan accounts or unpaid present entitlements (UPEs) that the trust owes to the Will maker.

UPEs arise when income or capital has been allocated to you by the trust but hasn’t yet been distributed. Similarly, loan accounts represent money you've lent to the trust over time. Since these are legally recognised debts owed to you personally, they form part of your estate and can be gifted to your beneficiaries in your Will.

This provides a practical way to pass on financial value linked to a trust, without interfering with the ownership of trust assets or the trustee’s discretion.

The Bottom Line

If you’re a farmer or business owner using trust structures, it’s essential to recognise the legal limits of what your Will can do. While you can’t bequeath trust assets outright, you can influence the future of your trust by:

• Carefully planning for succession of control,

• Avoiding overreaching directions in your Will,

• And making sure your personal entitlements tied to the trust are properly accounted for in your estate plan.

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At Symmetry Accounting and Tax, we work with farming families and business owners throughout Perth and regional WA to build estate plans that reflect your unique circumstances and preserve your legacy across generations. Contact us today to ensure your trust structures are aligned with your Will and your long-term intentions.