Lost trust deed

Where to Find a Lost Trust Deed

Apr 26, 2022
Reading Time: 7 minutes
Written by Angela Omari

Have you ever been in a situation where you have lost your trust deed?

A trust deed is an important legal document setting out the terms, conditions and powers in a trust relationship and losing it isn’t just inconvenient, but without a trust deed, it will be difficult for your trustee to administer the trust or carry out their tasks. 

That being said, it is a salvageable situation. 

In our latest post, we’ve outlined the best ways to find a lost trust deed and what steps you can take to manage your trust deed in the future, so it doesn’t go missing again.

Importance of a deed

A trust deed is an important legal document that sets out the rules for establishing and operating your funds. 

Still not sure about its importance. Well, it’s essentially the beating heart of any trust relationship setting out the following factors:

  • Objectives of a fund
  • Sets out the rights, powers and obligations of everyone concerned 
  • Who the beneficiaries are
  • How much everyone is to receive 
  • How payments are to be paid, whether it is a lump sum or a steady income

What happens if a trust deed goes missing?

Trustees are almost unable to administer a trust if there is a lost trust deed. Why is this the case? Good question.

Since there are no records of the terms of the trust, the trustee will often be unable to undertake activities such as:

  • Preparing annual trust distribution minutes for tax purposes
  • Dealing with the land titles registry
  • Opening a bank account
  • Obtaining finance

Obtaining finance may be essential for your business’s growth and without your trust deed insight, banks may not allow new trust accounts to be opened.

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Can’t I simply execute a new deed?

Many small business owners ask, ‘Can’t I simply create a new deed if I lose my trust?’

The short answer is that you can. However, creating a new deed will not revive your lost trust deed or its original terms. 

Executing a new trust will create a separate and distinct trust from your original lost trust deed. 

The terms, obligations and objectives of the trust of your lost trust deed will not be copied across to your new trust deed if you create it. Those aren’t the only issues. It may also result in high-income tax and stamp duty implications.

Can your lost trust still operate if your trust deed is missing?

If your trust is missing, technically speaking, you can continue to operate your trust without the physical document present.

However, it’s important to keep in mind that this is a short-term solution. Why? 

If you have a lost deed for an extended time, there is a risk that your trustees’ actions will be open to challenges from third parties.  

Who are these third parties that we speak of? They can include:

All these individuals and government bodies need to be considered as they would have dealings with your lost trust deed.

Early actions to prevent losing a trust deed

When you first create a trust deed, it’s essential that you make multiple copies to minimise the risk of having a lost trust deed down the track. 

It would be best to make digital copies of your trust deed in today’s digital world, but there’s nothing wrong with having physical copies stored away. But it’s important to keep this hard copy in a secure and safe location. 

Other than having your own copy of the trust deed, it would be beneficial to leave a copy of your deed with either your:

  • Lawyers- the law firm could have a copy
  • Financial adviser
  • Any former corporate trustee of the trust

Most lawyers register trust deeds, which can be an excellent way to guard against lost trust deeds.

If you’re thinking of creating a trust deed, why not speak to a Lawpath lawyer today to get started.

Safety measures – Searching

Before considering steps to replace your lost trust deed, it would be good to investigate and attempt to find a copy of the original trust deed.

Here are a few places where your lost trust deed can be found: 

  • Asking third parties if they have a copy – Third parties can include your banker, accountant, lawyer, financial adviser, deed provider or a business partner
  • The land titles registry in New South Wales (NSW) may have a record of the trust deed on title. If it does exist, you will only need to pay a small fee to recover it 
  • You could approach the original drafter of the trust deed to check whether they have a copy of the trust deed. If they don’t have the original copy, they can give you a standard deed, but they will need to a execute statutory declaration confirming that the copy represents the lost deed
  • Ask any beneficiaries about the trust
  • Safes and other storage locations around your property or workplace

      You may be in luck, and a copy of your lost trust deed could be found.

      However, in the unfortunate case that your original deed isn’t found, secondary evidence of your search can be helpful if you become involved in any litigation regarding your trust deed down the track.

      Way around

      Are you at a point now saying, ‘I have searched everywhere but still can’t find my deed; what do I do now?’

      If you are, here are a few next steps you may choose to take depending on your urgency to obtain a replacement deed. Some options to deal with your lost trust deed include:

      1. Court intervention

      The first course of action could be going to the Court (Supreme Court) to confirm the trust deed or provide advice on how to proceed without a trust deed.

      Whether you’re in NSW, Queensland (QLD), VIC or any other state, you can do this.

      If you do choose to use this pathway, here are a few things to know:

      • Section 63 of the Trustee Act 1925 (NSW) allows a trustee to ‘apply to the Court for an opinion or advice
      • The court can offer direction and answer questions regarding the management of a lost trust deed or administration of the trust property
      • It is the safest and least risky option
      • A court Intervention is the safest but will be the most expensive option

      2. Unexecuted copies of the trust deed confirmed by the Court

      If you’re in a position where you can’t find the original trust deed, but you’ve been able to locate an unexecuted or unstamped copy of a deed, the Court can confirm and approve this copy.

      This will then replace your lost trust deed. You will need to show that the copy reflects the original lost trust deed for this to happen.

      For example:

      • Show evidence that your trust was established correctly — including the day it was established, the settlor, the appointors and the beneficiaries
      • The terms of your lost trust deed
      • The assets in the trust fund
      • Evidence of the search you conducted to find the original trust deed

        Again similar to the court intervention, this will not be cheap.

        3. Executing a Deed of Variation

        If you cannot locate your lost trust deed, beneficiaries can agree to a Deed of Variation.

        To put it simply, a Deed of Variation is a legal document that can vary one or more clauses of a previous contractual agreement. 

        If you wish to go down this path, there are a few things to consider, including:

        • The work and cost involved will increase depending on the number of beneficiaries
        • This option will depend on an agreement from the beneficiaries 
        • This option will need to take into account the terms of the original deed 
        • There needs to be sufficient evidence of the terms of the original lost trust deed

        4. Terminating the lost trust deed

        If you’re still unable to find your lost trust deed, you can terminate your deed and create a new one. If you choose this option, here are a few things to consider:

        • You can roll the assets of your lost trust deed to the new trust deed.
        • This option would be relevant for family trusts and self-managed superannuation funds, also known as super-funds (SMSF)
        • The exact terms of the trust deed and objectives may slightly vary from your original trust deed. 
        • This approach can also lead to significant capital gains tax (CGT) and stamp duty liabilities.

        5. Creating a Deed of Confirmation or Restatement

        If you find the original trust deed, it could be possible for you to restate and confirm the terms, conditions and obligations of the original deed.

        Frequently asked questions (FAQs)

        What type of trusts can public and private (Pty Ltd) companies and businesses have?

        It is essential to understand that there are many different types of trusts depending on your circumstances. They include:

        • Discretionary trust deed— A discretionary trust is a trust where the distribution of capital or income of the trust to the beneficiaries of the trust is at the discretion of you, the trustee.
        • Fixed Trusts — Also known as a ‘unit trust’, a fixed trust is where the beneficiaries of the trust have a fixed and defined entitlement under the trust.
        • Family trust — A family trust is a type of discretionary trust. This structure is set up to hold a family’s assets or conduct a family business.

        How do I get a trust deed stamped in NSW?

        You will need to complete a statutory declaration and send it to OSR (Revenue NSW) with your trust deed.

        Once you complete your statutory declaration, you can engage a settlement agent. A settlement agent is an approved client service provider to pay your stamp duty.

        Why are trust deeds stamped?

        All types of trusts (excluding Superannuation Trusts) established in either NSW, NT or Victoria need to be duty stamped. Trust deed stamping officially creates the trust entity.

        What is the difference between a trust deed and a mortgage?

        The difference between a trust deed and a mortgage is that a mortgage only involves two parties: the borrower and the lender. 

        In comparison, a trust deed adds an additional party, a trustee. A trustee holds the home’s title until the loan is repaid.

        What is a trust deed?

        A trust deed is an important legal document that sets out the rules for establishing and operating your funds. 

        Things to consider

        There’s no doubt that misplacing your lost trust deed can be very inconvenient, especially when you need it the most, but it may happen.

        If you’re ever in this situation, it would be beneficial to seek legal advice as soon as possible.

        Hire a lawyer to make this unfortunate situation easier for you by outlining the most cost-effective option for your requirements.

        Find the perfect lawyer to help your business today!

        Get a fixed-fee quote from Australia's largest lawyer marketplace.

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