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Estate planning – An exciting opportunity for small law firms – By Brad Watts

20 March 2018 by By Lawyers

Wills have traditionally been seen as valuable because they eventually bring the firm estate work, rather than valued for the fees associated with the wills themselves. However, estate planning is a different thing and many firms are now taking a far more comprehensive approach, with a far more profitable result.

Brad Watts has written an article outlining some of the opportunities for law firms in estate planning: Estate planning – An exciting opportunity for small law firms. We take this opportunity to introduce Brad to those who do not know him.

Brad has contributed to By Lawyers publications for over 10 years, and has this year joined By Lawyers as a Senior Consultant and Editor. Admitted as a solicitor of the Supreme Court of NSW in 1994, Brad worked in general practice for 21 years, before moving to the NSW Crown Solicitors Office as a Solicitor Advocate and then A/Director. Having owned and managed small law firms, with substantial experience in all aspects of general practice and extensive experience in criminal and civil litigation, Brad offers a wealth of knowledge and practical assistance to our subscribers.

 

Filed Under: Articles, Australian Capital Territory, Federal, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: Brad Watts, estate planning, testamentary trusts

Costs – Incorporation of Disclosure Notice into Client Service Agreement – Electronic signature ready

13 March 2018 by By Lawyers

The Disclosure Notice and Client Service Agreement has now been incorporated into the one document across all Queensland and Federal Guides and electronic signature fields have been added to enable this combined costs disclosure precedent to be electronically signed via DocuSign, which is available to LEAP in the cloud users.

 

Filed Under: Queensland Tagged With: Client Service Agreement, costs, Disclosure Agreement

Estate planning – An exciting opportunity for small law firms

1 January 2018 by By Lawyers

The usual wills versus a will with estate planning

For most clients a will is a straightforward document that appoints an executor, an alternate executor, perhaps makes some specific bequests of personal items to certain family members, then leaves the balance of the estate to their spouse then their children with a default clause if none of these beneficiaries survive.

The fees charged by most firms are modest and reflect the reality that most clients do not wish to pay a great deal for something that they only reluctantly accept that they need and know they will never personally use and can prepare themselves using a form bought from the post office.

Wills have traditionally been seen as valuable because they eventually bring the firm estate work, rather than valued for the fees associated with the wills themselves. There is an old adage that the goodwill of a practice are the good wills in safe custody.

However, estate planning is a different thing and many firms are now taking a far more comprehensive approach, with a far more profitable result.

Estate planning is an area where small firms can grow their offering to existing clients and attract new, high net worth clients who require and appreciate professional expertise and assistance in this important area of practice.

It is far easier to offer this expertise than many small firms realise. The By Lawyers suite of testamentary trusts and wills clauses, together with the extensive commentary on wills and estate planning, means that firms can confidently advise clients who may have substantial assets including business interests held in company, partnership, trust structures or self-managed superannuation funds.

Whereas a firm might charge few hundred dollars for ‘husband and wife’ wills, the comprehensive succession planning required by a family with substantial assets and interests, including a review of existing structures and documents, preparation of wills which incorporate testamentary trusts, plus other appropriate documents such as powers of attorney and appointments of enduring guardian, is likely to involve fees of many thousand dollars, as well as extending the relationship between the firm and the family to other areas and members. Clients who have such assets and need such advice are mostly very happy to pay for it because they realise the value of the exercise and are as dedicated to retaining their assets for their family as they were to building up those assets in the first place.

Why testamentary trusts?

For clients with substantial assets, complicated families or family members who have medical or personal problems, the use of testamentary trusts has multiple benefits over usual wills, summarised below.

Creditor protection

To protect a bequest from being accessed by creditors of a beneficiary, including guarantees for a business venture.

Divorce of a child

To avoid family assets being redistributed by the Family Court. Assets held in trust are not assets of any individual and the Family Court cannot make an order requiring the distribution of those funds.

Education

Bequests via testamentary trust for payment of school and tuition fees for grandchildren is more tax efficient than simply leaving money to the child’s parents.

High risk beneficiaries

Where one of the beneficiaries is in a high-risk business or has personal issues with drugs or gambling which warrant strict controls being placed on access to any estate funds.

Remarriage of spouse

To limit access to existing family assets by a new family or spouse.

Tax benefits

To minimise tax payable, facilitate income splitting and distribute tax free to children under 18 on marginal rates with the no tax threshold.

Will challenges

Keeping estate assets in trust means they are not in the beneficiaries’ estates and therefore not subject to challenge when they die.

Disabled children

To ensure that any disabled or intellectually impaired children are provided for in the most effective way. A Special Disability Trust can provide a substantial bequest to a disabled child without impacting on any Centrelink benefits.

Identifying the right clients for complex estate planning

Although most clients potentially would benefit from a testamentary trust, their present circumstances do not suggest that one is necessary. In contrast estate planning is essential for clients with high net worth, multiple assets and asset types, business interests, complex business structures, existing family trusts, self-managed superannuation funds, complicated family arrangements and relationships and potential beneficiaries with special needs or personal problems.

Many clients have not considered the need for estate planning which with the aid of By Lawyers commentary and precedents can be offered by practitioners.

The benefits of testamentary trusts

  • The fundamental advantage of a testamentary discretionary trust is that the assets are held by the trustee for the beneficiaries, not by the beneficiaries themselves. This allows the protection of assets from claims against beneficiaries and from misuse.
  • Separate fixed trusts can be established for separate people or purposes, with conditions. For example, if one child has a drug addiction, a bequest could be left in trust for that child to receive appropriate maintenance and treatment, without them having access to the capital.
  • If a beneficiary faces bankruptcy, an inheritance for that beneficiary through a testamentary discretionary trust will not form part of the beneficiary’s bankrupt estate.
  • Assets held within a testamentary discretionary trust are not part of the matrimonial pool to be divided up in any family law property settlement in the event of divorce.
  • Testamentary trusts also provide an opportunity for testators to control assets after their death, by way of conditional access to trust assets. While not desirable for the beneficiaries, this can certainly be seen by many testators as an advantage.
  • Testamentary trusts can be very tax effective – income, capital gains and franked dividends can be distributed among all beneficiaries each year in the most tax-efficient way.

By Lawyers precedents and commentary

Using By Lawyers publications gives your firm the tools and confidence to assist clients with their estate planning, bringing profitable new work and quality new clients into your firm.

Filed Under: Articles, Australian Capital Territory, Federal, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: estates, Wills

QLD conveyancing – Priority notices

11 December 2017 by By Lawyers

From 1 January 2018 priority notices will replace settlement notices.

Settlement notices will not be accepted at the titles Registry after 4.30 pm on 22 December 2017. If lodgement is anticipated after this date prepare a priority notice. Priority notices may be signed prior to 1 January 2018.

The publication has been updated to include precedents and commentary on priority notices.

Filed Under: Conveyancing and Property, Legal Alerts, Publication Updates, Queensland Tagged With: conveyancing, Conveyancing & Property, priority notice, settlement notice

Foreign resident capital gains withholding clearance certificates

11 December 2017 by By Lawyers

Clearance certificates will not be issued during the ATO’s Christmas closure – 22/12/17 to 2/1/18.

Filed Under: Australian Capital Territory, Conveyancing and Property, Legal Alerts, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: ATO, Australian Taxation Office, Capital gains tax, CGT, Clearance certificate, conveyancing, Conveyancing & Property, Foreign Resident Capital Gains Withholding Payment, FRCGWP

By Lawyers Obiter mailing list

7 December 2017 by By Lawyers

Hello

Obiter has been redesigned to better deliver news about our publications in line with changes to legislation, practice and procedure.

The simpler structure will allow users to tailor their preferences and only receive information about the state they are interested in. Some subscribers may be interested in more than one state.

Please note that Federal has been auto selected for all users and will include notifications about updates to the following publications:

  • Bankruptcy and Liquidation
  • Companies, Trusts, Partnerships and Superannuation
  • Defamation & Protecting Reputation
  • Employment Law
  • Family Law
  • Personal Property Securities
  • Practice Management
  • Trade Marks
  • Immigration – coming soon!

If you would like to review your notification preferences, perhaps add an additional state or deselect federal, please complete the form Subscribe to our mailing list.

We hope you enjoy the updated Obiter – bringing you legal news since 2015.

If you would like to touch base or offer feedback please feel free to email us at askus@bylawyers.com.au.

Warm regards

The By Lawyers team

Filed Under: Australian Capital Territory, Federal, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia

Domestic violence – Commentary added on national recognition of orders

23 November 2017 by By Lawyers

Commentary added on national recognition of domestic violence orders scheme

Filed Under: Criminal Law, Federal, Litigation, New South Wales, Publication Updates, Queensland, South Australia Tagged With: AVO, domestic violence, DVO, National recognition

QLD – QCAT Publication – Author updates

23 November 2017 by By Lawyers

The commentary within the QCAT Publication has been reviewed by the author and various general amendments and improvements were made.

Filed Under: Litigation, Publication Updates, Queensland Tagged With: QCAT, updates

QLD, Wills

24 October 2017 by By Lawyers

The end of a de facto relationship with a testator has the same effect as a divorce, namely, it revokes the ex-de facto’s appointment as executor of the will and revokes any benefits the testator gave to the former de facto partner under the will: new s 15B of the Succession Act 1981.

Filed Under: Publication Updates, Queensland, Wills and Estates Tagged With: de facto, executor, revocation

QLD, Estates

24 October 2017 by By Lawyers

1. Notice of intention to apply for grant – Advertising changes From 24 November 2017 notices of intention to apply for grant need only be advertised in the Queensland Law Reporter and not in a newspaper: Supreme Court Practice Direction 14 of 2017.

2. End of de facto relationship – Revocation of executor The end of a de facto relationship with a testator has the same effect as a divorce, namely, it revokes the ex-de facto’s appointment as executor of the will and revokes any benefits the testator gave to the former de facto partner under the will: new s 15B of the Succession Act 1981.

3. Stepchild includes child of party to de facto relationship The definition of a stepchild has been extended to include the child of a party to a de facto relationship, so a stepchild of the de facto testator is capable of bringing a claim against the testator’s estate as the deceased step-parent: s 40A Succession Act 1981.

Filed Under: Publication Updates, Queensland, Wills and Estates Tagged With: advertising, de facto, estates, QLD Law Reporter, revocation, stepchild

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