Testamentary Trust Commsec issues - Please assist!

[sarahF]

Hi All,

I am due to receive quite a large amount of shares from my late fathers estate however I have come into great difficulty establishing an Testamentary Trust account with CommSec.

Unfortunately, CommSec rejected my application due to my name not being on Probate. However, the Probate does list my name as an executor and has a provision to come in to prove the same(As displayed in pic below).




As My Sister has quite a lot of experience with shares, we decided it best she manage the administration side of the our fathers estate hence why I didn't lodge the probate also. Our fathers solicitor advised this was quite ok.

Our father left instructions in his Will for two testamentary trusts to be established or if we decided we could choose to have our inheretance distributed directly to each of us. I decided to use a testamentary trust and my sister decided against a trust.

Unfortunatly, due to commsec rejecting my application due to the probate my inheretence is still in my late fathers estate and my sister has had her entire inheritance already issued to her. I did have our solicitor discuss the instructions of the will with the CommSec representative I had been dealing with however he did not seem to have any success. The commSec representative advised me for my trust to be established that I would need to be on the probate and also my sister would need to be listed as a trustee of my testamentary trust(we are both in our 60s). Unfortunatly, I am not getting the best guidence from our appointed solicitor managing the estate and feel he did not pursue my application to the commsec deceased estate department. He is now pushing me into establishing another type of trust which will cost approx $5000 . I am not satisified with his response and said I will not be establishing a new type of trust as my dads wishes was for me to have a testamentary trust to protect myself and my 3 adult children.

Please note, I have successfully established a testamentary bank account, have registered my testamentary trust with the ATO and obtained an ABN and TFN listing myself as the sole trustee.

1. Can you please advise if I do need to be on the Probate to establish the testamentary trust? Should I lodge a double probate of some kind?

2. Does my sister have to be listed as a trustee of my testamentary trust if my late father did not specify this as a requirement in his will?

I am hoping to gain some advice from others who may have knowledge or have also experienced similar issues.

Thank you kindly,
Sarah

 

[pixel]

Hi All,

I am due to receive quite a large amount of shares from my late fathers estate however I have come into great difficulty establishing an Testamentary Trust account with CommSec.

Unfortunately, CommSec rejected my application due to my name not being on Probate. However, the Probate does list my name as an executor and has a provision to come in to prove the same(As displayed in pic below).

View attachment 69134


As My Sister has quite a lot of experience with shares, we decided it best she manage the administration side of the our fathers estate hence why I didn't lodge the probate also. Our fathers solicitor advised this was quite ok.

Our father left instructions in his Will for two testamentary trusts to be established or if we decided we could choose to have our inheretance distributed directly to each of us. I decided to use a testamentary trust and my sister decided against a trust.

Unfortunatly, due to commsec rejecting my application due to the probate my inheretence is still in my late fathers estate and my sister has had her entire inheritance already issued to her. I did have our solicitor discuss the instructions of the will with the CommSec representative I had been dealing with however he did not seem to have any success. The commSec representative advised me for my trust to be established that I would need to be on the probate and also my sister would need to be listed as a trustee of my testamentary trust(we are both in our 60s). Unfortunatly, I am not getting the best guidence from our appointed solicitor managing the estate and feel he did not pursue my application to the commsec deceased estate department. He is now pushing me into establishing another type of trust which will cost approx $5000 . I am not satisified with his response and said I will not be establishing a new type of trust as my dads wishes was for me to have a testamentary trust to protect myself and my 3 adult children.

Please note, I have successfully established a testamentary bank account, have registered my testamentary trust with the ATO and obtained an ABN and TFN listing myself as the sole trustee.

1. Can you please advise if I do need to be on the Probate to establish the testamentary trust? Should I lodge a double probate of some kind?

2. Does my sister have to be listed as a trustee of my testamentary trust if my late father did not specify this as a requirement in his will?

I am hoping to gain some advice from others who may have knowledge or have also experienced similar issues.

Thank you kindly,
Sarah

Hi Sarah,
As I'm not an expert in testamentary trusts, I can't answer directly to your 1. and 2., but consider this:

Is CommSec the only broker in Town?

If I were in your position and found Commsec too hard to deal with, I'd phone around and see if someone else is more accommodating. ANZ, NAB, Westpac are names that come to mind. (I've been with the latter for close to 20 years and in various configurations and setups. Never any problem.)

 

[Creaky Bones]

Hi All,

I am due to receive quite a large amount of shares from my late fathers estate however I have come into great difficulty establishing an Testamentary Trust account with CommSec.

Unfortunately, CommSec rejected my application due to my name not being on Probate. However, the Probate does list my name as an executor and has a provision to come in to prove the same(As displayed in pic below).

View attachment 69134

....

1. Can you please advise if I do need to be on the Probate to establish the testamentary trust? Should I lodge a double probate of some kind?

2. Does my sister have to be listed as a trustee of my testamentary trust if my late father did not specify this as a requirement in his will?

I am hoping to gain some advice from others who may have knowledge or have also experienced similar issues.

Thank you kindly,
Sarah

Hi Sarah,
Sorry to hear about your loss. Probates are never fun.

Firstly, I am not a lawyer and this is not legal advice and the information below may be incorrect depending on your legal jurisdiction. Probate is a legal document issued by the Supreme court with the named persons having legal authority to act. The named persons is the person listed on the front page usually on the right hand side.

From what you have provided i.e. you did not lodge the probate, you are not a named person and have no legal standing. Your sister did and has legal standing as executor. The provision in the will which is attached and forms part of the probate document which you have included above in the image gives you reserved "leave" to become executor. This clause means you have the right to lodge a probate and become executor. It does not mean you are an executor with legal authority under this issued probate.

Commsec interpretation of the probate appears correct.

Given the above, your sister is the person with legal authority and can establish the trust. Once the trust is established it is up to you and your sister to decide who shall remain involved and in control of the trust.

Also it is an option to go to the Supreme court and have the probate issued in both of your names giving you legal authority. Interesting the lawyer did not have both of you on the probate from the beginning. Joint executors are common.

Possibly the lowest cost path is to for you and your sister (required due to legal standing) approach another broker or Commsec together and discuss the options.

I would also suggest seeing a competent accountant (together with your sister) with regards to trusts, finances and shares. They are the experts in establishing trusts and moving shares around and dealing with Commsec.

Good luck,

Regards,

Creaky