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    • Family Trust - Update to allow Sole Trustee - $55
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    • Family Trust - Wind up/Vesting - $259
    • Forgiveness of Debt - $121
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    • Partnership Deed - $220
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    • Declaration of Trust (before you buy) - $110
    • Demand and Statement of Claim for Debt - NSW - $88
    • Demand and Summons for Debt - VIC - $88
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    • Div 7A Loan Agreement - $65
    • Div 7A Loan Agreement for UPE - $65
    • Forgiveness of Debt - $121
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    • Director‘s Indemnity Agreement - Compulsory Insurance - $197
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  • All documents

    All documents

    • Acknowledgement of Trust (already own asset) - $165
    • Adopt Committee Recommendations kit - $33
    • Advanced Legal Health Check for Businesses - $18
    • Appoint a Committee kit - $33
    • Appoint an Alternate Director kit - $33
    • Appoint Managing Director & Confer Powers kit - $33
    • Buy a House with Friends Agreement - $110
    • Change Appointor and/or Guardian of Family Trust - $110
    • Change of Name of Family Trust - $110
    • Change Registered Office kit - $33
    • Change Trustee of Family Trust - $110
    • Codicil to change the Executor - $99
    • Commercial Lease - $275
    • Company (ELodgement) - $716
    • Company (No Elodgement) - $99
    • Company Constitution Update - $99
    • Confidentiality Agreement (Non Disclosure) - $99
    • Co-Owners Agreement - $110
    • CPD Webinar - Tax and Cryptocurrency – A Square Peg in a Round Hole - $110
    • CPD Webinar - Unlocking Microsoft 365 Copilot - $110
    • CPD Webinar - UPEs and Div 7A – Implications of the Recent Bendel Decision - $110
    • CPD Webinar - When Directors are Personally Liable - $110
    • Dealing with Forgiven Debts (White Paper) - $55
    • Debt Recognition (including pre-Div 7A Loans) - $33
    • Declaration of Trust (before you buy) - $110
    • Demand and Statement of Claim for Debt - NSW - $88
    • Demand and Summons for Debt - VIC - $88
    • Demand and Summons for Debt - WA - $88
    • Derivative Risk Statement for SMSF - $65
    • Director‘s Indemnity Agreement - Compulsory Insurance - $197
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    • Disclaimer - Email - $55
    • Div 7A Loan Agreement - $65
    • Div 7A Loan Agreement for UPE - $65
    • Employment - Conduct Issues Letter - $33
    • Employment - Employee Expenses Policy - $55
    • Employment - Performance Issues Letter - $33
    • Employment - Request for Medical Information - $33
    • Employment - Termination Letter - $33
    • Employment - Transferring Employee Letter - $33
    • Employment Contract - $120
    • Enduring Power of Attorney - NSW - $55
    • Enduring Power of Attorney - SA - $55
    • Enduring Power of Attorney - WA - $55
    • Enduring Power of Attorney (Financial, Personal/Health) - QLD - $55
    • Enduring Power of Guardianship - NSW - $55
    • Enduring Power of Guardianship - WA - $55
    • Family Trust - $165
    • Family Trust - Streaming & Bamford Update - $165
    • Family Trust - Update to Allow Change of Appointor and Guardian - $165
    • Family Trust - Update to allow Sole Trustee - $55
    • Family Trust - Update to Exclude Foreign Persons (NSW) - $198
    • Family Trust - Wind up/Vesting - $259
    • Forgiveness of Debt - $121
    • Independent Contractors Agreement - $110
    • Investment Strategy for Self Managed Super 15/16 - $65
    • Investment Strategy for Self Managed Super 16/17 - $65
    • Investment Strategy for Self Managed Super 17/18 - $65
    • Investment Strategy for Self Managed Super 18/19 - $65
    • Investment Strategy for Self Managed Super 19/20 - $65
    • Investment Strategy for Self Managed Super 20/21 - $65
    • Investment Strategy for Self Managed Super 21/22 - $65
    • Investment Strategy for Self Managed Super 22/23 - $65
    • Investment Strategy for Self Managed Super 23/24 - $65
    • Investment Strategy for Self Managed Super 24/25 - $65
    • Loan Agreement (No Security) - $110
    • Minutes for Members to Inspect Books - $33
    • Minutes for Resigning Director - $33
    • Opening Minutes for the Unit Trust - $33
    • Partnership Deed - $220
    • Pension Pack for Self Managed Super - $299
    • Power Of Attorney By Company - $99
    • Product Disclosure Statement (general) - $66
    • Product Disclosure Statement (Pension only) - $99
    • Release of Unpaid Trust Entitlement - $121
    • Remove a Managing Director kit - $33
    • Remove and Replace a Director kit - $44
    • Replace Company Secretary kit - $44
    • Self Managed Superannuation Fund Deed - $165
    • SMSF - Minute to Appoint Administrator - $33
    • SMSF - Minute to Appoint an Auditor - $33
    • SMSF - Minute to Approve Financial Statements - $33
    • SMSF - Minute to Insure The Members - $33
    • SMSF - Update Rules - $165
    • SMSF Limited Recourse Borrowing Arrangement - $330
    • SMSF Restricted Commercial Property Assessment - $695
    • SMSF Restricted Residential Property Assessment - $315
    • Statutory Declaration - $0
    • The new small business restructure roll-over rules in practice (White Paper) - $55
    • Transfer of Shares Kit - $0
    • Trust Distribution Minutes Library for 2008/09 - $99
    • Trust Distribution Minutes Library for 2009/10 - $99
    • Trust Distribution Minutes Library for 2010/11 - $99
    • Trust Distribution Minutes Library for 2011/12 - $99
    • Trust Distribution Minutes Library for 2012/13 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2012/13 - Single-Use - $110
    • Trust Distribution Minutes Library for 2013/14 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2013/14 - Single-Use - $110
    • Trust Distribution Minutes Library for 2014/15 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2014/15 - Single-Use - $110
    • Trust Distribution Minutes Library for 2015/16 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2015/16 - Single-Use - $110
    • Trust Distribution Minutes Library for 2016/17 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2016/17 - Single-Use - $110
    • Trust Distribution Minutes Library for 2017/18 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2017/18 - Single-Use - $110
    • Trust Distribution Minutes Library for 2018/19 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2018/19 - Single-Use - $110
    • Trust Distribution Minutes Library for 2019/20 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2019/20 - Single-Use - $121
    • Trust Distribution Minutes Library for 2020/21 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2020/21 - Single-Use - $121
    • Trust Distribution Minutes Library for 2021/22 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2021/22 - Single-Use - $121
    • Trust Distribution Minutes Library for 2022/23 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2022/23 - Single-Use - $132
    • Trust Distribution Minutes Library for 2023/24 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2023/24 - Single-Use - $132
    • Trust Distribution Minutes Library for 2024/25 - Multi-Use - $363
    • Trust Distribution Minutes Library for 2024/25 - Single-Use - $132
    • Unit Trust - $165
    • Unit Trust - Add New Member Kit - $110
    • Webinar On Demand - Foreign Trust Taxation Issues - $110
    • Webinar On Demand - Advising on Family Trusts in the 21st Century - $110
    • Webinar On Demand - AI in Professional Practices - Risks and Benefits - $110
    • Webinar On Demand - Drafting Estate Planning Documents to meet Litigation Risks - $110
    • Webinar On Demand - Employee Share Schemes - $99
    • Webinar On Demand - End Of Financial Year SMSF Planning 2025 - $110
    • Webinar On Demand - End Of Financial Year Tax Rollup 2025 - $110
    • Webinar On Demand - Family Law and Trusts - $110
    • Webinar On Demand - How Binding are Financial Agreements - $110
    • Webinar On Demand - Professional Advisers as Appointor of their Client’s Family Trust - $110
    • Webinar On Demand - Recent Changes in Family Law - $99
    • Webinar On Demand - Sexual Harassment Laws in Australia - $110
    • Webinar On Demand - Small Business Restructures and Director Penalty Notices - $110
    • Webinar On Demand - Tax & Family Trusts - $99
    • Webinar On Demand - Testamentary Trusts 101 - $110
    • Webinar On Demand - Trust Distributions and Section 100A - $99
    • Webinar On Demand - When Directors are Personally Liable - $110
    • Webinar On Demand - Where Death Benefit Nominations Go Wrong - $110
    • Will - Married or Defacto No Children - $95
    • Will - Married or Defacto with Children - $95
    • Will - Single No Children - $110
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Print Version Back

Bankruptcy and the Family Home

Issue: 574 - Thursday, 3 February 2022

In this Issue

  1. Bankruptcy and the Family Home

1. Bankruptcy and the Family Home

Shannon O’Connor
Senior Manager,
Restructuring and Recovery, RSM Australia

One of the main concerns a person has when becoming bankrupt is “what will happen to the family home?”

In accordance with Section 58 of the Bankruptcy Act 1966, the property of a bankrupt vests in the Trustee. The definition of property extends to the family home, including those owned jointly with a non-bankrupt spouse.

The Trustee will assess the bankrupt estate’s interest in the property, including:

  • Obtaining a valuation and/or market appraisal for the property.
  • Confirming the validity and value of any encumbrances e.g. mortgages, caveats.
  • Considering the contributions made to the property by the bankrupt, the non-bankrupt spouse and any other party.

If the Trustee has established that there is equity in the family home, they will usually write to the non-bankrupt spouse (regardless of whether they are a co-owner or not) and invite them to put forward a proposal to acquire the bankrupt estate’s share of the property.

At this point, it is suggested that the non-bankrupt spouse seek their own separate advice as to the implications of making such an offer.

When deciding whether to accept an offer, the Trustee will consider the amount they could receive if the property were placed on the open market for sale.

If the trustee believes that the offer is not appropriate in the circumstances, they do not need to accept the offer.

If no agreement can be reached between the Trustee and the non-bankrupt spouse, the Trustee can apply to the Court for the power to sell the property.

The Trustee would then distribute the net sale proceeds to the bankrupt estate and any co-owners. In practice, Trustees will usually prefer to reach an agreement with the non-bankrupt spouse as this normally results in the best possible outcome for all stakeholders.

The Trustee may also make a claim to the property because of:

  • Transfers of property made before bankruptcy from the bankrupt to other parties for consideration less than market value (“natural love and affection” is not a consideration).
  • Contributions made by a bankrupt to property not registered in their name.

In El-Debel v Micheletto (Trustee) [2021] FCAFC 117, the Full Federal Court upheld a claim by the Trustee that properties registered in the names of related entities were held on resulting trust for the bankrupt.

Bankruptcy and the family home … and Family Law

If the Trustee is interested in a Family Law proceeding insofar as there are vested assets, for example equity in the family home, the Trustee may decide to become a party to the proceeding, but they are not required to. The proceeding remains between the non-bankrupt spouse and the bankrupt, but the bankrupt is now limited to dealing with the non-vested assets e.g. superannuation.

Often the Trustee will separately reach an agreement with the non-bankrupt spouse regarding the family home.

This agreement will be incorporated into any orders made between the parties. In these circumstances, the Family Court will usually ask for a letter from the Trustee to confirm they are satisfied with the orders being made.

For Further information, contact RSM here.

Disclaimer: The content of this Bulletin is general information only. It is not legal advice. Law Central recommends you seek professional advice before taking any action based on the content of this Bulletin.

Related documents:

  • Director’s Indemnity Agreement - Compulsory Insurance
  • Director’s Indemnity Agreement - No Insurance
  • Company (ELodgement)
  • Family Trust

Related webinars:

  • Webinar On Demand - Introduction to Family Trusts - the basics


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