Trusts & Estates
We offer personalised and cost effective advice on managing and protecting your assets and succession matters.
If done correctly, trusts offer an effective vehicle to:
protect assets for family members
ensure that a specific asset (e.g. a holiday home) is kept within the family
protect assets from Family Protection Act claims
protect assets from potential creditor and business claims
ensure that some assets are retained within the family when a family member requires rest home or hospital care
manage assets for a family member that cannot (e.g. disability).
It is important to note that a trust cannot be set up with the primary objective of achieving any of the above benefits. In fact, the law prohibits you from transferring your assets to a trust to defeat creditors, avoiding asset or means tests and/or reducing your obligation to pay tax. An analysis of your particular circumstances will need to be undertaking when considering if a trust is beneficial for your family, asset protection and tax situation.
Enduring Powers of Attorney
An enduring power of attorney (“EPA”) gives the attorney the right to legally act on your behalf if you become mentally incapable. You must be at least 18 years old and mentally capable when you sign the documentation.
There are two types of EPAs:
Property EPA – gives your attorney the legal right to act on your behalf in regards to your and property financial affairs e.g. property, business, bank accounts, shares and all other possessions etc.; and
Personal Care and Welfare EPA – gives your attorney the right to make legal decisions about your personal care in the event of your mental incapacity e.g. what sort of medical treatment you should receive or whether you should go into care etc. A personal care and welfare EPA only comes into effect when you become mentally incapable.
It is important that any EPA is well drafted and sets out any conditions and restrictions on how your property should be dealt with or what you would like to happen in regards to your personal care.
Power of Attorney
Under a general power of attorney, you appoint the attorney to legally act on your behalf in relation to:
all of your affairs (e.g. the attorney can deal with your bank accounts and any property you own in your name); or
specific matters (e.g. it is common for children to appoint their parents as power of attorneys for the child’s bank account prior to departing on their big OE).
A general power of attorney is only valid while you have the required legal capacity. If you want an attorney to legally act on your behalf if you no longer have the capacity to manage your own affairs, you need to arrange an enduring power of attorney while you still have legal capacity.
A Will is important document as it contains your wishes after your death in terms of:
distributing your money and assets
leaving special gifts (e.g. jewellery)
naming guardians to look after your children
A Will sets out your wishes and minimises the emotional stain on your family. If you do not have a Will (or a valid Will) on your death, your family will need to make an application to the Court for your assets will be distributed under the Administration Act 1969. Generally speaking, your assets will be distributed to your surviving spouse or partner and family in set proportions. If you do not have any relatives as defined in the Administration Act 1969, then your assets will be transferred to the Government.
It is wise to update your Will on a regular basis to take account to any change in circumstances. For example, if you marry - your previous Will will be automatically revoked unless there is a provision to the contrary in the existing Will. In addition, an up-to-date and well drafted Will will minimise the likelihood of it being challenged.
Unless your estate is under $15,000 (e.g. the value of bank account funds, life insurance, shares etc.) and does not include any interest in any land, the executors will need to apply to the Court for “Probate”. Probate is a court order which allows the executors to administrate your estate. We can assist the executors through the process from the application for Probate through to distribution of the estate to the named beneficiaries.