In protecting and preserving property and assets, one must consider a number of issues and strategies, which include asset protection, taxation, superannuation, and estate planning.
WILLS & TESTAMENTARY TRUSTS
A fundamental part of any estate plan is to determine how the property and assets included in one’s estate are owned currently, and should be owned in the future. This is crucial if there is any risk of exposing property or assets to possible third party claims.
A Will is the legal written disposition that takes effect on one’s death. The Will allows one to choose which beneficiaries will receive the property and assets and which executors will carry out the various directions. By failing to exercise this right to make the Will, one loses the ability to make those choices and no strategy or plan is in place for the estate. The estate plan must ensure there is provision for the care and upbringing of any children or other dependants. One can retain the right to choose guardians to take care of children until they become adults, however, this right is lost one does not create a valid Will.
One keeps control over who inherits the property and assets; and imposes any conditions on the right to, and use of, the property and asset by creating tax effective testamentary trusts in the Will that benefit and take into account the circumstances of family or other beneficiaries.
A comprehensive estate plan means there are effective written instructions for the Executor, which minimizes disputes and maximise savings for the estate. The estate plan ensures one’s affairs are in order and according to one’s personal choice. This personal choice does not exist if there is no valid Will, and important issues about property, assets, and distributions are left to interpretation of statutory formulas. These formulas do not look at one’s personal likes, dislikes, circumstances, financial plans, or taxation.
One must regularly review the Will to ensure it maximizes the intended benefits to the beneficiaries as numerous situations can affect or change one’s lifestyle and future intentions. There are a number of legal requirements governing the validity of Wills and Testamentary Trusts, such as:
c) Divorce and Separation
d) Testamentary Capacity
e) Written contents of the Will and its interpretation
f) Execution of the Will
g) Financial planning aspects of the Testamentary Trusts
The Supreme Court becomes involved when disputes or doubts arise on any of these issues, and will determine the validity of the Will. If the Supreme Court rejects the validity of a Will, there will be undesirable consequences for the estate. Part of the estate plan is not to leave anything or the Will to chance and to invest serious time and effort in planning and obtaining good advice on every aspect of the estate plan.
NEED MORE INFORMATION
Behan Legal assists and advises on these important issues. For an appointment, call 03 9646 0344