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Estate & succession planning

Every year the scenarios in your life (or those of your loved ones) change be it in business or personal, for better or for worse. Without adequate protection, your assets can become vulnerable, placing your finances and your business or family’s future at risk.

Merthyr Law review your unique circumstances and offer leading advice on how to structure your affairs to help keep your assets safe for your family. The Family Safe program is designed to ensure that you continue to keep your Family Safe as time moves on and keep your estate planning abreast of your changing circumstances and changes to the laws.

Merthyr Law’s Family Safe Program is designed to ensure you don’t get too busy to regularly review your estate planning.

In Merthyr Law’s experience, an investment in an effective plan will pay for itself many times over when it is called upon to protect assets against attack from the family court or bankruptcy and will limit disputes amongst beneficiaries and avoid family feuds.

Merthyr Law can assist clients with the following estate and succession planning issues:

  • minimising the risk of family provisions claims;
  • complex estate planning for blended families;
  • using testamentary trusts to maximise a family’s after tax money
  • using testamentary trust wills to protect inheritances from bankruptcy and divorce;
  • using Family Safe Trusts to help ensure inheritances remain in the family;
  • advising on options to minimise disputes between beneficiaries;
  • advising on incapacity;
  • pursuing and defending family provision claims;
  • administering estates;
  •  deeds of family arrangement and helping avoid potential disputes between beneficiaries;
  • disputes over incapacity and undue influence;
  • ensuring your superannuation ends up in the right hands;
  • superannuation death benefit disputes;
  • helping ensure that Wills are prepared by experts to help ensure that they are safe from attack for alleged incapacity, undue influence or other defect;
  • drafting wills to adequately deal with complex financial structures and arrangements;
  • restructuring business assets to help ensure equal inheritances between children;
  • advance health directives;
9 ways to keep your assets in the right hand
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Download our brochure: 9 Ways to keep your assets in the right hands:

Estate Planning for if your daughter marries the class clown.

Our Estate & Succession Planning Team

Estate & Succession Planning FAQ’s

What will happen if I don’t make a Will?

If you die without making a Will, your assets will be distributed according to a strict formula set down by the Law. This may mean

-you will have no say in how your estate is administered or distributed and your
wishes may not be considered;
-the costs to administer your estate will be higher, leaving less for your loved ones;
-there is a higher likelihood of disputes between family members and beneficiaries;
-assets, such as the family home or car, may need to be sold, so beneficiaries can claim their share of the assets;
-members of your family with special needs may not be provided adequate support; and
-administration of your assets will be delayed, potentially causing hardship for loved ones.

Choosing the most effective Will – What does it do?

Creating a Will is not like fixing a car. You won’t get a chance to fix it once it breaks down and the consequences of a faulty Will can be disastrous for your loved ones, once you have gone. Your Will sets out:

  •  Who administers your estate and enforces your Will.
  • Who receives your assets after you pass away. You may have particular items you want to go to a particular person for family or personal reasons.
  • Who will be the Guardian for your children under 18 years.
  • What you want to happen to your body – i.e. whether you wish to be buried or cremated, or have your ashes scattered somewhere important to you.

If you don’t have a Will, you will not have a say in how your assets will be distributed and who distributes them.

I don’t really have enough assets, do i need a will?

Ten years ago, your most valuable single asset may have been your family home. Now, the lion’s share of your wealth is likely to be held within your superannuation fund. It’s easy to forget your superannuation, life insurance polices and other assets when thinking about your ‘estate’.

In addition, your self-managed superannuation needs special consideration to prevent non-compliance or adverse taxation consequences upon death.

Without an up-to-date Will that makes accommodation for these assets, they may never end up with the loved ones that you intended to have them. Everyone should prepare a Will for peace of mind and to ensure their wishes are fulfilled in the event of their death.

When should I update my will?

You can change your Will at any time you choose but there are certain circumstances that revoke your Will and others where it is strongly recommended that you review your Will.

1. Marriage automatically revokes your current Will unless it specifically states that it is made in contemplation of marriage.
2. If you divorce, your divorced spouse is not entitled to any gifts under your Will.
3. If you are separated but not yet divorced, you should review your Will as soon as possible.
4. Whenever there are significant changes to your circumstances, or those of your intended beneficiaries, you should review your Will.
5. Your Will should be reviewed yearly but at least every five years.

What is an Enduring Power of Attorney?

A Power of Attorney is a written agreement recognised by law that gives someone else the power to sign documents and make decisions on your behalf. An Enduring Power of Attorney is an agreement that continues to have force even after you become incapable of making decisions for yourself. An Enduring Power of Attorney can empower the attorney to make decisions not only about financial matters but also personal matters which include:

• Where you live and with whom;
• Day-to-day issues like dress and diet; and
• The type of health care you will receive.

You are able to nominate a trusted person or persons (often a family member) to be your attorney and can limit their powers when appointing them.

When does a Power of Attorney begin?

A Power of Attorney can commence immediately or upon you suffering an incapacity. The choice is yours. Enduring Powers of Attorney (also known as an Appointment of a Guardian in some states) are called “Living Wills” as they apply during your lifetime, from time of execution until your death, unless you recover from your incapacity. Typically, Mum and Dad will give a Power of Attorney to each other and then upon the incapacity of both of them, they would give Power of Attorney to their children or other trusted family members and friends.

What are the benefits of Enduring Powers of Attorney?

• Your wishes are fulfilled when you are unable to make your own decisions;
• Eliminate the time and costs of court proceedings.
• Ensure your SMSF remains complying

Who can make a family provision claim?
  • Spouses including de fact spouses
  • Children and step childrena parent or person under 18 or parent of a surviving child under 18 who was dependent on the deceased
What are the considerations for a Family Provision Claim?
  • Whether any provision you have already received is adequate for your proper maintenance, education and advancement in life.
  • Competing claims of other eligible persons or beneficiaries.
  • Nature and duration of your relationship with the person who passed away – both your financial and non-financial contributions to the deceased.
  • The size of the deceased’s estate. For example, you may have a strong claim for family provision but if there is only $30,000 in the estate, then there is very little scope for the court to order provision.
  • Your financial means and responsibilities as well as the financial circumstances of the people you combat with.
  • Promises made to you and benefits received from the deceased during their lifetime.
  • Your age, sex and health.
What is the best way to avoid a Family Provision Claim

The best way to avoid a Family Provision Claim is to ensure your estate is not large enough to be worth fighting over. This can be achieved through:

  • Transferring property to trusts
  • Creating joint tenancies
  • Ensuring superannuation death benefits aren’t directed to your estate
  • Gifting your equity in your home to a Trust using Merthyr Law’s Family Safe Gift and Loan Back Strategy.
What protection can testamentary trust wills provide from the Family Court?

 

 

Generally the more control a beneficiary has over their inheritance, the greater the risk of  family law property adjustment. See our Family Court Protection Spectrum
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Can i make a will for a minor?

Yes.  Minors sometimes are recipients of sizeable inheritances or personal injury awards.  Minors do not have capacity to make a Will, and as such, if a minor dies the rules of intestacy apply, meaning that the minor’s inheritance is usually split equally between the surviving parents. If a person believes that the rules of intestacy lead to an unfair outcome, such person can apply to the Court for the Court to order a Statutory Will for a person.

Can I apply to change my disabled son’s Will so that his estranged father doesn’t receive my son’s personal injuries award under the rules of intestacy?

Yes. This very circumstance happened in the case of RKC v JNS [2014] QSC 313.  In that case, the son was severely disabled from birth and was the recipient of sizeable personal injury compensation.  The mother was responsible for the care of the disabled child and the father had little to do with the mother or the child.  If the disabled childe died without a Will, the inheritance would have been split equally between the father and the mother, despite the father having little to do with the child. In this case, the Court found that it was appropriate to order the disabled child to have a Statutory Will leaving all of his inheritance to the mother.

Can I apply to change my incapacitated parent’s Will to include Testamentary Trusts?

Yes.  At risk business people wish to avoid accumulating wealth in their own name, as litigation may result in such wealth ending up with creditors (see brochure gift and loan back).

Testamentary Trusts are often used as a vehicle to ensure that inheritances are protected from beneficiaries’ possible creditors and bankruptcy.  In RE Matsis [2012] QSC 349 the Court upheld an application by three sons who were financially at risk for their incapacitated mother’s will be changed to one containing  a testamentary trust.

Also, testamentary trusts can be used as a vehicle to help protect inheritances from the reach of the Family Court – see Family Court Protection Spectrum.  Merthyr Law successfully made the first application to the Court for an incapacitated mother’s Will to be changed to a Will containing Testamentary Trusts in order to ensure that the mother’s inheritance did not end up with the daughter-in-law who had recently separated from the son and was involved in Family Court Property proceedings – see GUA v GAV [2014] QCA 308.

Can Statutory Wills Applications be used to resolve a potential estate/ family provision dispute whilst my incapacitated father is still alive?

Sometimes everybody knows that there is going to be estate litigation between the children once the parents pass away.  In circumstances where the surviving parent is incapacitated, Statutory Will arrangements, combined with a Deed of Family Arrangement, where the beneficiaries agree not to challenge the Will can be used as an effective means to help ensure there is a fair distribution between the children and to minimise the risk of estate litigation after the parent’s passing.  NSW is the only jurisdiction that enables a person under section 95 of the Succession Act 2006 to release that person’s right to seek a Family Provision Order.  As such, in NSW, it is possible for an incapacitated Will to be changed and for potential claimants to relinquish their right to make a Family Provision Claim in the one application – see Re RB, A Protected Estate Family Settlement [2015] NSWSC 70.

Estate & Succession Planning News and Publications

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