Lawyers & Business Advisers

Estate Planning & Deceased Estates

What you need to know

Estate Planning

At Adams & Ross we can provide advice about structuring your personal affairs to facilitate the best transfer of assets under your ownership or control to the people you wish to benefit after your death.

We also provide advice to legal personal representatives and estate beneficiaries about court applications and administration of deceased estates.

Of course events occurring throughout your life may also impact upon your ability to make decisions or your ability to communicate those decisions. So at Adams & Ross we also advise about control of your assets and management of your personal affairs in the event you become incapacitated during your life.

We offer people you can trust, to guide you through the complicated legal system. With the right people on your side, you can have peace of mind and know you have the best chance of achieving a favourable outcome. That way, you can get on with your life and focus on the things that matter most.

We aim to get you on track with practical advice, delivered with proper regard to your budget and personal objectives. Your private and confidential matters are also handled with the highest discretion and you can count on us being accessible when you need us most.

Important and confidential legal matters deserve a proper degree of care and attention. You don’t want your important matters handled by an unqualified paralegal, trainee or junior solicitor. At Adams & Ross, only experienced practitioners deliver services in respect of your important legal issues.

You can also be assured of dealing with lawyers that are approachable, down to earth and communicate in plain English.

Our office is located centrally at Level 6, 269 Wickham Street, FortitudeValley and there is ample parking available in close proximity to our office.

We are also available to conduct Skype meetings online.

At Adams & Ross we offer a wide variety of estate planning and estate services to clients. While not an exhaustive list, some typical services we provide to our clients include:-

  • Drafting wills (refer below for more information)
  • Preparing powers of attorney and advanced health directives
  • Drafting trusts
  • Creating special trusts to minimize the imposition of taxes imposed on your beneficiaries when you die  (refer below for more information)
  • Creating special trusts and implementing strategies to thwart third party claims against assets you leave to your beneficiaries upon death (refer below for more information)
  • Making court applications to challenge wills
  • Making probate applications and administering deceased estates
  • Forming strategies to protect your personal assets from claims by third parties
  • Ensuring your superannuation death benefits are distributed in accordance with your wishes

 

MAKING A WILL…

What you need to know

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A Will is a legal document in which you indicate how property, that forms part of your deceased estate, is to be distributed after your death. A Will also nominates an executor, who will be responsible for finalising your affairs and making sure your wishes get carried out.

Wills range from being very simple, through to highly complex documents containing sophisticated trusts. Your personal circumstances, the size of your anticipated estate and the profile of your intended beneficiaries will determine the type of will you should have.

Complex wills, containing sophisticated trusts (known as testamentary trusts) are often used to

(i) substantially reduce the tax payable by beneficiaries of the estate assets and
(ii) keep a beneficiary’s inheritance in the family, out of the reach of third parties such as their estranged spouses and creditors.

It is also important to understand that certain property you own or control does not form part of your deceased estate when you die. Those assets can’t be transmitted to your preferred beneficiaries through your will. Such assets often represent a substantial portion of the property you own or control throughout your life. Some examples of assets that may not necessarily form part of your deceased estate include

(i) your share of any real estate you own with another person as a joint tenant,
(ii) your superannuation death benefits; and
(iii) assets held in a family trust.

A lawyer experienced in wills and estate planning will ask the right questions to understand your personal situation and ensure

(i) preparation of a will that’s right for you,
(ii) all property under your ownership or control is dealt with in accordance with your wishes (whether through your will or some other means) when you die and
(iii) appropriate strategies are considered, if applicable, to minimise the impact of potential challenges against your estate.

 

TESTAMENTARY TRUSTS

A testamentary trust is a special type of trust established by a will. The trust comes into effect upon the willmaker’s death and the terms of the trust are contained within the will.

It is possible to create more than one testamentary trust in a single will; it is often advisable to establish a separate trust for each beneficiary.

How does a testamentary trust work?

When a person receives their inheritance pursuant to a standard will, they receive the gifted assets into their own name and upon that distribution occurring, the beneficiary has personal ownership of the gifted assets.

Where a testamentary trust is created, however, the legal title to the gifted property passes to a trustee. The trustee then holds this property on trust for the benefit of the testamentary trust beneficiaries chosen by you.

Who is the trustee?

As the testator, you are responsible for choosing the trustee of the testamentary trust. It is possible to create a trust where the intended beneficiary of the property is both trustee and a beneficiary.

Advantages of Testamentary Trusts

There are numerous advantages to establishing a testamentary trust in your will. Depending on your personal circumstances, these may include:

(i) Flexibility

Testamentary trusts are often set up as discretionary trusts. This means the trustee is given discretion to distribute the capital and income of the trust property as they see fit. This flexibility allows your trustee to take the individual circumstances of your beneficiaries into consideration when deciding how your estate should be distributed. As a result, the future needs of your beneficiaries are more likely to be met.

(ii) Taxation Benefits

There are two key taxation benefits associated with establishing a testamentary trust. Firstly, your beneficiaries may be able to reduce their personal income tax by splitting investment returns in a tax-efficient way (e.g. splitting returns between family members to fully utilise each person’s tax-free threshold). Secondly, considerable tax benefits are available for minors (i.e. children under 18 years). Where there is an ordinary family trust, minors currently have a tax-free threshold of $416 and are then taxed at the highest marginal rate of 45%. Where a testamentary trust is created, however, minors are entitled to a tax-free threshold of $18, 200 and are then taxed at the normal adult marginal rate.

(iii) Asset Protection

Testamentary trusts are also a highly effective method of protecting your assets; they allow you to ensure that your property remains within the family and is only used to benefit your family members. Asset protection becomes particularly important where you have concerns regarding: (i) beneficiaries becoming bankrupt; (ii) beneficiaries becoming divorced and subsequent asset division; (iii) mismanagement of assets by children and (iv) providing for handicapped or intellectually disabled children. By creating a testamentary trust, you ensure that your assets do not form part of your beneficiary’s general pool of assets. This means that they are not available to potential creditors.

(iv) Longevity

A testamentary trust can continue for up to 80 years after the testator’s death. As such, it is possible for you to make provision for several future generations.

At Adams & Ross, our firm’s principal, Tony Pereira has been practising in the area of wills and estate planning for over 20 years. We welcome the opportunity to assist clients in this complex area of the law. We also operate a low overhead business model, allowing us to offer our services at great prices, without compromising on the quality of our advice and documentation.

To learn more about our estate planning and deceased estate services, phone Tony Pereira on (07) 3333 2920 for a confidential discussion about your requirements.