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Replace a lost trust deed

We will reconstruct the terms of your trust and put the evidence of them beyond argument.

A trust without its deed still exists. What it loses is the ability to prove its own terms. Banks will not lend to it and buyers will not complete against it. The trustee cannot safely exercise a power it cannot demonstrate it has. The deed is the only record of who may benefit and what the trustee may do. Replacing it is an evidentiary exercise, not a drafting one.

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The trust kept intact

Reconstructing the original terms avoids the resettlement that signing a fresh deed can cause.

Evidence the bank will accept

The reconstruction is documented in the form lenders, purchasers and the ATO actually ask for.

A court order where it is needed

Where the surviving material will not carry it, an order settles the terms beyond further argument.

What happens to a trust when the deed cannot be found?

Losing the deed does not end the trust. The trust continues to exist on the terms the deed set, but nobody can now prove what those terms were. That matters because almost everyone who deals with a trust asks to see its deed. The path back is to establish the terms by evidence. That can mean an executed copy, an unexecuted draft with supporting material, or the recollection of those involved. In the harder cases it means an application to the court.

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Can we just sign a new trust deed?

It is the most common suggestion and usually the most damaging. A deed signed today does not prove what the original said. If it operates as a declaration of a new trust over the same assets, that is a resettlement. It can trigger capital gains tax and duty on everything the trust holds.

What if we only have an unsigned draft?

That is often enough to start with. An unexecuted draft, combined with stamping records, historical tax returns, distribution minutes and correspondence, can establish the terms. The question is whether the material together meets the standard, and that is assessed case by case.

Do we have to go to court?

Not always. Where the surviving evidence is strong, the terms can be established and documented without an application. The court route is for cases where the evidence is thin or where a party is likely to dispute the terms later. An order has the advantage of being final.

Where do lost deeds usually turn up?

With the adviser who prepared it, the accountant who has acted since, or the lender that took security over trust assets. Stamping records held by the state revenue office are also worth checking. A proper search resolves a good number of these before anything else is needed.

Start with what you can still find

Send us whatever survives, even an unsigned draft or an old accountant’s file note. We will tell you what it proves and what else is needed.

The trust still exists, you just cannot prove what it says

You need the deed and it is not where it should be. The bank wants it, or the accountant does, or a sale has stalled on it. The trust is real and the assets are real, but without the document the terms are unproven. That stops the trustee acting with confidence and stops everyone else dealing with it.

We will conduct a proper search before treating the deed as lost.
We will assemble the surviving evidence of the trust's original terms.
We will tell you whether that evidence establishes the terms to the required standard.
We will document the reconstruction in a form banks and the ATO will accept.
We will apply to the court for an order where the evidence will not carry it.

Something has stalled because the deed cannot be produced

The trust was established a long time ago, often by an adviser who has since retired or a firm that has since closed. Nobody noticed the deed was missing, because nobody needed it. Then a bank asks for it on a refinance, or a purchaser’s lawyer asks for it before settlement, and the search begins. The assets are not in doubt. The terms are.

What's included in your lost deed service

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A search of the adviser, accountant, lender and revenue office records.
Assembly and assessment of all surviving evidence of the terms.
A written reconstruction of the trust's terms.
Documentation in a form lenders, purchasers and the ATO will accept.
Advice on the resettlement risk of executing a replacement deed.
A court application where the evidence is not sufficient.

Why a fresh deed is the wrong answer

The instinct when a deed is lost is to have a new one drawn up. That is the one response that can make things materially worse.

A new deed signed today does not record the terms of the original trust. At best it is evidence of nothing. At worst it is a declaration of a new trust over the same assets. That is a resettlement, which disposes of everything the trust holds and brings capital gains tax and duty with it. The original trust’s history, its beneficiary class and its pre-CGT assets can all be lost in the process.

The correct route is slower and much cheaper. It establishes what the original terms were, rather than replacing them.

From a missing document to terms you can prove

We start with a proper search, because deeds turn up more often than people expect. The original adviser’s file, the accountant’s records and the bank that took security are the first places to look. The stamp duty office and the trustee company’s own archive are worth exhausting too.

Where the deed is genuinely gone, we assemble what does survive. An unexecuted draft, a stamped copy, correspondence describing the terms, historical returns and distribution minutes all help. Together they can establish the trust’s terms to the standard required. We then document that reconstruction in a form the bank, the ATO and a purchaser will accept. Where the evidence will not carry it, we advise on an application to the court, which produces an order that settles the question for good.

How we replace a lost deed

Search first, reconstruct from evidence, and never simply re-sign.

Search properly

We exhaust the adviser, accountant, lender and revenue office records before treating the deed as lost.

Reconstruct from evidence

We assemble what survives and assess whether it establishes the original terms to the required standard.

Put it beyond doubt

We document the reconstruction, or apply to the court for an order where the evidence falls short.

Terms established by evidence, not replaced by a new deed

Discovering the deed is missing is usually someone else’s deadline, not yours. A refinance or a settlement is waiting, and the obvious fix is the one that causes the damage.

Two of our lawyers are full members of the Society of Trust and Estate Practitioners. We reconstruct lost trust deeds from the surviving evidence and, where that is not enough, apply to the court for an order establishing the terms. The first thing we will tell you is not to have a new deed drawn up. Signing one can resettle the trust and trigger tax on everything in it.

Our great lawyer guarantee

Six principles we hold to, whatever you bring us and however long it takes.

Take the time

We listen carefully to understand what you want to achieve, then step you through the advice and the documents.

Share our knowledge

We pass on as much as we can, so you can make your own informed decisions.

Stick to our knitting

We only do what we are good at, so you never pay for our learning.

Work as one team

Someone is always available to answer your question or point you the right way.

Fair pricing

A fixed or capped quote for advice and documents, so you do not carry the price risk.

It is your show

We are in it for a front row seat to witness your success, not for our egos.

Get the terms of your trust established

Send us whatever you still have, however incomplete. We will search, work out what the surviving material proves, and tell you what it will take to put the terms beyond doubt.

Speak to a lawyer 1300 654 590