Estate Planning and Wills


Build these Estate Planning documents online Price
Estate Planning Bundle (Recommended) – 3G Testamentary Trust Wills, Enduring and Medical POAs  (free updates for life)
Last Will and Testament – reduces the 4 defacto death duties & 32% tax on your superannuation

$495 – $975 (free updates for life)
Enduring Power of Attorney – stop government meddling, every Australian state & territory

$128 (free updates for life)
Medical POAs, Guardianships, Directives & Medical Treatment Decision Maker  – lifestyle in each state

$128 (free updates for life)
Company Power of Attorney – for insane, missing and dead directors

$678
Free Online Training Courses
Estate Planning Training Course – Free
Protecting Vulnerable Children in Wills Training Course – Free
Advisers, Licensees and Accounting Practices – Quality Assurance Price
Standards & Accreditation – for building Estate Planning documents on our law firm’s website $1,480

 

Build additional Estate Planning documents online Price
Contractual Will Agreement – for second marriages $575
Spouse Loan Agreement $683
Loans to Children – override Family and Bankruptcy Courts $683
Loans to Parents $683
Forgive a Debt Agreement – also gets rid of Family Trust’s UPEs $440

Deed of Gift – survives your death

 $345

Who controls the Family Trust at death? – succession planning

 $1,100
Who gets your Self-Managed Superannuation at death $440
Reversionary Kit for an SMSF keeps super going when you die $440
Vest and get rid of a Family Trust $444
Vest and wind up Unit Trust $550
Vest and wind up old Self-Managed Superannuation Fund $585
Death Taxes
Divorcing children
Vulnerable children, minors and spend-thrifts
Second Marriages
Signing and Protecting Wills
Power of Attorney (POA)
Succession and Estate Management
Overseas assets and beneficiaries
Funerals, wish lists and setting up trusts in your Will after you die
Specific Gifts and Testamentary Instructions

 

What happens if we all die together?

Q: What happens if we both die and all our children die with us?

A: I assume that you have young children that travel with you. The car could roll over and you and your spouse, together with your children all die together. When you have young children select ‘yes‘ to the Disaster Clause question as you build your Will. Read the hints on this topic as you build the Wills. 

Put in a Disaster Clause. For example, you leave 50% of your assets to your side of the family. And the other 50% to your spouse’s side of the family. For example:

  • Your Mum: 25% Your Dad 25%, Your Mum-in-law 25% and Your Dad-in-law 25%; or
  • Your cousins – 50%, Your spouse’s nephews and nieces – 50%
How does a bloodline gifting clause work?

As with most Australian Wills, all Legal Consolidated Wills have a ‘blood line-giving clause’. (The Latin expression is ‘per stirpes‘ – down the bloodline.) This is where, if a person dies before you then what they would have got goes to their children. So, for example, if your child has died before you and they have children then what your child would have got goes to their children. For example:

Dad and Mum die. They leave everything to their two children: Mary and John. Sadly Mary died many years ago leaving behind Ross and Ken (your grandchildren). What Mary would have got now goes, in your Will, to your grandchildren Ross and Ken.

(If Mary died never having had children, then her brother, John, inherits everything. The money goes ‘back to the pot’ for John.)

What happens when all the beneficiaries in the Will are dead?

So you are dead. Your spouse is dead. Your two children die before you. And your three grandchildren die before you? I assume you are in some type of war zone! If you die and your beneficiaries are dead then your Will fails. And your assets go to your next of kin, distant relatives or the Australian government.

If your beneficiaries start dying off during your lifetime then update your Will. You can update your Will for free, as often as you wish. Just email us the Tax Invoice and we will email you a voucher to update your Will.

But you may not be able to update your Will. You may forget. You may be of unsound mind. So best to put a Disaster Clause into your Will, especially if:

  1. your children are young and you travel with them
  2. your beneficiaries are all older than you, such as your parents
  3. you and your entire family live in a war zone

What if Mum and Dad die together?

Mum and Dad only have one 12-year-old child. Their backup Executors are the child, an uncle and an aunt. The child is probably in their 60s when Mum and Dad die. In that instance, the uncle and aunt are likely to renounce their positions as executors (they may be dead themselves). But what happens if Mum and Dad both die today? In that sad situation, the only Executors are the uncle and aunt. The child cannot be an executor because the child has not yet turned 18.

Alias names and changing address

Wife still uses her maiden name. How do I deal with alias names in a Will?

Q: As an accountant, I am completing the data entry for their Estate Planning bundle. She is legally married. But still goes by her maiden name. She intends to change everything to her married name in the next 6-12 months. How do I enter the data for her Will on this basis allowing for the future name change?

A: We have been preparing Wills since 1988. I author the two main Australian textbooks on estate planning. Whenever we get a new question (this is not a new question) we put up another hint. For all our documents you can start the building process for free. There you will discover a new world of enlightenment. As a Professor in a law school, my life is one of education. Just press the “Start for free” to build your desired document. And your education begins. Enjoy this free service.

1. Address changes after I sign my Will and POAs?

An advantage of Legal Consolidated Wills, POAs and all our legal documents is that if:

  • your address changes in your Wills, POAs or any other legal documents; or
  • the addresses change for your executors, beneficiaries, attorneys in your POAs, attorneys and other parties in any contract

then you do not need to update your Wills, 3-Generation Testamentary Trust Wills, Enduring POA or Medical Lifestyle POAs. Your estate planning documents remain valid even if addresses change.

2. Address changes before I sign my Will and POAs?

Your address, your attorneys, your beneficiaries and your executors’ addresses must be correct at the date of signing.

What if an address changes before you get a chance to sign the Estate Planning document? Don’t waste your time signing out-of-date Wills and POAs. Update the Will or POA before you sign. You can update your Wills and POAs as often as you wish. This is for any reason for the rest of your life. Just email us your Tax Invoice. We email you a voucher to update your Wills and POAs.

My daughter’s name and address have changed. Do I need to update my Will?

Will makers and their beneficiaries move addresses all the time. Legal Consolidated Wills are designed so that if anyone changes their address you do not need to update your Will.

Similarly, if your daughter gets married or divorces and changes her name you do not need to update your Legal Consolidated Will.

Of course, you can update your Legal Consolidated Wills and POAs as often as you wish. For free. This is for any reason. But you do not have to update your Legal Consolidated Will if addresses change.

However, if a Will maker changes their name then they may need to update your Will. Telephone us and we can discuss it with you.

What happens to mortgages when I die?

Q: What happens if, when we die, there is still a mortgage attached to the properties? If we were to die soon, each house would have a $400k mortgage. Most of this ($300k) could be cancelled out using the equity from our primary residence, but what happens if there is some debt left over? Should we try to make sure there is enough cash/ insurance to wipe it out? Given there would be a lot of equity (the investment property plus half the primary residence) for a small residual debt ($100k), would the banks allow the girls to borrow to cover that debt, paying off the borrowings over time? 

A: You should address this question to your beneficiaries – your children. They, themselves, make the decision as to what they do with ‘their’ new assets and debts. Usually, the executor pays out all debts first. And then transfers the properties (or whatever is left) to the beneficiaries.  The net value goes to the children. The children can keep on selling assets, perhaps one of the properties to, keep reducing debt. Or a child can seek to take out a loan. I don’t know. Ask your children and they will answer this question.

Death is a default under the loan

Death is a default on the loan and the bank can demand payment within (usually) 7 days. This is unless you can rectify the default. But it is hard to come back from the dead!

The children are entitled to seek to borrow money, secured against their new assets if they wish.

I think it is a very good idea to speak to your financial planner and accountant about taking out insurance. You may also be able to do this in your superannuation fund. This often makes insurance premiums more tax-effective.

Your question suggests that you have a house for each child. That is all rather nice. But it is often the case the child no longer lives in Australia. Or does not want that particular house. In any event, you will be happy to know that because you have 3-Generation Testamentary Trust Wills your children can move the assets around. Each can have their own property. This is without triggering Capital Gains Tax or transfer (stamp) duty. You also have a Divorce Protection Trust in your Will so your assets are protected when your children, grandchildren and great-grandchildren divorce.

Family Trust and Wills

Family Trusts vs Wills – never the twain shall meet

Family Trusts have nothing to do with Wills. And Wills have nothing to do with Family Trusts. They have separate laws and tax rules. A Will gives away what you own. In contrast, you don’t ‘own’ the assets in your Family Trust you merely control the assets. To put in place a succession plan for a Family Trust build a “Deed of Variation to update the Appointor“.

Most of my assets are in my Family Trust

Q: My understanding is that the beneficiary’s spouse can claim the assets in my Family Trust. This is after I am dead and my child divorces. This is because such assets are not held by the trustees of the 3-Generation Testamentary trusts contained in my Will. And therefore are not protected by the Divorce Protection Trust.

It is difficult to move my assets from the Family Trust into my name or into my deceased estate. This is because of stamp duty, CGT, Unpaid Present Entitlements and Division 7A. It is also not good for asset protection.

Also, if you distribute the assets of the Family Trust, after I am dead, into my deceased estate then my Testamentary Trust loses the tax-favourable status for minor children. This is under section 102AG Income Tax Assessment Act.

However, in my case, the Family Trust has a company as the corporate Trustee. I own the shares in that corporate trustee. And, therefore, obviously, the shares in the company go into the Will. This is when I die. But that does not help me, either. This is because the Appointor in the Family Trust can sack the corporate trustee.

My last option is that I get my children’s spouses, as they come and go, to sign Binding Financial Agreements. Obviously, that only works while I am of sound mind and can keep changing my Will. Also, it seems that Binding Financial Agreements do not work anyway.

A: You are correct. It is almost impossible to fight the Family Court. Consider:

  1. somehow getting your wealth out of the Family Trust into your name, before death. Then it goes into your 3-Generation Testamentary Trust Will. And is then protected by the Divorce Protection Trust.
  2. changing the Appointor clause in the Family Trust.

And do not forget the Unpaid Present Entitlements. This is money owed by the Family Trust to a beneficiary. If you are owed money by the Family Trust then this money belongs to you. It obviously then gets into your 3-Generation Testamentary Trust Will.