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Category: Wills
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- When it can’t be decided who died first, the law presumes people to die in order of seniority (ie. eldest first). This may mean that the assets of the elder pass to the younger and then to the beneficiaries of the younger.
- If two people own an asset as joint tenants (the other form of joint ownership is called ‘tenants in common’) then a rule known as ‘survivorship’ applies. This rule means that when one dies, it automatically passes to the other, regardless of what the first persons will said. If they both die together, it passes to the younger and then to the younger’s beneficiaries.
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- When a beneficiary dies before the person making the will, the benefit ‘lapses’. This means it will pass to the person who was to receive the ‘residue’ of the estate. If there is no ‘residue’ clause, this will be the person(s) who would get it on intestacy.
- However, if the person who was to receive the benefit is a child of the person making the will and they have children of their own (grand children) their share passes to their estate (which may or may not mean the grand children).
- When a beneficiary dies after the person making the will, their share is part of their estate and will pass to their beneficiaries, even if they haven’t received the funds from the first estate.
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- The Supreme Court now has power (since 1989) to give effect to any document that appears to have the intention to be a will. Evidence can be given of statements of the deceased about their intentions.
- The case of the famous painter Brett Whiteley is an example of this where the Supreme Court accepted evidence by a witness to a handwritten will of its contents though it could not be found.
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- Depends who sold it. If your uncle sold it himself, you are out of luck. If it was sold by his ‘Power of Attorney’ or the Protective Commissioner then you are entitled to the proceeds of sale, if you can prove where they went.
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- Make a new will. A standard clause in a will says ‘I revoke all previous wills‘.
- Destroy the will or write cancelled on it. You need to have the original for this. The destruction must clearly be with the intention of revoking the will, not just accidental.
- you can direct someone else to destroy the will but it must be done in your presence. It is not sufficient to ring your solicitor and tell him to destroy it.
- by some writing (ie. a letter) that is signed in the same manner as a will (with 2 witnesses etc).
- You can’t authorise someone else to revoke a will after your death.
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- Only marriage will cancel a will but circumstances change and this means your will might need to change too. If you loose a spouse or child then you should review the will.
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- the general rule is that marriage cancels a will so you now have no will – if you died without making a new will, the rules of intestacy would apply to you.
- The exception to the rule is if the will is made ‘in contemplation of marriage’. It is best if these words are stated on the will but the terms of the will or surrounding circumstances may show that marriage was being considered in making the will.
- Divorce does not invalidate a will but such ex-spouse is dealt with as if they had died before you. If you want to provide for an ex-spouse the will would have to be very specific. I suggest words like ‘This clause is intended to apply even though I have divorced …’
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- A Testamentary Trust is any trust created by a will.
- The term is also used to refer to a trust created with money that came from an estate.
- It is common in a will to make gifts to children. They might be your children or grandchildren. If these gifts are invested and earn interest, this interest will be income in the child’s name. Normally a child (under 18) is only allowed to receive $416 per annum unearned income before paying tax at the maximum rate. This rule was introduced a few years ago to stop high income earners splitting their income through family trusts into their children’s names. However, there is an exemption to this rule. If the trust income comes from assets left by an estate, then the normal tax rates and exemptions apply.
- this means that the first $6,000 is tax free and the progressive rates of tax apply to the balance. The savings can be substantial.
- you must have an estate of sufficient size to justify setting aside funds for infant beneficiaries and still provide for adult beneficiaries.
- the exemption can also apply to funds you have placed into a trust for children when the funds have been left to you from an estate. There are more restrictions on this type of trust and the funds must be put into the trust within 3 years of the death. Also limits on the amount of benefit apply.
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- They are paid by selling your assets. This is the job of your executor.
- The executor has to determine what are your assets and what are your debts. He/she must sell your assets, pay your debts and distribute the balance according to your will.
- your home may have to be sold to pay your debts unless there are other assets available.
- As part of an application for probate, your executor is required by law to advertise that he is going to apply for probate or your estate and invite people to make claims in your estate. The solicitor would normally arrange this advertising. If you look in the legal pages of the Sydney Morning Herald you will see such ads.
- if your debts exceed your assets, they can’t be paid. Your next of kin are not responsible for your debts (unless they have guaranteed them somehow).
- your executor is personally liable for any income tax you owe.
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- It depends on what assets are in the estate. If the deceased controlled a business which has therefore passed to the estate, then the estate needs to register for GST and put in returns etc. Legal fees of administering the estate will be liable for GST. If real estate is to be sold, the agent commission will be liable for GST. The matter will need to be looked at by your lawyer at the time.