Parent to child loan agreements and wealth protection

Commonly asked questions about parent to child loans:

It is important to bear in mind the possibility of your child’s relationship breakdown or bankruptcy. In the context of a relationship breakdown, a failure to document a parent to child loan correctly can have severe consequences for both you and your child. For example, a gift made by you to your child could be viewed as an asset of your child’s relationship, and divided between your child and their spouse or partner.

Federal and state courts can view a parent to child loan as a resource of the child to be taken into account when the court divides the other assets. The particular terms of the loan agreement will affect the likelihood of the court viewing the loan as an asset of the relationship or a financial resource of the child.

If your child receives a loan from you and then becomes bankrupt, then failing to take security over your child’s assets may mean that other creditors get paid before you do.

You should also think about how the loan to your child fits into your overall estate plan. Although loan agreements will usually state that the loan is repayable on death, the following should nevertheless be considered:

  • Will you forgive the debt in your will and compensate your other children accordingly?
  • What will you do if your child passes away before you do, potentially leaving a spouse/partner and/or children who are unable to repay the loan? Having security over your child’s assets would give you the flexibility to recall the loan immediately or at a later date.
  • Similarly, if the loan was invested in your child’s superannuation fund, you may find it hard to obtain repayment unless you have security over your child’s assets, such as real estate.

Where there is a risk of the child going bankrupt or suffering a relationship breakdown, or where you require flexibility in the case of either you or your child passing away, the following options should be considered:

  • Loans should be acknowledged by both your child and their spouse/partner and at least annually the child should make repayments of the principal or pay interest.
  • You should consider taking security over the loan, such as a mortgage over real estate.
  • You should review your estate planning documents to ensure that they put into effect your intentions in relation to the loan.
  • Your executors and attorneys should be alerted to the existence of the loan and your intentions concerning whether the loan is to be forgiven or repaid.
  • You should seek specific taxation advice before entering into a loan agreement.

If there is a dispute in the future, it will generally be the parent who has to prove that the loan was not a gift. An appropriately drafted loan agreement can help resolve disputes and help to prevent them from occurring. Your Stacks lawyer will be able to assist you with creating a loan agreement that protects both parties financially.

Our experts

Latest from Stacks

illegal building works, unapproved works, illegal structure, property, building, buyer, purchase, seller, local council, council, consent, compliant, regulations, environment, planning, safety standard, neighbour, boundary, approval, strata scheme, owners corporation, DA, development application, Complying Development Certificate, CDC, BASIX, exempt development, complying development, home extension, structure, certification, modification, rescind, completed works
31 Oct 2024
Illegal building works create obstacles in property transactions Property prices have soared in recent years, making real estate one of the most significant investments that most ...
Read the full story
16-year-olds vote, 17-year-olds, vote, voter, voting, teenager, parliament, election, law, discrimination, youth, young people, right to vote, Make It 16, no taxation without representation, enrolment, disenfranchised, policy
16 Oct 2024
For the first time, 16-year-olds in Europe were allowed to vote in the June 2024 election for the European parliament, and they turned out in droves. Where can 16-year-olds vote?...
Read the full story
bankrupt, bankruptcy, insolvency, trustee, bankruptcy trustee, debt, asset, investment, creditor, Bankruptcy Act, AFSA, Australian Financial Services Authority, creditor's petition, statement of claim, bankruptcy notice
10 Oct 2024
Bankruptcy a formal option to provide relief from creditors I am drowning in debt. I can’t possibly meet all the bills that have piled up. My business was hit by Covid ...
Read the full story

Why Stacks Law Firm

What makes Stacks different and why you should choose us.

Stacks is the steady hand you can trust, the lawyers you know. The ones who care about where you’re from, what you’re going through and who treat you like a person, not just another case.

With the attention of one lawyer, backed by the expertise of many, we’re the only legal provider in Australia that gives businesses and everyday people access to expert legal services through a network of reputable local offices.

Legal challenges can feel confusing, even intimidating, but we know what you’re going through, we know the legal terrain, we view your case individually, and we can offer the care, reassurance and expertise to guide you every step of the way.

Get in Touch


No hidden fees
We’ll always be honest and upfront. We’ll look you straight in the eye and agree on a plan before moving forward.

Deep expertise
We know the ropes and our professionals have expertise specific to every legal situation—many are Accredited Specialists.

Practical advice not legalese
We speak clearly and directly, so you understand our advice and can make decisions with confidence.

Network of local offices
We’re local to wherever you are, and our offices are owned and operated by friendly, local professionals, proud of their communities.

Real client care
We genuinely care about our clients. It’s the core of who we are and has been since the first practice was opened by ER Stack on the NSW Mid-North Coast in 1931.

Progressive practise
We make the process easy for you with the latest tech to keep services cost effective—and you in control.



We’ll always be honest and upfront. We’ll look you straight in the eye and agree on a plan before moving forward.
We know the ropes and our professionals have expertise specific to every legal situation—many are Accredited Specialists.
We speak clearly and directly, so you understand our advice and can make decisions with confidence.
We’re local to wherever you are, and our offices are owned and operated by friendly, local professionals, proud of their communities.
We genuinely care about our clients. It’s the core of who we are and has been since the first practice was opened by ER Stack on the NSW Mid-North Coast in 1931.
We make the process easy for you with the latest tech to keep services cost effective—and you in control.

WE’RE HERE TO HELP

Complete the form to contact us today

We’re here to listen to your story anytime. We can help you understand how things work, give you confidence and guide you through your options. We’ll be honest and upfront, agreeing on what you need and how much it will cost. Your enquiry is completely confidential.

chat button

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy