SeniorLaw Sydney we know how important planning for the future is
to all our clients.
is not simply the drafting of a Will. It is a whole process that
looks at your present stage in life and concentrates on you, your
family and asset protection. A program is put together that will
cover your present stage in life, incapacity risk management for
the future and protection and transfer of wealth.
begins during your life, requires periodic review and can continue
long after your death.
When asked if
they have an estate plan many believe they own ‘very little’
and insufficient to warrant attention. This often disregards the
rising values of real estate, future inheritances and accumulating
planning is a process involving both the client and solicitor working
closely together. To determine your estate planning needs we have
included a trigger sheet “My estate planning goals”
for your assistance.
One of the first
steps in estate planning is taking a complete financial inventory.
We then look at your family relationships with a view to minimising
will disputes and deciding who will be the key person or people
involved in managing your affairs upon incapacity or death. The
distribution of your assets that will be included in your estate
for probate will be planned having regard to specific gifts, monetary
legacies testamentary trusts and residuary estate. No death duties
apply in NSW however the transfer of assets must be considered with
reference to capital gains tax. This is sometimes referred to as
‘death duty in disguise’!
We strive to
link your financial and family details to your estate planning goals
to create the building blocks of an imaginative and effective estate
plan for you.
all agree about the need for incapacity planning. The only issue
is usually one of procrastination. Incapacity planning should be
addressed now, and then periodically reviewed. Unforeseen events,
not always age-related, can occur depriving us of our ability to
planning can be done any time even if the person is now in hospital.
is not a question of where the person now is - the crucial element
to be assessed is whether the person has the necessary legal
capacity to make the appointment and be aware of its implications.
have been appointed by my brother as his Enduring Power of Attorney.
He knows I will choose a caring nursing home when the time comes.
you have been appointed as your brother's Enduring Attorney
this will not allow you to make lifestyle decisions for him.
While he had the necessary capacity he should have also appointed
you as his Enduring Guardian if he wanted you to make lifestyle
decisions for him as well.
has dementia but the guardianship question is simple and I will
ask his GP to appoint me as his guardian.
your Dad did not appoint you as his Enduring Guardian while
he was mentally competent you will have to make an application
to the Guardianship Tribunal to appoint you. This will involve
additional costs and further time. The family doctor cannot
make the appointment.
aunt is in a coma following a car accident and as I am family
I am allowed to help out using her finances to pay bills for
finances are held by you and your aunt jointly you are not allowed
to handle her financial affairs without your aunt having made
an Enduring Power of Attorney in your favour while she had mental
capacity. This would also require registration if real estate
am the oldest child in our family so I presume I can make the
final decision for my parents if they lack mental capacity.
is a wrong presumption. Just because you are the eldest does
not mean you have any greater rights than any other siblings.
If no Enduring Guardianship or Enduring Power of Attorney was
created then decision- making for both lifestyle and financial
issues is in the hands of the 'responsible person'. There is
a statutory order of people approved to make decisions.
Agreements are legal documents drafted to formalise arrangements
when a parent transfers property or makes payments to someone, usually
a son or daughter, on the promise of future care.
between all members of a family is desirable if considering the
move by an aged parent to a son or daughter’s home.
Many who wish
to accommodate an aged parent in their own home, rather than a residential
care facility, may require an extension to their house to be able
to do this. The level of care necessary, particularly if the parent
is frail or gradually losing capacity due to Alzeimers, can require
almost total commitment (affecting the carer’s own employment).
If the parent
wishes to sell the home and lend some of the sale proceeds to the
son or daughter who is providing the accommodation/care it may be
wise to consider putting the understanding in writing in a Family
Agreement. This enables the arrangement to be legally documented
as well as being a clear arrangement as far as other siblings are
There are many
important issues to be set out in any Family Agreement. These would
include for example what arrangements are agreed to reimburse the
carer for any outgoing expenses, what happens if the carer fails
to follow the terms of the agreement or what are the repayment arrangements
for the loan after the parent dies?
may also provide the aged parent with emotional as well as legal
security when entering this arrangement. We welcome your enquiry
if we may be of assistance.
SeniorLaw Sydney we encourage everyone to make a Will. For any person
with a son or daughter who is disabled or has special needs a Will
is an essential part of the estate plan.
If there is
no Will the statutory intestacy rules will apply.
The needs of
a person with a disability many years after the parent(s) death
may be difficult to predict. Future government policy on pensions,
community housing or large medical bills or the prior death of a
sibling may all cause upheaval.
may have left their assets to the child without a disability believing
they would be responsible for their brother/sister in care. But
what happens if the other sibling were to die prematurely or fail
in this duty? If parents failed to provide for a disabled child
an application could be made under the Family Provision Act for
the Court to intervene and make adequate provision for the needs
of the child.
scenario. Your spouse has died and you are the sole beneficiary.
You now want to update your Will and provide for your 3 children.
As one child has a severe disability you may wish to consider an
alternative to direct bequest. You may wish to consider creating
a testamentary trust in your Will which will come into effect on
your death. Under the terms of the trust a one third share could
be invested on behalf of your disabled child and your trustees responsible
for using the income to provide for your child. It would avoid any
conflict of interest if your trustee was an independent person and
not a sibling.
You may also
consider the appointment of a Guardian in your Will.
Families: What's Mine, Yours and Ours
term ‘blended family’ is not a legal term. It has come
into use to describe a family resulting from the marriage of two
people including the children from a previous marriage of one or
often both parties. The family may then be enlarged by the addition
of children from the new marriage. Blended families can also be
linked further when you consider one of the spouse’s children
from more than one previous marriage and the ex-inlaws and grandparents.
When it comes
to Will drafting and estate planning generally the blending of two
families and unrelated groups of children from prior marriages can
require creative planning. This is because when it comes to blended
families many think of the fictitious happy TV model, The Brady
Bunch. Real life situations are often far more complex. Occasionally
there is a strong wish to exclude certain ex-family members as well
as provide for other members of the family. Divorce or death of
a spouse can sometimes provide a tense background to determining
new executors, trustees or beneficiary shares in new Wills.
It is important
both spouses die together the younger will normally be presumed
to have outlived the elder and the younger spouse’s Will,
or if no Will then intestacy, may apply to distribution of assets.
This can have the effect of excluding any children of the elder
spouse’s prior marriage
a spouse died leaving part of the their estate to his current
wife and part to the minor children of a previous marriage the
inheritance left to the children may be controlled by the ex-spouse
if a testamentary trust has not been set up in the Will with
your own choice of trustee to administer it.
children are not recognised as ‘issue’ of the deceased
willmaker when applying the intestacy formula for distribution
of assets (they may however be ‘eligible’ to make
a Family Provision Act claim on the estate); ‘issue’
of the deceased includes children of a marriage and ex-nuptial
children, adopted children and A.I. and IVF children.
of successful planning for blended families can be met.
However it helps if your SeniorLaw solicitor is compassionate and
possesses an understanding of life’s ups and downs in addition
to having the requisite legal skills.
In planning for a blended family our solicitors seek to achieve
an orderly and fair distribution of estate assets to all your nominated