Contesting a Will

Posted on May 17, 2013 by Kenneth Ti

We’ve previously written about contesting Wills on our blog before, and thought to expand a little more in relation to this topic.

Our society is changing, and more and more families are “blended” in nature – children from a previous marriage, de-facto relationships with previous “baggage”. Because of this, more and more people get pulled into a dispute if a Will isn’t drafted properly, or hasn’t taken the dynamics of a family into account.

Generally speaking, in order to be successful with a will dispute, the disputing party will need to show that they had a certain relationship with the deceased person, and that the Will hasn’t adequately provided for their well being and care. This can include maintenance, education, or other things in life.

The disputing party will also need to show that:

They should have been provided for, or there isn’t adequate provision for them
That they were dependent on the deceased
What is “adequate provision”?

Unfortunately there isn’t any foolproof way to stop a challenge to a Will, but a good Will can take this into account and make it difficult, or expensive, for someone to challenge the Will. This means that it is really important to make sure that your Will is drafted correctly, taking all of these matters into account!

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: challenge, children, contesting, deceased estate, family, family provision act, Financial Planning, succession act, will, Will Drafting, wills, 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.

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?

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

When should I review my Will?

Posted on February 15, 2013 by Kenneth Ti

Life is hardly ever stagnant. People get married, have kids, buy houses, and sometimes hit the lottery.

Circumstances in your life always change, and because of that, having a Will that doesn’t take into account those changes in your circumstances is hardly ever appropriate.Certainly a Will can be put together to take into account future circumstances, but it can’t possibly cater for everything.

As a general rule of thumb, you should review your Will (or if you don’t have one, you should draft one up!) on any of the following events:

Getting married, or entering into a long term de facto relationship
Moving house, or moving abroad
The birth of children or grandchildren in the family
The death of your spouse, partner or other family member of your family
On your children reaching the age of 18
Divorce or separation
On the sale of a significant asset, such as investment properties or family businesses
A significant change in personal finances, such as winning the Lotto or receiving some money from a Will
On your retirement
The death of your spouse, partner or other member of your family

In addition to this, it’s often a good idea to review your Will every five years or so.

Lots of things can change in five years, after all.

Like we said – if you don’t have a Will – now’s a good time as any to get one sorted out.

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: buy, children, death, family, information, kenneth, lawyer, marriage, phang legal, Probate, retire, review, solicitor, ti, 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

Tying up loose ends after a divorce

Posted on November 28, 2012 by Kenneth Ti

A divorce is never pleasant, and even less so if there was protracted conflict over the course of finalising the divorce. But even after finalising the divorce, there are possibly a few loose ends that you need to tie up – and this includes reviewing and re-drafting your Will.

A Will is not necessarily revoked after your divorce has been processed by the Court. The only parts of the Will which are revoked are those parts that benefit your former spouse. As you can imagine, this can create confusion in relation to which parts are still in effect and which parts have been revoked.This also may create a situation where your estate may be distributed in a manner which you did not anticipate.

In addition to this, there may be other documents that do not revoke themselves after the finalisation of your divorce. These include documents such as your binding death benefit (for your superannuation), a power of attorney, as well as an enduring guardian.

It is therefore critically important that you review all of these matters after finalising your divorce, and making sure that you tie

up all loose ends to ensure that your wishes are properly followed.

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: benefit, binding death benefit, death, divorce, drafting, enduring, estate, loose ends, marriage, Probate, review, revoke, supreme court, will, wills, Wills & Probate

Appointing the Public Trustee

Posted on October 24, 2012 by Kenneth Ti

We often receive many enquiries about the advantages and disadvantages of appointing the public trustee as an executor and trustee in Wills. In this article we will explore briefly some of those advantages and disadvantages to help you make a decision when it comes time for you to make your Will.

In NSW, the public trustee is now called the NSW Trustee and Guardian – a merger between the Public Trustee NSW and the Office of the Protective Commissioner (1 July 2009).

The NSW Trustee and Guardian have four main roles, being:

Will Making
Estate Administration
Corporate and Individual Tasks
Powers of Attorney.

The NSW Trustee and Guardian can assist

you with drafting your Will for free so long as they are appointed the executor and trustee in your Will. As they have been around for a long time they are well experienced in drafting Wills. There are also benefits associated with them being your executor and trustee – as they are not related to you or your beneficiaries, they are more likely to be impartial and will follow your Will to the letter.

However, allowing the NSW Trustee and Guardian to draft your Will and appointing them as your executor and trustee does have its disadvantages. The primary disadvantage is that as they are your executor and trustee, they are entitled to be reimbursed for their costs in administrating your estate. Some of these costs will depend on the value of your estate, and are assessed at a percentage of the value of your estate. Naturally, some of these costs may be saved if you appoint a beneficiary or a person related to you as the executor or trustee of your estate.

Having an impartial organisation administrating your estate can also be disadvantage in some situations, as they may not understand your underlying intentions or your family situation when drafting your Will. It is in such situations that having a family member as your executor and trustee, a person who understands you and your particular way of thinking, will certainly be more beneficial than having the NSW Trustee and Guardian administrate your estate.

In summary, the advantages of having the NSW Trustee and Guardian appointed as your executor and trustee are:

Free Will drafting
Experience in managing estates
Independent and impartial

The disadvantages of having the NSW Trustee and Guardian appointed as your executor and trustee are:

Costs based on a percentage of your estate
Not likely to understand your particular family situation

When drafting your Will you should take all these matters into consideration. To find out more about Will drafting please give us a call or use the quick contact form located 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, beneficiary, costs, drafting, estate, executor, family, free, guardian, independent, lawyers, legal, nsw trustee and guardian, person, phang, Probate, Public Trustee, solicitors, trustee, will, Will Drafting, 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

Appointing Guardians for infant children

Posted on August 31, 2012 by Ern Phang

Why appoint a guardian for your children?

If you have young children, have you ever thought who would look after your children after you pass away? Even if you have a partner, or your children have another parent, there is always the possibility that both of you pass away at the same time – and then what happens?

Estate planning for people

who have young children often focuses on appointing a guardian. You may already have other family members in mind, or maybe a close friend who you can trust to have your child’s best interest at heart. The issue of appointing a guardian to look after your child is a very important consideration, not just from a legal perspective, but also from a social perspective.

Your child will be a minor until they turn 18 years old, and only then will the law recognise them as an adult together with all the legal rights and responsibilities as an adult. If you pass away before your child becomes an adult, it is likely that you will need to appoint a trustee to look after the financial aspects of your estate (possibly for the benefit of your child) and a guardian to care for your child’s welfare and upbringing. These appointments should be properly addressed in your Will.

Aside from appointing a guardian, your Will may also include directions for guardians with regards to place of residence, academic and/or religious upbringing, health and medical issues – basically, any matter that would otherwise normally concern a parent. Ensuring that your testamentary wishes regarding your child and appointing a guardian is properly documented hopefully will lower the likelihood of disputes over who should be responsible for your child – either through choice or circumstance.

Life is full of twists and turns, however with some planning in advance you can ensure that the children that you leave behind are in good hands and are cared for by the right people – people that you trust.

So why delay? If you are interested in drafting or reviewing your Will and what it says, give us a call or use the quick contact form to get in touch with us.

Want to know more about Wills and Estate 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 Wills, and your estate and succession planning requirements.

This website is proudly supported by Phang Legal. This article was posted by Ern Phang, director of Phang Legal.

Tags: benefit, children, drafting, estate, family, guardian, legal, planning, testamentary, trustee, will, Wills & Probate

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Tag Archives: Wills & Probate

Contesting a Will

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