Estates and Wills
" Asset Health Check up"
Wills
A Will is the most important document which many people sign. It gives away a lifetime of assets and financially provides for beneficiaries. A poorly designed Will has enormous potential to create permanent disharmony in your family, and involve your descendents in costly litigation.
Few people would be aware that sometime the family home cannot be transferred by your Will if owed in joint tenancy. It is estimated that in over ninety percent of cases, Wills have no effect upon what happens to your interest in the family home, superannuation and assets owned under trusts. Surprisingly sometimes your most valuable and prized assets are not yours to give away.
You need an "Asset Health Check up" before writing a Will are:
- Jointly owned assets.
- Assets held by a family trust.
- Assets held by a discretionary trust,
- Fixed trusts,
- Company Trusts control.
- Superannuation benefits;
- Special needs of children or dependants;
- Life interests;
- Rights of residency;
- Testamentary trusts (and other tax effective provisions.);
- Strategies to minimise challenges to the Will;
- Pre-emptive clauses which may require your Estate to sell your interest in a company or partnership;
- The funding of that pre emptive right;
- Succession planning generally; and
- Disentitling conduct
Experienced advice before drafting a Will can save time and money and achieve the outcome that you require. It also minimises the chance of a successful challenge against your Will.
Estates
We assist families and executors in the prompt finalisation of estates. We are able to give clear advice and a timetable for each of the steps to be taken and of distribution to the beneficiaries.
Contesting Wills
We are able to assist clients in relation to reviewing their Wills to minimise the chance of a successful challenge. We also review Wills and advise as to their ambiguity or invalidity.
We advise clients in relation to medical evidence available, referring to the capacity of the deceased when they make their Will.
Family Provisions Act Claims
The dependents of the deceased may have a claim under the Succession ACt (Family Provisions Division) for a share of an estate where they have not been properly provided for in a Will.
We have acted for some clients in defending Wills against Family Provision Act claims and we have acted for clients when they were making claims under the Family Provision Act where they were not provided for in Wills.
A number of these claims can be settled and a good outcome achieved once the parties have an opportunity to set out their financial position and their needs and the matter is discussed before a Mediator of the Supreme Court.
Powers of Attorney
A Power of Attorney is a document you can sign to appoint another person (called your attorney) to act for you in relation to financial affairs.
The Power of Attorney continues while you desire it and it can be cancelled at any time while you have the capacity to do so.
A Power of Attorney ceases to operate if you lose the ability to make decisions or when you die.
Enduring Powers of Attorney
An enduring Power of Attorney gives power to your attorney to continue to act for you, even if you lost the capacity to make your own decisions.
Making an enduring Power of Attorney is a way for you to legally appoint a person of your choosing to manage your financial affairs if you have lost the capacity to make these decisions for yourself.
Guardianship
An enduring guardian is someone you appoint at a time when you have capacity to make personal, health or lifestyle decisions on your behalf, should you lose the capacity to make them for yourself.
The appointment of an enduring guardian takes effect only if you lose the capacity to make your own decisions. Further information is available from the Department of Aging, Disability and Home Care www.dadhc.nsw.gov.au.
Family Provision Orders
The dependents of a deceased person may have a claim under the Succession Act 2006 Act for a share of an estate in the event that they have not been properly provided for in a will.
We have acted for clients in both capacities, when defending against family provision claims or in the making of claims under the act.
Often as not a good outcome can be achieved once the parties have an opportunity to discuss their financial position and their needs before a mediator of the Supreme Court. Lyons Estate Lawyers can assist its clients to prepare for these mediations.
Intestacy
Estate Planning
Estate planning is more than just having a Will.
It’s looking at your overall circumstances – financial and personal – and working out how best to plan your affairs so that your assets can be distributed as you wish once you’re no longer here.
It’s thinking about how to make sure that those you leave behind don’t pay more tax than they need to, and that they receive their inheritance in a way that gives them maximum flexibility to deal with changing tax and other laws.
It’s working out how to protect the interests of family members with special needs, and how to keep assets protected against threats from creditors, family law claims, and litigation from those who seek a bigger share of your estate.
And it’s about achieving peace of mind, knowing that you’ve done everything possible to put things in order for the next generation.
The members of the Holding Redlich estate planning practice work in
four main areas: wills, superannuation, family law, and estate
litigation.
wills
If you die without a Will, your assets will be distributed according to a statutory formula. Even if your family situation is straightforward and your financial affairs are simple, there is every chance that this will not be as you would have wished.
We work with you, your accountants and financial advisers, to identify:
- Who should act as your executors?
- What are the assets which will pass under your Will?
- What other assets or financial resources do you have? Do you have family trusts or companies, money in superannuation, insurance policies, or business interests through partnerships, joint ventures or other structures? Are there assets overseas?
- How do you want your assets distributed on your death?
- Are there family members who need special consideration, and should have their inheritance dealt with in a special way to protect their interests?
- How can the tax position of your estate and beneficiaries best be managed?
- How can succession be addressed, for family companies and businesses?
- Might testamentary trusts provide valuable advantages for your beneficiaries?
Once we have a clear picture of your circumstances, we prepare a Will and other documents designed to achieve your objectives.
We also discuss “living” estate planning issues, and identify whether you need to put in place powers of attorney to enable someone you trust to take care of your financial affairs, to make decisions about your medical treatment, and even to make lifestyle decisions for you, should you be unable for any reason to deal with these matters for yourself.
Superannuation
We identify your superannuation interests, and ensure that these are taken into account when preparing your estate planning documents. Superannuation does not automatically become part of your estate, and positive steps may need to be taken to ensure that your entitlements on your death go to those you wish to benefit.
If you have a self managed superannuation fund, we work with your advisers to make sure that:
- The fund trust deed is updated if required to support the strategy you wish to put in place
- Binding or non-binding death benefit nominations are in place as required
- Pensions are structured appropriately to achieve your objectives
- Entitlements are taken in the most tax-effective manner.
Family law
We identify whether there are any family law issues currently affecting you or your family members, or whether any such issues may be on the horizon. Separation and divorce can have a significant impact on the financial affairs of a person who you wish to benefit under your Will, and we ensure that the estate planning work we do with you takes these issues into account.
We can also advise you about how any gifts you make to your beneficiaries during your lifetime, or interests you establish for them under trusts or other structures, would be treated if a property claim were made under the family law, and assist you to put strategies in place to protect those interests.
Estate litigation
Any person who considers that you had a responsibility to make provision for them from your estate can, after your death, bring a claim before the Supreme Court if they are not happy with what they receive.
We have substantial experience in bringing and defending such claims, and can assist if you find yourself involved with such a situation.
Importantly, we can discuss with you any aspects of your family
circumstances which may ultimately result in claims being made against
your estate, and help you to organise your affairs to minimise the
prospects of such litigation being brought, or being brought
successfully.