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Wills – Special disability trusts

20 June 2018 by By Lawyers

A special disability trust can be established to specifically provide for the care and accommodation of a family member with a severe disability. If compliant with the statutory requirements it will allow the disabled beneficiary of the trust to retain their full pension entitlement. There are also generous concessions for contributions to a compliant special disability trust.

Along with the recent addition of special disability trusts to By Lawyers Companies, Trusts and Partnerships guide, our Wills guide now also includes detailed commentary and precedents covering special disability trusts.

A special disability trust can either be established in the will, or a direction can be given in the will for the executor to establish a special disability trust from the estate as required. Which option is chosen will depend on the client’s wishes and family circumstances. The Library of discretionary trust and special disability trust clauses in the By Lawyers Wills matter plan contains appropriate clauses for insertion in the will.

It also includes the By Lawyers Special Disability Trust Deed, which fully complies with the legislative requirements.

The new commentary covers everything a practitioner needs to know about establishing a special disability trust for their clients, including:

  • beneficiary eligibility requirements;
  • contribution and concession guidelines;
  • the permitted use of special disability trust funds; and
  • three ways the testator can provide for a disabled beneficiary via a special disability trust:
    • establish the trust inter vivos by deed and provide in the will for a bequest to the trust;
    • establish the special disability trust in the will; or
    • direct the executor of the will to establish the special disability trust, either with or without separate testamentary discretionary trusts.

 

Filed Under: Australian Capital Territory, Federal, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: beneficiary eligibility, executors, inter vivos by deed, severe disability, special disability trust, Wills

Electronic conveyancing – Are you ready?

19 June 2018 by By Lawyers

As the timeline towards mandatory electronic conveyancing marches on, By Lawyers continues to make changes to our matter plans and precedents to make sure that you are ready and that completing your matters electronically is as easy as possible.

Our matter plans have been split after ‘Mid transaction’ into ‘Paper transaction – Through to settlement’ and ‘Electronic transaction – Through to settlement’.

Precedent letters have been updated and where necessary new precedents included to cover electronic transactions.

By Lawyers helps you make a seamless transition to the new regime.

Filed Under: Conveyancing and Property, New South Wales, Publication Updates, Queensland, South Australia, Victoria, Western Australia Tagged With: conveyancing, Conveyancing & Property, e-conveyancing, e-settlement, electronic conveyancing, electronic settlement, PEXA, purchase, sale

Wills – Additional clause – direction to executor regarding disposal of body

13 June 2018 by By Lawyers

All By Lawyers wills precedents have been updated to include a clause that directs the executor on the testator’s wishes for their remains. This clause is automated  for LEAP users.

Where the instructions are more detailed, the Burial, Cremation, Medical Research Provisions clauses from the Library of Clauses, Deeds, Contracts and Codicils are also available.

Our Retainer Instructions already include a section for burial, cremation and medical research, so that the testator’s wishes can be discussed and recorded.

Filed Under: Australian Capital Territory, Federal, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: burial, cremation, disposal of body, medical research provisions, remains, Wills

Wills – Testamentary discretionary trusts

31 May 2018 by By Lawyers

The commentary on testamentary discretionary trusts in our Wills publications now has a more in depth discussion of:

  • the benefits of testamentary discretionary trusts;
  • when a testamentary discretionary trust is appropriate;
  • family trust elections.

There are several By Lawyers precedent wills which create testamentary discretionary trusts for individuals and spouses, as well as a library of testamentary discretionary trust clauses. These precedents can be used to establish a single testamentary discretionary trust for all assets and beneficiaries of the estate, or multiple testamentary discretionary trusts for specific beneficiaries. They can also be used to establish additional testamentary discretionary trusts to provide protection for specific assets such as quarantining a family business or to allow for the particular needs of an individual beneficiary due to say drug addiction.

Filed Under: Australian Capital Territory, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: estate planning, family trusts, income distribution, inter vivos, tax free thresholds, testamentary discretionary trust clauses, testamentary discretionary trusts, Wills

Conveyancing – GST withholding – additional commentary, amendments to contracts and precedents

7 May 2018 by By Lawyers

The requirement for purchasers to withhold and remit GST on taxable supplies of certain real property under subdivision 14-E Schedule 1 Taxation Administration Act 1953 comes into force on 1 July 2018. This applies to all contracts that settle after 1 July. The transitional arrangements are that contracts entered into prior to 1 July 2018 and settle before 1 July 2020 are exempt from the withholding regime.

The sale and purchase commentaries in all states have been updated, the By Lawyers contracts in NSW and VIC have appropriate new provisions and precedent letters are being updated.

Filed Under: Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: By Lawyers contract, conveyancing, Conveyancing & Property, gst, gst withholding, purchase, sale

Wills retainer instructions – All states – Burial, cremation and medical research details

26 March 2018 by By Lawyers

Retainer instructions in all states – for individuals and couples – have been enhanced with the addition of burial, cremation and medical research client details.

For instance, does the client wish to:

  • detail funeral service arrangements;
  • detail wishes regarding burial or cremation of their remains; or
  • make provision for ongoing cemetery or crematorium fees?

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

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

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

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

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