Wills & Estates – Brazel Moore Lawyers
Gosford, Central Coast
At Brazel Moore Lawyers we understand how sensitive Estate and Will matters can be. Our experienced team can assist you with a wide range of services from the drafting of simple wills, to complex estate planning, including Testamentary Trusts and Powers of Attorney.
A deceased estate refers to the property and assets of a person who has died. This can include real estate, money, personal possessions, and other assets.
A person named as executor in a Will has the responsibility to apply to the Courts for a Grant of Probate and to administer the deceased estate. This involves collecting and managing the deceased’s assets, paying debts and distributing estate assets to beneficiaries. The role can be demanding and complex. That is why you need an experienced Estate Lawyer to assist you.
You can appoint anyone as the Executor of your Will. Most couples appoint each other as the executor of each other’s estate, with their children acting jointly as alternate executors and trustees. If children are too young to act or are not appropriate (for any reason) then third parties must be chosen as the executors or back up executors. Siblings, Family Friends or solicitors are often.
Once your executor appoints a Solicitor, the Solicitor will apply for a grant of probate. Applying for probate is a process involving an application to the Courts to certify the validity of a Will and to confirm the appointment and authority of the executor. Once probate is granted the executor has the power and authority to administer the estate.
The administration of your Estate includes, calling in all of your assets into one pool, paying our any of your debts which remain unpaid and then distributing your assets as you requested in your Will.
Deceased Estate Lawyer, Geoff Brazel has been assisting people of the Central Coast since 1981. Call now on 4324 7699.
Probate and Estate Administration
- the Will is valid
- the executor appointed by the Will has the authority to collect and deal with the assets of the estate.
- A Grant of Probate is the first step in the process of proving a Will and administering the estate of a deceased person. Grants of Probate are legal documents that enable the executor to finalise a deceased person’s financial and legal affairs.
Probate is obtained by the executor of the Will through his/her Solicitor applying to the Supreme Court of NSW seeking an order for probate.
An Application for Probate consists of a number of documents including:
- the executor’s affidavit;
- an inventory of assets and liabilities;
- A copy of the executor’s advertisement advising of the intention to apply for probate;
- the original Will; and
- a certified copy of the full death certificate.
Probate is not required to transfer jointly held assets to the surviving owner. However, probate is usually necessary if the deceased was the sole owner of real estate.
The time it takes to obtain a Grant of Probate depends on the complexity of the estate. However, the process of obtaining all of the information required to apply for a Grant of Probate can take several months.
Once all of the information is compiled and the Application is filed with the Court, it usually takes up to 10 days for the court to review it and make the grant. It can take longer depending on how busy the court is.
In some cases, the court will issue the executor with what is known as ‘requisitions’. These are questions that the Court requires answered before they are able to proceed to issue a Grant of Probate. The executor, with the assistance of their Lawyer, will need to answer these questions before the court will provide the Grant of Probate.
Geoff Brazel, Estate Lawyer and his experienced Estate Team have been assisting people of the Central Coast since 1981. Call 43247699 to arrange your appointment.
There are many things that must be considered when preparing a Will including, who will take care of your wishes under your Will, who will you leave your estate to and what if the person or people you want to leave your estate to are not around when you pass….what then??.
At Brazel Moore Lawyers, we have been assisting people of the Central Coast since 1981 take care of all of their Estate Planning Affairs.
Below are a few of the questions that we will ask you when we prepare your Will. This is a simple guide to what we need to know to make sure that your assets end up in the right hands.
- Will maker’s details, ie. name, address, occupation;
- Intention to marry;
- Spouse, children and step children details;
- Any previous spouse details;
- Executor’s details (the person you would like to take care of your estate);
- An alternate Executor;
- Your assets held in and/or outside Australia;
- Details of any business partnerships;
- Details of any Family Trusts held;
- Any specific gifts you would like to leave;
- Details of of any life insurance/superannuation policies.
Once all of these details are know we are able to prepare your Legal Will to ensure that your Estate ends up where you intended. Call Geoff Brazel, Specialist Will Lawyer on 4324 7699.
Enduring Power of Attorney
A Power of Attorney is a document a person (an Appointor) can prepare to nominate one or more persons to act on their behalf in respect of their legal and financial affairs. An Attorney named in a Power of Attorney can stand in the Appointor’s shoes and do anything on their behalf that the Appointor could do, including accessing bank accounts, buying and selling property and shares and dealing with superannuation.
An Attorney must act in the best interest of the Appointor and will be liable for misuse of the power entrusted upon them.
An Enduring Power of Attorney continues to operate when the Appointor lacks the mental capacity to make legal and financial decisions.
The appointment can begin immediately, at a nominated time or when a medical practitioner deems that the Appointor needs assistance in managing their affairs.
Attorneys can be appointed “jointly”, which means they must agree on any decision made or “jointly and severally”, meaning that one Attorney can act without the other.
In New South Wales, an enduring guardian will usually be granted the power to make lifestyle decisions, such as the medical care the donor is to receive, where the donor is to live and what kind of personal services the donor is to receive.
The appointment of the enduring guardian takes effect after the donor loses the capacity to make their own decisions. You should always seek legal advice if you intend to appoint an enduring guardian.
Call Geoff Brazel, Estate Planning Lawyer since 1981 for expert legal advice on all your estate planning needs.
Discretionary Testamentary Trusts
The provision of ongoing care and the gifting of money from your estate for a disabled child is a constant issue of concern for many parents.
Provisions in a Will gifting property directly to a disabled child or even setting up an All Needs Protective Testamentary Trust for a disabled child may prejudice their entitlement to Centrelink benefits.
Since 20 September 2006, changes to the Social Security Act, 1991 (Cth) have allowed for the creation of a Special Disability Trust (SDT). These trusts must have the sole purpose of providing for the current and future care and accommodation of a disabled person.
Key Features –
In summary, the key features of a SDT are:
- The SDT can be established during your lifetime so that it operates immediately from the time it is established;
- Alternatively, a SDT can also be set up like a testamentary trust in your Will, in which case it only operates from the time of your death;
- Trustees must be Australian residents and otherwise eligible to act as a Trustee;
- There can only be one principal beneficiary;
- The sole purpose of the trust must be to provide for the current and future care and accommodation of the primary beneficiary;
- Beneficiaries over 16 years of age must be eligible for the Disability Support Pension;
- Capital invested within a SDT (Maximum: $636,750.00 as at 01/07/2015 & indexed annually) is not subject to Centrelink’s Asset Test;
- Any income generated by that capital is not subject to Centrelink’s Income Test;
- Note that normal income tax rules apply, however, since 1 July 2008 undistributed income will only be liable to the beneficiary’s marginal tax rate rather than the top penalty rate of 49% that applied before then;
- The person with a disability may work up to 7 hours per week in open employment or unlimited hours in the Supported Wage System (SWS);
- The SDT may pay for the beneficiary’s medical expenses, including private health fund fees and maintenance expenses for assets including real estate;
- An amount up to $11,250.00 per financial year (2015/16) may be expended on discretionary items (eg holidays, furniture, etc) – this amount is indexed annually;
- Concessions & benefits for family members (grandparents, parents or siblings) contributing funds to a SDT apply – provided no more than $596,500 (indexed annually) in total is gifted to a SDT – and any gift by a family member receiving Centrelink benefits is not deemed as a deprivation of assets by Centrelink;
- This last point also means that provided the family member is of pension age but was not eligible for the Age Pension due to their assets, they can now legitimately divest themselves of assets and possibly qualify for a full or part pension;
- The capital gains tax (CGT) main residence exemption now includes a residence owned by a SDT – as long as it is used by the principal beneficiary as their main residence (introduced in 2008/2009 this has been backdated to 2006);
- A CGT exemption applies on assets transferred into a special disability trust for nil consideration;
- A CGT exemption applies where the principal beneficiary dies and their main residence is distributed to a recipient who subsequently sells the property within two years;
- A SDT must not accept any asset transferred by the principal beneficiary or their partner, unless the contribution is funded by a bequest or superannuation death benefit within 3 years of receipt of the bequest or superannuation death benefit;
- A contribution to a SDT cannot come from a compensation payment made to the disabled person who is the principal beneficiary of the trust;
- Third parties must not benefit from the trust’s expenditure. The exception is an ‘incidental benefit’ – ie, benefit of a non-cash nature that is minor and provided on an infrequent and irregular basis;
- The trustee must act in accordance with the terms of the trust – this means investing money with care, applying income appropriately, avoiding unnecessary expenses and seeking professional advice when required; and
- When the beneficiary dies, the trust terminates and the trust’s assets will vest in the residual beneficiaries as specified in the trust deed.
Tips and traps
- A SDT can be established through a Trust Deed or a Will but must contain specific clauses in order to be eligible for the concessions – it is recommended the Model Special Disability Trust Deed under the legislation be used for that purpose.
- Make sure you follow the correct steps when establishing a special disability trust as a trust will be assessed under normal rules for both social security and tax purposes where a beneficiary does not satisfy the definition of severe disability under the Social Security Act, 1991 (Cth).
- A beneficiary assessment should ideally be completed before the trust deed is prepared to avoid unnecessary set-up costs.
- Failure to meet these requirements can result in the concessional treatment of the trust being stripped, resulting in the trust being taxed under normal trust rules and potentially resulting in deprivation for immediate family members who have contributed within five years from the date of non-compliance.
- For more information, please see the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) website: http://www.fahcsia.gov.au
If you need advice in relation to special disability trusts, call Geoff Brazel, Specialist Wills, Estates and Trusts Lawyer on 43247699. Dealing with Trust Matters has been Geoff’s specialty since 1981.
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