April 2016
ISSUE
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Will Kits: Should You Use Them?
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Binding Death Benefit Nomination
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Estate Planning: 11 Questions To Ask Yourself
LEGAL - WEALTH PROTECTION - INVESTMENT - BUSINESS - LIFESTYLE - SYDNEY
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What’s on Sydney
Will Kits: Should You Use Them? A will kit is an online or hardcopy do-it-yourself option for preparing and implementing a Last Will and Testament for yourself or a family member. While a will kit is usually advertised as an inexpensive, no-hassle solution for preparing and setting forth the desires for your estate or the estates of your loved ones upon death, there are some important things you should know before you decide to take this path.
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A will kit is an online or hardcopy do-it-yourself option for preparing and implementing a Last Will and Testament for yourself or a family member. While a will kit is usually advertised as an inexpensive, no-hassle solution for preparing and setting forth the desires for your estate or the estates of your loved ones upon death, there are some important things you should know before you decide to take this path. Experiencing the loss of a family member or preparing for your own future can be a daunting task, and taking extra precautions to ensure a seamless estate management process can be a positive move. Let’s take a look at why will kits have become so prevalent along with some of the risks in using will kits before you decide to invest in one.
Why are will kits so prevalent? In recent years, we have seen do-it-yourself will kit offers emerge on TV, throughout the Internet, and within tax and financial software programs alike. It is a perfect time for entrepreneurs to capitalize. Mobile and social technology make it easy to push brand marketing, web-based businesses are flourishing, and the baby-boomer era is presenting an intense senior market for which these types of services will soon be needed. People have access to thousands of free forms and documents on the Internet, and the do-it-yourself model is promoted as a money-saving solution for just about everything—from financial and real estate services to home repair and decor. While many potential online business owners see this as the perfect time to push do-it-yourself will kits, the risks may outweigh the only advantage—a low-cost solution—which could very easily turn into an expensive mistake for you or your loved ones.
What are some of the risks in using will kits? A will kit may seem reasonable at first, with no audience, no questions asked. The intention is to download a software program and wade through pages and pages of online forms that use pop-up help to get you from one question to the next. If you make it through these pages with no professional advice and no one to really explain the sections or answer your questions, this is only one-third of the process. Preparing and implementing a lawful and genuine Last Will and Testament that will hold up in PAGE 3
a court of law and be viable for you and your family is more involved. The other two-thirds of the process may include a number of important considerations: • Documents must conform to the conditions of relevant will making legislation • Documents must be printed and executed in the presence of witnesses • Executors, beneficiaries, and substitutes for both must be correctly named • Banking information must be secured • Documents must be properly signed and dated • Will language must be specific, and some language is simply not acceptable in wills • Gifts must be correctly written; giftees may not be capable of accepting gifts • Will kits do not cover superannuation pension funds, those funds reserved to pay workers’ pensions at the time they retire • Provisions must be made for marriages, divorces, and other events that change the course of legal documentation (the legal act of divorce revokes references to a former spouse via an executor or beneficiary in the will) • There are some people in your life for whom the law may require you make provision • Some proposed beneficiaries may be better catered for by testamentary trust rather than a simple will Without the presence of a lawyer or legal advisor, many of these items are not considered, which can easily negate self-made documents pertaining to a will. Will kits lead to unintended legal complications that can be avoided with proper counsel. Owen Hodge Lawyers may be able to answer some important questions about this critical decision. It is necessary to consider your loved ones by establishing a proper will before an unexpected situation arises, and experienced solicitors are available and willing to help. In any case, beware of online will kit marketers that provide product disclaimers; most of them remove any responsibility if the will kit is not effective.
Why should I seek a lawyer to prepare my will? Since your will is possibly the most important document you will ever have prepared, your diligence in ensuring its legitimacy and accuracy is essential. You want to understand the components of your will and provide the correct responses. By selecting a lawyer or other legal counsel to prepare your will, you enter into a relationship with a skilled professional who will be there with you during the OWEN HODGE LAWYERS
process and well beyond in the case of issues. When you establish a solid relationship with a certified solicitor such as the experts at Owen Hodge Lawyers, you leave your will and estate in the hands of experts in their field, and your family will not be left with legal issues and expensive fees due to incorrect documents and mis-information. There are a number of important reasons to establish a relationship with a trained professional for will and estate planning services: • A will is extremely personal and should be tailored to meet your individual circumstances • The laws surrounding wills and estate administration vary between states and territories; selecting a lawyer to prepare your will considers the law in your location • Precise language is the only way to communicate your intentions. Vague or conflicting wording and poor structure in your documents can negate your intentions or incur heavy costs • A professionally prepared will takes into account the tax implications after a death
• You investing in a long-term, secure relationship to manage your needs now, in the future, and after a death • You gain an edge for your business and investment assets that a will kit will not consider • A lawyer is versed in the legal considerations for blended families—in which a parent has children that are not genetically related to another parent While will kits may seem like an attractive, low-cost solution for your will or the wills of your family, carefully consider the long-terms costs and unintended legal complications of erroneous documents. Contact Owen Hodge Lawyers today on 0283 154 034 to prepare the most important documents of your life.
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Is Your Superannuation Protected By Your Will? Think Again!
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Binding Death BeneямБt Nomination
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A recent Supreme Court decision highlights the problems that may arise for a deceased’s estate, when the terms of a Will and those of a superannuation fund are in conflict. In this case, a married but apparently estranged couple were trustees of a self-managed superannuation fund (“SMSF”)* and both had entitlements in the SMSF. The wife had specifically stated in her Will (made in January 2005) that she did not want the entitlements in the SMSF paid to her husband and instead gifted the entitlements to her children. While the wife purportedly made 2 previous death benefit nominations in 2002 and 2006, these had lapsed. Accordingly, no binding death benefit nomination detailing her wishes was in force at the time of her death on 5 August 2010. The husband (as the surviving trustee of the SMSF) appointed a corporate trustee as the sole trustee of the fund on 4 February 2011 to satisfy section 17A(2) of the Superannuation Industry (Supervision) Act (“SIS Act”). He was also the sole Director of this new corporate trustee. Under the terms of the trust deed of the SMSF, when there is no binding death benefit nomination, the trustee has absolute discretion to pay “the credit of a deceased member’s account to a spouse or child of the member or any other person who in the opinion of the trustee(s) was a dependent of the member at the relevant time”.
will and the mere fact of doing so could not in itself be evidence of a lack of bona fides or good faith; and (ii) the Corporate Trustee was not obliged to appoint the executors as a co-trustee. As such, the children could not receive any of the entitlements which went to their father.
What then are the key estate planning lessons to be learnt from this decision? The case serves as a reminder that a will does not override the discretionary power of a superannuation fund trustee to determine the payment of the superannuation benefits as per the trust deed and superannuation laws. If you have superannuation and in particular a SMSF, you need to understand that your SMSF does not automatically form part of your estate on your death. You must direct those entitlements via a binding death benefit nomination rather than a Will. Please contact James Kelly to discuss this issue and to make sure your intentions can be carried out in relation to SMSFs and how this interplays with your other assets and your Will.
In this case, the husband as the sole Director of the Corporate Trustee exercised this discretion and paid his late wife’s entitlements (amounting to around $650,000) to himself and not to their children. The children as executors of the late wife’s estate took legal proceedings against their father in relation to this decision. In particular, they argued that as specified in section 17A of the SIS Act, they were entitled to be appointed as co-trustees of the SMSF. Consequently, had they been appointed co-trustees, they would also have been able to wield influence on the payment of the death benefit. The Court held that: (i) the Corporate Trustee of the SMSF was entitled to ignore the deceased’s direction in her PAGE 7
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Estate planning 11 QUESTIONS TO ASK YOURSELF 1. What is estate planning? Estate planning involves carefully considered decisions regarding your estate and property, your future and also the future of your children. Generally, people tend to delay their decisions regarding estate planning until they are on the verge of retirement or believe that they will be incapacitated soon. Estate planning should not just be a retirement related decision. As part of your estate plan, a will can be written and updated by private trustees and solicitors, who usually charge a fee. In NSW, the NSW Trustee & Guardian authority provides professional and independent trustee services for drafting and execution of a Will. When you are making your estate plan, it is important to be clear about your needs and requirements before you decide to go ahead and record your decisions about who you authorize to take decisions on your behalf in your old age or wish to bequeath your property to. Instruments of a estate plan include: - Will - Superannuation death nominations - Testamentary Trust - Power of attorney - Power of guardianship - Anticipatory direction
2. Who will be the guardian of your children in case of your death? Many people delay their Estate Planning and do not give a thought about whom to appoint as the guardian of their minor children in case of their death or any other sudden medical emergency. The general perception that Estate Planning is only a tool for retirement planning does not hold good in these
scenarios. Before you make your Will, you should be conscious about whom to appoint as the guardian of your children. In case you fail to appoint a guardian, the Court may appoint one and that might not be the best possible alternative that you had in mind for the children.
3. what will happen to your property in case no one is left to claim? Planning is necessary, but there will always be a probability of something unforeseeable. All the arrangements that you had in your mind regarding distribution of your assets after your death, might fail, due to a sudden natural disaster or any other unforeseeable scenario. You should always take into consideration the unforeseeable situations and make provision for division of your estate in case no immediate family members or friend are alive or present to inherit or lay a claim to your estate. For many Will makers it is a huge stumbling block to decide about how to provide for such a clause since many are unable to fathom the consequences of such a scenario.
4. Check and cross check: Have you provided for everyone? When you are making a Will, make sure fair treatment is meted out to all your descendants and beneďŹ ciaries. Be sure about whom do you want to provide for and who is important in your life even if you do not share a blood relationship with that person. In case you have an extended family or children from a previous marriage or your spouse has children from a previous relationship, be extra careful and cautious about providing for them during your Estate Planning. It is also important to provide clear instructions about dealing with their claims later on, as it might result in a legal mess later on.
5. Have you told your lawyer about all the important relationships in your life? Estate Planning can have consequences for your surviving loved one. . If you want to provide against
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long drawn courtroom battles, be sure to disclose all the important relationships in your life – including intimate love affairs, children born out of wedlock, previous domestic partnerships or same sex relationships.During Estate Planning you need to understand the legal implications and discuss them in detail with your Lawyer. Do not hesitate to share information with your Lawyer as he/she can provide you with necessary solutions. It is something that you need to do for your loved ones and the ones you want to provide for after your death and disclosure of full information will prevent chances of your estate being entangled in a legal mess later on.
7. Have you preserved your sperm, eggs and fertilised embryos for your future use? Progress in the field of science and technology has provided us with options of preserving our genetic material for future use. It has thus become important to consider during Estate Planning about how you want to provide for any descendants conceived or born after your death.
The problem with a pre-nuptial agreement or a BFA entered long back is that they can be easily forgotten and may also be ignored as irrelevant. However, your legal obligations do not change and it is important to think and recollect about them and disclose such information to your Estate Planning Lawyer. He can guide you about what will still be relevant and what can be legally terminated before your go ahead with your Estate Planning measures considering your future financial needs and priorities.
11. You love your pets but have you thought about what will happen to them after your death? Your pets are extremely sensitive and intelligent creatures who will miss you the most after your death. You should be clear about whom to entrust with the responsibility of taking care of your pets after your death.
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If you have pets with long life expectancies you may need to form a pet trust or you can also appoint someone you trust to care of them. Alternatively, you may also approach an organisation to take care of your pets after your death.
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Litigation involving children conceived after the death of a legal parent and ownership of genetic material are relatively new and are a sensitive area of litigation.
agreement (“BFA”)?
8. Have you ever changed your identity?
12. Do i need to provide a power of attorney You may remain the same in your own eyes, but in the or a living will? eyes of law, your identity changes with a change in your name, legal status or if you consider undergoing gender transition. You should always update your Social Security Registration, driver’s license, passport, security clearances, professional licenses and any other forms of identification you have. This will ensure that after your death, you beneficiaries and loved ones are not embroiled in any legal battle just to prove your identity!
9. Have you ever gifted large sums of money or assets to others? We often tend to forget about the gifts that we made to our near and dear ones when they might have been undergoing financial hardships. While making Estate Planning arrangements, we often forget about these gifts. However, some of these gifts may incur huge tax liability and it is better you think about any such gifts you had made previously and disclose them to your lawyers.
10. Have you ever entered into a prenuptial agreement or any other binding financial PAGE 9
An effective Estate Planning mechanism will not only provide for situations after your death, but it will also consider situations where you are permanently incapacitated due to old age or poor health. You may provide for Power of Attorneys or appoint Enduring Guardians who you entrust with taking decisions on your behalf.A living Will constitutes the health care directives you want to be followed in case you are permanently incapacitated. If you have any specific wish, you can provide instructions about how to deal with such scenarios. You may have a Power of Attorney in place entrusting your spouse or any other trusted person to take a decision on your behalf.
Get the Help From Us Our team of Lawyers know the sensitivities involved in the procedure. We deal with our clients with the outmost compassion and sensitivity. We have a team comprising of Lawyers who have worked with varied Estate Planning situations and their vast experience in this field can help you take appropriate decisions regarding your unique estate planning needs.
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What’s On in Sydney Sydney Sailboat Expo
Halal Expo Australia
stART 2016
Saturday 9 April to Sunday 10 April Manly
Sunday 10 April 2016, Surrounds Surrounds
Sunday 10 April 2016, Surrounds
The Sydney Sailboat Expo will be held on the 9-10 April 2016 from 10am to 4pm at the International College of Management, Sydney (ICMS) in Manly! The Sydney Sailboat Expo is a meeting place for...
Halal Expo Australia is a Festival Style Exhibition event of Halal Food, Products and Services in Australia with great family fun day for everyone. It is an open family event for all ages where...
stART a LEGO design, calligraphy, sketch drawing, recyclable art and paint clay tiles in the free workshops. stART your imagination at our pop art library living room, see woodcarving in action and...
Storytime Ballet: Sleeping Beauty
Sydney Comedy Festival Gala
Cracker Night 2016
Tuesday 12 April to Wednesday 13 April Monday 18 April 2016 Parramatta City Centre
Tuesday 19 April to Wednesday 20 April Newtown
From concept to construction, hear from four renowned garden designers about the beautiful spaces they have created, the challenges they have experienced and the trends they have embraced (or not!).
Sydney's premiere comedy event, the Sydney Comedy Festival Gala, returns as part of the 12th annual Sydney Comedy Festival. Selling out the last 4 years in a row the Gala is a comedy extravaganza...
It's quite simply Sydney's biggest night of comedy! Featuring a dazzling line up of the biggest and best Australian legends, international stars, and next big things of comedy, Sydney...
Australian Mixed Media Roadshow
Wine Masterclass with Ben Malouf
Commemoration Service
Thursday 21 April 2016 Surrounds
Thursday 21 April 2016 Balmain
Monday 25 April 2016 City Centre
Join the Australian Mixed Media Roadshow for four days of mixed media workshops, special events and Art Show Alley; featuring Internationally recognised artists from Australia, the USA and...
Join Ben Malouf, The Daily Telegraph's resident wine reviewer and co-host of the Food and Wine Hour on 2GB at a special wine masterclass at the 3 Weeds Rozelle.
The ANZAC Commemoration Service is held at the ANZAC Memorial, Hyde Park, adjacent to the Pool of Remembrance, commencing at 12.30pm.
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INDIVIDUAL AND COMMERCIAL LAW SPECIALISTS Enhancing the lives of our clients by providing acquisition of wealth, protection and management of assets and the transfer of wealth throughout generations. CALL 1800 770 780 VIEW www.owenhodge.com.au VISIT Level 3, 171 Clarence Street, Sydney NSW 2000 Level 2, 12-14 Ormonde Parade, Hurstville nsw 2220