In the area of estate planning and wills, our services range from drafting wills, to more complex structures taking into account wealth protection, future objectives and taxation , as well as business succession planning.
A central component of any tax planning for death is the will. We can document the will, taking into account the various favourable revenue consequences. The will is an important tool to enable the restructuring of the ownership of family assets. We consider the likelihood of the restructure being frustrated from a challenge by a dependant under, in the case of New South Wales, the Family Provisions Act (or the equivalent in other States).
It is fundamental in estate planning to know what assets will form part of the estate and what assets will not (and therefore need to be dealt with separately). We provide advice in relation to jointly held property, shares in private companies, partnership property, and property held in a discretionary trust, proceeds from life insurance policies, capital guarantee deposits and superannuation assets (such as binding death benefits).
Where, for example, investments are held in joint names it may be desirable to convert the ownership to tenants in common. This allows the deceased’s one-half interest as tenant in common to be dealt with in accordance with the will – rather than being automatically left to the surviving joint owner. Once it is known what assets will be in the estate and what will not, then we consider where ownership of the assets in the estate are to be transferred.
The basic consideration is whether the assets should be left to individuals or to some form of entity (for example, a trust arrangement).
We advise on the use of trusts and, especially discretionary trusts to hold capital appreciating assets. Trusts also provide the ideal vehicle to hold assets in respect of asset protection planning.
The transfer of assets in a deceased estate to trust entities can be undertaken by nominating an existing trust or creating a trust in the will – the so-called “testamentary trust”. We advise on the use of the testamentary trust, for example, allowing the testator to “structure” the future ownership of the assets in the estate. By leaving the assets into a trust then certain “controls” can be placed over the enjoyment or use of such assets.
We provide advice on capital gains tax (“CGT”) consequences where a pre-CGT asset is converted to a post-CGT asset on the death of the owner of the asset. We can develop a strategy whereby such pre-capital gains tax assets do not form part of the estate of a deceased person.
We will also review the terms of any existing trusts. Such a review would ensure that the terms are altered to provide for the on-going management of that trust after the death of the principal in the trust.
We can provide advice in relation to Part VIIIAB financial agreements under section 90UC of the Family Law Act.
We can also provide advice and documentation for Powers of Attorney (enduring) and Enduring Guardians.
The Power of Attorney is very important. It is sometimes referred to as a “living Will”. A power of attorney allows someone to undertake financial transactions on the principal’s behalf. The power can either be general or specific or limited. A general power is where the person can undertake any activity and and enter into any transaction which the principal could do without any limitation. A specific or limited power is limited to enter into a particular transaction, for example, the sale or purchase of a property or to operate a particular bank account. Where the power of attorney relates to real estate transactions, it must be registered with the Land & Property
Information. We can provide a so-called “Enduring Power of Attorney”. This means that the person appointed as the attorney can act whilst the principal is incapable of acting (for example in a coma).
An enduring guardian relates specifically to the power to make decisions regarding where the person lives, and other medical and general wellbeing needs. It only comes into effect if the person is unable to make their own personal or lifestyle decisions.
- Will Instruction Sheet
- Powers of Attorney (enduring) Instruction Sheet
- Enduring Guardian Instruction Sheet
If you are an executor of a Will, you will need to ensure that the deceased’s wishes are carried out in accordance with the terms of their last Will. The executor’s role is to call in the assets of the deceased’s estate which are then used to pay any estate liabilities, before a final distribution to the beneficiaries as set out in the Will. In most circumstances the asset holder (such as the NSW Land & Property Information, share registry or aged care facility) will not release or allow the transfer of assets without the executor first obtaining a Grant of Probate.
We can assist with applying for the grant of probate (on an uncontested basis) as follows:
- Taking instructions relating to the deceased, the executors, the beneficiaries and the assets and liabilities of the estate
- Preparation of the summons and supporting documentation including affidavit(s) of executors for filing in the Supreme Court, advertising the proposed application, obtaining certificates required to accompany application, and if requested writing to any debtor and creditor for details of documents
- Signing documents and filing at the Supreme Court
- Responding to any requisitions raised by the Supreme Court in relation to the application.
After obtaining grant of probate, we can assist with:
- Advising on payment of debts
- Preparing and completing all documents required to transfer, transmit, sell and realise the estate assets (other than real estate);
- Attending to you on signing of all realisation documents;
- Corresponding with financial institutions, share registries, insurance companies, stock brokers and others;
- Obtaining certifications where required, of realisation documents and on copies of the grant and other documents
- Preparation and publication of a notice of intended distribution (Statutory notice to Creditors)