What happens if I pass away without a Will?

Posted on March 15, 2013 by Kenneth Ti

Unfortunately if you pass away without a Will, nobody will know how you wanted your assets divided and who you wanted to entrust the job of carrying out your wishes.

The legal terminology for this situation is “intestacy”. Under the Succession Act 2006 (NSW) what happens is that your assets will be distributed according to a pre-determined order. Certain family members, such as your spouse, will have priority, but for the most part the assets will likely be distributed in a manner which you may not have intended.

Passing away while not having a Will can result in your loved ones going through unnecessary hardship and stress. If you are in a de facto or same sex relationship, your partner will also need to convince the court that the two of you indeed have a relationship.

In addition to this, if the court is unable to determine if you have any relatives or cannot locate any of your relatives, they may end up receiving your estate. While this does not happen often, it is still a possibility.

At the end of the day however, your final wishes really should be documented and made clear for the ones you leave behin.

Want to know more about estate and succession planning?

For more information regarding our estates and succession planning services, including will preparation, powers of attorney, enduring guardianship, obtaining probate or letters of administration, and managing deceased estates, please use the quick enquiry form found on this page or call our office on 02 9687 8885. Our experienced estates lawyers look forward to assisting you with your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, deceased estate, defacto, dying, family, Financial Planning, intestate, legal, Letters of Administration, passing away, same sex, spouse, state, succession act, will, Will Drafting, Wills & Probate

What happens if I pass away without a Will?

Posted on March 15, 2013 by Kenneth Ti

Unfortunately if you pass away without a Will, nobody will know how you wanted your assets divided and who you wanted to entrust the job of carrying out your wishes.

not have intended.

At the end of the day however, your final wishes really should be documented and made clear for the ones you leave behin.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, buy, defacto, dying, family, intestate, legal, passing away, same sex, spouse, state, succession act, will, Wills & Probate

The super fund pension exemption extended after death of recipient

Posted on January 15, 2013 by Alex Mineeff

The government has introduced changes to the law to ensure that a super fund’s investment earnings that were supporting

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a pension will continue to be tax exempt, following the death of the pension recipient, until the benefits are paid out of the fund – as long as the benefits are paid out as soon as practicable.

The measure will apply to the 2012/13 and later income years.

Clients with a self managed super fund (SMSF) may be aware that, if the fund pays a pension, income from the assets supporting the pension can be exempt from tax (the ‘pension exemption’). However,

if the pension ceases, this generally means that the pension exemption also ceases.

For more information

For more information regarding this article or its contents, please contact Alex Mineeff from Taxable Accounting on 02 8883 4016.

Alex Mineeff formed Taxable Accounting, to provide professional accounting, taxation, auditing services to individuals and small businesses. Alex is a Certified Practising Accountant (CPA), registered auditor, and is a member of a number of professional bodies, including Australian Society of CPA's, National Taxation & Accountants Association, and the Taxpayers Association. Alex is also an active member of both the Rotary Club of Norwest Sunrise and the Hills Chamber of Commerce.

Alex Mineeff
Taxable Accounting
208A/Level 2
Skycity, 20 Lexington Drive
Bella Vista NSW (Norwest Business Park) 2153

Telephone: 02 8883 4016
Facsimile: 02 8824 5274
Web: www.taxableaccounting.com.au

Tags: assets, death, will, Wills & Probate

ATO urges caution with SMSF property investments

Posted on December 1, 2012 by Alex Mineeff

The ATO has warned trustees of self-managed superannuation funds (SMSFs) to be cautious when investing in property.

The ATO is concerned that people are using their SMSFs to invest in property without fully understanding their obligations under the law, or that some people are seeking to take advantage of certain types of arrangements.

The ATO is primarily concerned with arrangements where:

an SMSF invests in a related unit trust by acquiring units in the trust, and the unit trust acquires property, but the arrangement breaches the superannuation compliance rules in some way, such as where the property is subjected to a mortgage, or is acquired from or rented to a related party, when it would otherwise be prohibited; and
an SMSF enters into a Limited Recourse Borrowing Arrangement (LRBA) to acquire an asset, and the arrangement does not comply with the strict conditions that must be met for SMSFs that borrow.

In particular, these borrowings must generally be used to acquire a single asset (that the fund is not otherwise prohibited from acquiring; e.g., SMSFs are prohibited from acquiring residential property from a related party), and the asset acquired cannot be held directly by the SMSF but must be held by a separate ‘holding trustee’ (or ‘custodian’), solely for the benefit of the SMSF.

The ATO has also stated that:

the trustee of the holding trust must be in existence, and the holding trust must be established, by the time the contract to acquire the asset is signed; and
the SMSF cannot borrow to acquire a vacant block of land and then use the same borrowing to construct a house on the land.

According to the ATO: “The fine details are important and trustees need to be sure that property is the right investment for their SMSF and that the arrangement is legal.”

“Some of these arrangements, if structured incorrectly, cannot simply be restructured or rectified. The only option may be to unwind the arrangement which could involve forced sale of assets at an inconvenient time. This could be very expensive for the fund with potential stamp duty and tax consequences.”

SMSFs that do not comply with the superannuation laws

may also become ‘non-complying’ for tax purposes and, if the SMSF or the unit trust needs to dispose of the relevant property, they may incur a CGT liability, or

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the SMSF (and any other unitholders) may be required to include a capital gain in their assessable income if they need to redeem their units in the unit trust.

In addition, the ATO states that where arrangements are deliberately entered into to get around the law, the fund’s trustees may be disqualified, face civil penalties or even face criminal charges

For more information

For more information regarding this article or its contents, please contact Alex Mineeff from Taxable Accounting on 02 8883 4016.

Alex Mineeff
Taxable Accounting
208A/Level 2
Skycity, 20 Lexington Drive
Bella Vista NSW (Norwest Business Park) 2153

Telephone: 02 8883 4016
Facsimile: 02 8824 5274
Web: www.taxableaccounting.com.au

Tags: assets, benefit, buy, smsf, superannuation, trustee, Wills & Probate

Enduring Power of Attorney – Some Considerations

Posted on September 28, 2012 by Kenneth Ti

We have previously discussed what a Power of Attorney is as well as what an Enduring Power of Attorney can do for you. In summary, a Power of Attorney gives the authority for someone to act on your behalf in matters involving your finances. An Enduring Power of Attorney will allow this person to continue acting even if you are incapacitated.

If you are considering executing an Enduring Power of Attorney you should consider the following:

Do you engage in a risky job, or do you travel a lot?
Are you at an advanced age?
Does your family have a history of diseases that might cause you to be incapacitated?
If you consider that an Enduring Power of Attorney is appropriate, when should it commence from? The day it is executed, or at a time when you are incapacitated?
What are your assets? Do they include land or real property?
If you are incapacitated, does your family require immediate access to assets that are held in your name?
If you are incapacitated, does your family need to sell off your land or real property or personal assets?
Who should be your attorney? Your attorney should be someone trustworthy and someone whom you know will act in your best interests.
What kind of restrictions would be appropriate for your attorney?Can they deal with land or real property? Should they only be limited to act on your behalf on a small range of matters?
Should your attorney also use the funds from your assets to provide for other people, such as your family?

The above points are all matters that you should consider when putting together an Enduring

Power of Attorney – however these are non-exhaustive. If you are looking to put together an Enduring Power of Attorney, give us a call to ask us some further questions on what is involved, or send an e-mail to us using the quote form above.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, attorney, enduring, Enduring Power of Attorney, family, person, power of attorney, sell, will, Wills & Probate

Assets in Foreign Countries

Posted on June 22, 2012 by Kenneth Ti

We now live in a global society and it is certainly not uncommon for individuals to own assets in foreign countries. These assets may be stocks, shares, or real and personal property.

You might own assets in a foreign country. There’s many reasons why you would – you could be an investor looking to maximise your leverage. You could be a migrant and have some residue property interests in your home country. Regardless of your reasons, an important matter to consider is how these may be affected when you pass away.

If you are drafting a Will to

deal with your assets when you pass away, you should take into account the following considerations:

What kind of assets do I have and can they a type of asset that I can dispose of in my Will?
What are the Will-making requirements of the foreign country?
Will the foreign country accept a Will drafted in another country?
Are there any conflicts of laws between the foreign country and Australia?
What can I do to prevent any conflicts of laws?

Fortunately New South Wales is a jurisdiction that recognises foreign Wills as valid so long as the foreign Will is also considered valid in the country of it’s origin. Despite this, that doesn’t change the fact that this is tricky business. If you own assets in a foreign jurisdiction and you intend to draft or update your Will, you must consider these matters carefully.

We can help out with these matters and should you need assistance with these complex questions, please do not hesitate to contact us using the quick contact form on this blog.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, country, drafting, foreign, legal, phang, solicitors, update, will, will-making, wills, Wills & Probate

Superannuation Binding Death Benefit Nomination

Posted on May 25, 2012 by Kenneth Ti

In general, any death benefits paid out by your superannuation is not dealt with by your Will, and in those circumstances the Trustees of your superannuation fund have the discretion to determine who your death benefits are paid out to.

The superannuation law allows for you to direct the Trustees of your superannuation fund to distribute your death benefits to particular individuals after you pass away. This nomination is known as a Binding Death Benefit Nomination and binds the Trustees to your decision.

You can nominate any of your dependants, including any person who was financially dependant on you at the time of your death. You can even nominate that the death benefit is paid into your Estate, which then allows for your Will to deal with your superannuation.

As previously discussed, in the absence of a Binding Death Benefit Nomination your Trustees will make a determination as to who the death benefits should be paid

to. It is not unusual for the Trustees to make a ‘lazy’ determination and nominate that the whole amount is paid to your spouse or your next of kin. This may not be in accordance with your wishes.

A Binding Death Benefit Nomination is valid for three years, at which time it should be renewed. You can change your nomination or revoke your nomination at any time by advising and sending the necessary notices in writing to your superannuation fund.

If you have a self-managed superannuation fund you should check the trust deed that establishes the self-managed superannuation fund in relation to who or how your death benefits are paid when you pass away. If this is not an area which is covered by your SMSF’s trust deed, you should consider amendment of the trust deed.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, benefit, binding death benefit, death, Financial Planning, legal, nomination, person, phang, revoke, smsf, solicitor, spouse, superannuation, trustee, will, Wills & Probate

Can I prepare my own Will or use a "Do It Yourself" Kit?

Posted on April 28, 2012 by Kenneth Ti

It is quite common to see “Do It Yourself” Will Kits in Newsagents or Post Offices. They are often inexpensive and contain directions in relation to how they should be filled out.

There is nothing stopping you from drafting your own Will or using one of these Will Kits – that being said, a Will must conform to strict legal requirements and

if it fails those requirements the Courts may decide that it is not a valid Will. If this is the case then there is no Will, and your assets may be distributed in a manner which was not your intention.

A person who is not legally qualified will risk making a mistake, creating further complications or uncertainties for the loved ones they leave behind. It is not unusual for self-drafted Wills to contain ambiguous or unclear phrasing, or using words that may have a different meaning at law. Only a Court can resolve that ambiguity (or declare the Will invalid), and this could come at a substantial cost.

As a Will is an important legal document we recommend that you should have your WIll professionally drafted, to ensure that your wishes are properly recorded, clearly set out, and carried out by the right people. We can help you with all of that – if you have any questions, contact us using the quick enquiry form on this blog.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: assets, do it yourself, drafting, estates, lawyers, legal, person, phang, Probate, solicitors, will, wills, Wills & Probate

Planning for the future

Posted on March 30, 2012 by Kenneth Ti

Estate planning can help avoid complications that can arise following the death of a loved one. With an ageing population in Australia, proper estate planning is critical to ensure that your loved ones are adequately taken care of and have directions as to what to do when you move on.

Estate planning can include the following matters:

Having a Will
Having adequate life Insurance
Making sure your superannuation benefits go to the right people
Having a list of all your assets and liabilities
Having an enduring power of attorney
Having an enduring guardian
Having an Advanced Health Directive

Estate plans should never be considered permanent as considitions, whether financial or personal, change. Your plans should be reviewed perhaps every five years or so, or whenever there has been an important or significant change in your life, such as the acquisition of a significant asset or liability, or the birth, death, or marriage of someone in your family.

We can help you

review your estate plans – and where possible, help you transfer your assets to the next generation in the most effective way possible. If you have any questions please do not hesitate to contact us using the quick enquiry form on this blog.

Want to know more about estate and succession planning?

This website is proudly supported by Phang Legal. This article was posted by Kenneth Ti, associate solicitor at Phang Legal.

Tags: administration, assets, death, enduring, estate, estate planning, estates, guardian, legal, marriage, phang, planning, power of attorney, review, solicitors, superannuation, update, wills, Wills & Probate

How can a Parent Care for their Disabled Child after their Death?

Posted on October 17, 2011 by David Hazlewood

If you are the parent of a child requiring ongoing care as a result of a disability, planning for their care in the event of your death is a major issue. One of the vehicles that can help manage their financial well being is a Special Disability Trust.This structure allows you to nominate a person (or more than one person) to act as trustee and manage the financial affairs of your child. The trust is allowed to invest the funds for the purpose of paying for the care and accommodation of the principal beneficiary – your child. This may include purchasing and owning a suitable property for them to live in.

There are significant Centrelink concessions available with these arrangements. Firstly, assets up to $563,250 (indexed each year) are exempt from the assets test, and if a property is owned by the trust and used as the beneficiaries home, this is also exempt. In addition to this, Centrelink does not assess any income or distributions from a Special Disability Trust. These concessions may not be not available to beneficiaries of a normal trust (family/discretionary trust, testamentary trust), and may mean you can leave significant levels of assets for the care of your child and they can still be entitled to government assistance.

For parents above Age Pension age, there is also the opportunity to gift funds to a Special Disability Trust. Ordinarily Centrelink would regard any gift above $10,000 in a financial year ($30,000 over a rolling five years) as an attempt to deprive yourself of assets to increase your pension entitlements, and accordingly they would continue to assess these gifts as your assets. In the case of gifts by eligible family members however, up to $500,000 (combined) can be gifted to a Special Disability Trust for the care of your child and Centrelink would no longer count this as your asset. This could potentially make you eligible for Centrelink Benefits, or increase your entitlement to them.

There are a number of conditions that must be met to receive these concessions, and this article just provides a broad overview.

Want to know more?

This website is proudly supported by Phang Legal. This article was written by David Hazlewood and edited by Kenneth Ti, associate solicitor with Phang Legal.

Tags: assets, beneficiary, centrelink, david hazelwood, estate, family, Financial Planning, guardian, guardianship, planning, testamentary, Trustee Duties, trusts, wills, Wills & Probate

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Tag Archives: assets

What happens if I pass away without a Will?

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What happens if I pass away without a Will?

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The super fund pension exemption extended after death of recipient

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ATO urges caution with SMSF property investments

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Assets in Foreign Countries

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Superannuation Binding Death Benefit Nomination

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Can I prepare my own Will or use a "Do It Yourself" Kit?

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Planning for the future

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How can a Parent Care for their Disabled Child after their Death?

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