In your quieter reflective moments,
the thought may cross your mind about buying or giving property now to your
children, or even skipping a generation and buying property now directly in the
name of your grandchildren.
If this is you, lay down immediately
until the feeling passes.
Seriously though, isn’t it better to
give now with a warm hand rather than a cold hand.
Why not leave all of these assets
you are acquiring as a very successful property investor to your children or
grandchildren while you are alive.
Doesn’t this notion appeal to you
more than passing it to them in your Will decades down the track.
Well, that might have all of the
appearances of a good idea, but let me explain to you why it is not.
The
Fundamentals
To dispel any doubts you may have
about this issue, let me assure you that it is legal to buy a property in a
minor’s name (someone under the age of 18).
The Titles Office simply notes on
the Title Deed that the owner of the property is for example “London Glenister,
a minor born on 5 March 2010.”
When London Glenister turns 18, all
you need to do is produce a birth certificate to the Titles Office, together
with evidence that she is still alive, and they will simply register a
Departmental Dealing over the property and remove the words “a minor born on 5
March 2010.”
To her in 2028, this will be just
like winning the Lotto. No stamp duty, GST or capital gains tax payable
at all. Wow.
But the downside is that this
property cannot be sold, mortgaged or dealt with in any way until this child
reaches the age of 18 without a Court’s approval (an expensive process and
unlikely to succeed).
For those of us who have had a few
runs around the block and raised children, you will know all too well that when
this kid turns 18 she is more than likely to unleash her new financial power by
spending on alcohol, designer clothes and a new car.
So,
you’ll soon realise that this wasn’t such a bright idea after all
What if you come up with a bright
idea and say to yourself “Ok, I will buy the property in my name as Trustee for
this child.”
This trust arrangement could be set
up so that you could provide in writing that instead of the property vesting in
her at the tender age of 18, she receives it at the more respectable age of 21
when at least she might spend the money on overseas travel.
You comfort yourself with the
thought that “I can still deal with the property without getting a Court’s
approval because I control the property as her Trustee.”
You ring your family solicitor and
he asks “Did you know though, that when your girl turns 21 you will have to pay
the full rate of stamp duty (based on the property value in 21 years time) to
transfer it into her name solely.”
“And I bet”, he says “The ATO puts
their hand out for tax on the capital gain on the property over the last 21
years.”
You sleep on the solicitors comments
overnight and next day you ring your Accountant for a second opinion on the
capital gains tax issue (because everyone knows that Accountants are a lot
smarter at tax that Solicitors).
She comes up with the brainwave that
your idea about buying and holding the property for 21 years is a good one but
suggests that you finesse it by simply appointing a new trustee of the property
in place of yourself when London Glenister turns 21.
The new Trustee can be a company in
which she is the sole Director and Shareholder.
Presto,
the problem is solved.
You have now transferred not
ownership, but control in this property to an entity, namely a new company
controlled by your precious girl without attracting any stamp duty, GST or
Capital Gains Tax and the reason is that there has been no change in the beneficial
ownership of the property.
The property is still held or owned
for the benefit of your princess. It is just that there is now a new Trustee in
control of the property. Not quite as good as transferring it totally
into her name.
But think of it this way, you have
taught her about asset protection at a very early age.
That is, own nothing but control
everything through a company/trust structure.
Setting her up at 21 years of age
with a property that she does not own, but controls still makes her a wealthy
woman but puts a firewall between her and those greedy people wanting to “have
a go”.
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