Testamentary vs. Discretionary Trusts:

Are You Choosing Wisely? | Estate Lawyers Gold Coast

In estate planning, choosing between discretionary trusts or testamentary trust in your will can significantly impact how your assets are managed and distributed. Let’s explore the key differences between these two trust types to help you make an informed decision.

Testamentary Trusts in Australia:

  • When to Choose: Testamentary trusts are ideal when you want precise control over asset distribution, especially for specific beneficiaries like minors or those with special needs. They are established through a valid Will and come into effect after the Will-maker passes away.
  • Control: Testamentary trusts offer fixed beneficiary entitlements, ensuring assets go to designated individuals according to the Will-maker's wishes.
  • Testamentary Trust Benefits: They provide asset protection from bankruptcy, family law proceedings, and remarriage complications. Additionally, they offer tax savings and safeguard beneficiaries who may struggle with financial management.
  • Testamentary Trust Disadvantages: Testamentary trusts require probate, which can delay asset distribution. They also involve ongoing costs and paperwork.

Discretionary Trusts in Australia:

  • When to Choose: Discretionary trusts are recommended when flexibility in asset distribution is desired, or when circumstances may change over time. They can be established during the Will-maker's lifetime and continue after their death.
  • Control: Discretionary trusts grant Trustees the authority to adapt asset distribution based on beneficiaries' changing needs or circumstances.
  • Discretionary Trust Benefits: They offer flexibility to respond to changing family dynamics or financial situations. Trustees can adjust distributions to best serve beneficiaries' interests.
  • Discretionary Trusts Disadvantages: Discretionary trusts may require careful management to ensure distributions align with beneficiaries' needs. They also involve administrative costs and complexities.

Which Is Right for You?

  • Consider Testamentary Trusts If: You prioritise precise control over asset distribution and have specific beneficiaries in mind.
  • Consider Discretionary Trusts If: You value flexibility in asset management and want to adapt distributions to changing circumstances.
  • Seek Expert Advice: Given the nuances of each trust type, consulting with legal and financial professionals is crucial to determine the best option for your estate planning needs.


Testamentary trusts provide clarity with fixed beneficiary entitlements and strict control, whereas discretionary trusts offer adaptability to accommodate evolving circumstances. Having a grasp of these distinctions is essential for crafting an estate plan that aligns with your objectives.

For personalised guidance tailored to your specific needs, HTW Legal offers complimentary consultations. Take advantage of this opportunity to discuss your estate planning goals and explore the best approach for your situation. Schedule your free consultation with HTW Legal today.


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The posts in this blog are published as general information only. They are not intended to nor do they constitute legal advice. HTW Legal Group strives at all times to provide users with accurate information but we do not guarantee that the information contained in this blog reflects accurately current law or procedure.

You should not act or refrain from acting in any matter based upon the information contained in this blog without first seeking the advice of a lawyer who practices in the area of law related to your matter. Do not hesitate to contact HTW Legal Group to make an appointment with one of our team of experienced lawyers to obtain advice tailored to your personal situation.