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	<title>Estate Planning Archives - Tony Kelly Lawyer &amp; Estate Planner</title>
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	<title>Estate Planning Archives - Tony Kelly Lawyer &amp; Estate Planner</title>
	<link>https://tonykellylawyer.com.au/category/estate-planning/cant-you-wait-till-im-dead/</link>
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		<title>What are ‘chattels’ and why are they important?</title>
		<link>https://tonykellylawyer.com.au/what-are-chattels-and-why-are-they-important/</link>
		
		<dc:creator><![CDATA[tkelly]]></dc:creator>
		<pubDate>Wed, 12 Mar 2025 22:25:21 +0000</pubDate>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Wills]]></category>
		<category><![CDATA[chattels]]></category>
		<guid isPermaLink="false">https://madli2601tkl.bc5.merket.io/what-are-chattels-and-why-are-they-important/</guid>

					<description><![CDATA[<p>In the domain of estate planning and inheritance law, one might come across the term “chattels” quite often, especially in instances where assets are distributed when someone dies without a valid will (intestacy) or when detailed instructions are stated by a willmaker for their personal belongings. It is essential to understand what chattels are and […]</p>
<p>The post <a href="https://tonykellylawyer.com.au/what-are-chattels-and-why-are-they-important/">What are ‘chattels’ and why are they important?</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>In the domain of estate planning and inheritance law, one might come across the term “chattels” quite often, especially in instances where assets are distributed when someone dies without a valid will (intestacy) or when detailed instructions are stated by a willmaker for their personal belongings. It is essential to understand what chattels are and how they are addressed in estate law, for both individuals constructing their wills and for legal professionals steering across this area of intricacy.</p>
<h5><em>What are chattels?</em></h5>
<p>To put it simply, ‘chattels’ refer to personal property or movable assets that are not land or real estate. In legal terms, chattels are tangible items that can be physically moved and transferred from one person to another, such as goods, furniture, or possessions. They are different from real property, which includes fixed assets, like land or buildings. Chattels also consist of items like jewellery, vehicles, art pieces, or family heirlooms.</p>
<p>The<a href="https://classic.austlii.edu.au/au/legis/vic/consol_act/aapa1958259/s5.html"> <em>Administration and Probate Act 1958 </em>(Vic)</a> defines “personal chattels” as including:</p>
<p>“<em>carriages horses stable furniture and effects (not used for business purposes) motor cars and accessories (not used for business purposes) garden effects domestic animals plate plated articles linen china glass books pictures prints furniture jewellery articles of household or personal use or ornament musical and scientific instruments and apparatus wines liquors and consumable stores but does not include any chattels used at the death of the intestate for business purposes nor money or securities for money”.</em></p>
<p>The main feature of chattels is how easily they can be transported, along with their clear difference from real property. The above definition also distinguishes chattels from items used in the conduct of a business. When a person passes away, the chattels they owned become part of their estate and must then be distributed in accordance to the terms of their Will or, in cases of intestacy, in accordance with the laws of succession.</p>
<h5><em>Why is it essential to know the relevance of chattels?</em></h5>
<p>Chattels possess great significance when an estate is being distributed after death, as they can have a substantial effect on the deceased person’s family and loved ones. An individual may normally leave directions as to how certain items are to be distributed, often to safeguard personal belongings, sentimental items, family heirlooms, or the like.</p>
<p>In situations of <a href="https://tonykellylawyer.com.au/dying-without-a-will/">intestacy</a>, Victorian law gives directions for distributing chattels to guarantee that personal property is justly dispensed according to the family relationships. Usually, chattels are given to the surviving spouse or children. This approach is taken to make sure that the personal items of the deceased person are passed on to those that were closest to them, or those who were most likely meant to inherit the items if there were a Will.</p>
<h5><em>Cases addressing chattels</em></h5>
<p>Numerous courts have had to identify whether specific items would constitute chattels. In the case of <em>Smith v Smith (2012)</em>, a dispute arose over a family heirloom which held significant sentimental value. The heirloom, a painting, was categorised as a chattel but such characterisation was contested by the heirs. The Court held that despite its value and significance to the family, the painting was a chattel due to its mobility. A chattel is a moveable item that is not fixed to the property.</p>
<p>Other items that are much larger and less mobile may be more challenging to distinguish. <em>McCauley v McCauley (2007) </em>addresses this issue. This case concerned a dispute over whether certain fixtures and improvements on a property, being a pool and decking, should be considered as chattels or part of the real property. The court held that these items were not considered as chattels due to their permanent attachment to the land. It was highlighted that an item that is permanently fixed to the land or a building revokes itself from being considered a chattel. The pool and decking in this case were intended to stay in place as part of the property and therefore were considered as real property.</p>
<h5><em>Bequeathing chattels to beneficiaries</em></h5>
<p>It is essential to note that a testator (Willmaker) possesses the choice to bequeath specific chattels in their Will, such as the examples mentioned previously. Alternatively, the testator has the option to refer to a non-binding list that is kept separate to their Will, outlining the distribution of the items. Granted that the list is not legally binding, it does supply direction and guidance to the executor to aid in ensuring that chattels are distributed in accordance with the testator’s intentions.</p>
<p>In many cases, clients would bequeath chattels to a group of beneficiaries, like their children, in order for them to divide between themselves. While this approach works well when the beneficiaries can easily come to an agreement on how to divide them, it is still best for the testator to provide some general guidance in order to lessen the chance of possible disputes down the line. We recommend that testators include a specific procedure as to how chattels are to be divided in the instance that beneficiaries cannot come to an agreement, such as ‘drawing straws’ to determine the order in which beneficiaries can select chattels.</p>
<p>Testators may also consider whether a beneficiary’s portion of the residuary estate should be modified according to the value of the chattels they have inherited. To give an example, if one beneficiary receives an item more valuable than the other, the testator might choose to reduce their share of the residual estate to ensure the distribution among all the beneficiaries avoids any unintended inequalities.</p>
<h5><em>Conclusion</em></h5>
<p>The classification of property as chattels is crucial for determining how items will be distributed after someone’s death. Courts look into the nature of the property and the circumstances in question. Various aspects would be considered by the Court such as the item’s use, value, and relationship to the real estate. By understanding the importance of chattels and addressing them appropriately, legal practitioners can prevent potential disputes between family members.</p>
<p>The post <a href="https://tonykellylawyer.com.au/what-are-chattels-and-why-are-they-important/">What are ‘chattels’ and why are they important?</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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		<title>Dying without a Will</title>
		<link>https://tonykellylawyer.com.au/dying-without-a-will/</link>
		
		<dc:creator><![CDATA[tkelly]]></dc:creator>
		<pubDate>Thu, 24 Nov 2022 23:49:27 +0000</pubDate>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Probate]]></category>
		<category><![CDATA[Wills]]></category>
		<guid isPermaLink="false">https://madli2601tkl.bc5.merket.io/dying-without-a-will/</guid>

					<description><![CDATA[<p>It is estimated that up to 50% of Australians do not have a valid Will in place. When a person dies without a Will, their Estate is governed by what are known as the intestacy provisions in the Administration and Probate Act. These provisions allow the Estate to be administered in the absence of a […]</p>
<p>The post <a href="https://tonykellylawyer.com.au/dying-without-a-will/">Dying without a Will</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>It is estimated that up to 50% of Australians do not have a valid Will in place. When a person dies without a Will, their Estate is governed by what are known as the intestacy provisions in the <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/aapa1958259/index.html#s70zl"><em>Administration and Probate Act</em>.</a> These provisions allow the Estate to be administered in the absence of a Will and set out the chain of entitlement to the deceased’s Estate. While dying without a Will would not leave your Estate ‘in the lurch’ indefinitely, relying on the intestacy provisions instead of making a Will may lead to unintended consequences.</p>
<h4><u>The Intestacy Provisions</u></h4>
<p>For a person who is married or whose spouse has predeceased them, and who had children with only one partner, the order of succession is as follows:</p>
<ol>
<li>Partner</li>
<li>Children</li>
<li>Parents</li>
<li>Siblings</li>
<li>Grandparents</li>
<li>Aunts, uncles or cousins.</li>
</ol>
<p>Where there is more than one person in a category (e.g. multiple children), the Estate is divided between those who survive the Deceased by at least thirty days. The exemption is where the Estate is to be divided between children and one child has predeceased the Deceased.</p>
<p>For example, say Paul had three children: Ron, Meg and Stephanie. Meg unfortunately predeceases her father, leaving two children of her own. Ron and Stephanie will each receive one-third of Paul’s Estate and the remaining third, which would have been distributed to Meg, is split between her surviving children. This may be what Paul intended or he may have wished to distribute his Estate differently; for example, Ron may have been in a poorer financial position than his sisters and Paul may have thought him deserving of additional benefit from the Estate.</p>
<blockquote><p><strong>Important: </strong>the <em>Administration and Probate Act </em>as amended in 2017 now provides that, where there are no relatives beyond aunts, uncles or cousins, the Estate is deemed to be the property of the Crown. This is different to previous provisions which allowed more distant relatives to claim the Estate. This underscores the need to make a Will, particularly if you have few living blood relatives who could inherit your Estate on intestacy.</p></blockquote>
<p>For a person who has a partner, but children from a previous relationship, the rules vary slightly. The partner is entitled to what is known as the ‘Statutory Legacy’ amount, plus the Deceased’s personal chattels, interest, and one-half of the residuary Estate (whatever is left). The Statutory Legacy amount is currently $499,210. The Deceased’s children from the prior relationship share in the other 50% of the residuary Estate.</p>
<p>Say Paul has a partner, Rose, who is not the mother of Ron, Meg and Stephanie. Paul dies with assets worth $1 million in his Estate. From the Statutory Legacy, plus the interest and the chattels, Rose will receive approximately $500,000. She will also receive a further $250,000, being one-half of the residuary Estate. Ron and Stephanie would then receive one-third of $250,000 each, and Meg’s children would receive one-sixth.</p>
<p>Again, this may accord with the Deceased’s intentions, but the intestacy provisions can lead to disappointment. In this scenario, the Deceased’s spouse is essentially receiving three-quarters of his Estate, with only a quarter to divide between his children and grandchildren. Furthermore, if a Deceased’s total Estate is less than the Statutory Legacy, their partner is entitled to the entire Estate. This leaves their children from a previous relationship with nothing, which is unlikely to be what the Deceased wanted.</p>
<h4><u>Letters of Administration</u></h4>
<p>In the absence of a Will appointing an <a href="https://tonykellylawyer.com.au/choosing-your-executor/">Executor</a>, someone must apply to the Supreme Court for Letters of Administration of the Deceased’s Estate. This is usually one or all of the people best entitled to share in the Estate (e.g. the Deceased’s spouse or children). While the process of applying is similar to that of an application for Probate of a Will, there can be additional complications. Children of the Deceased may have to provide additional documentation to prove their paternity, for example, if the Deceased and their mother were not married.</p>
<p>Situations also arise where the persons most entitled to the Estate cannot act as Administrators because they are minor children or because they are incapacitated, so another person must prove to the Court that they are the most appropriate Administrator. These issues are not insurmountable but create an additional challenge for the family of the Deceased that could have been avoided.</p>
<p>The only way to ensure your wishes are carried out after your death is by making a legally-binding and properly drafted Will. A formal Will not only gives you peace of mind, knowing your Estate is to be distributed as you have directed, but also relieves the burden on your loved ones after your death. Our experienced team can assist with preparing Wills covering a range of family scenarios, tailored especially to your situation and wishes. <a href="https://tonykellylawyer.com.au/contact/">Contact us</a> today to arrange a no-obligation meeting.</p>
<p>The post <a href="https://tonykellylawyer.com.au/dying-without-a-will/">Dying without a Will</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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		<title>‘Giving’ money to your children: a good idea?</title>
		<link>https://tonykellylawyer.com.au/giving-money-to-your-children-a-good-idea/</link>
		
		<dc:creator><![CDATA[tkelly]]></dc:creator>
		<pubDate>Mon, 26 Sep 2022 00:51:44 +0000</pubDate>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[family law]]></category>
		<category><![CDATA[loans]]></category>
		<category><![CDATA[succession planning]]></category>
		<guid isPermaLink="false">https://madli2601tkl.bc5.merket.io/giving-money-to-your-children-a-good-idea/</guid>

					<description><![CDATA[<p>When considering their succession plan and how they wish to distribute assets during their lifetime, many of our clients raise the idea of giving money to their children for the purchase of a home. With property prices remaining high and increased interest rates decreasing the borrowing power of many first home buyers, it is understandable […]</p>
<p>The post <a href="https://tonykellylawyer.com.au/giving-money-to-your-children-a-good-idea/">‘Giving’ money to your children: a good idea?</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>When considering their <a href="https://tonykellylawyer.com.au/practice-areas/business-succession/">succession plan</a> and how they wish to <a href="https://tonykellylawyer.com.au/dealing-with-your-assets/">distribute assets during their lifetime</a>, many of our clients raise the idea of giving money to their children for the purchase of a home. With property prices remaining high and increased interest rates decreasing the borrowing power of many first home buyers, it is understandable that clients wish to give their children a ‘helping hand’. Unfortunately, making gifts of large sums to your children can leave both you and your children exposed if something goes wrong.</p>
<h4><u>Relationship breakdowns</u></h4>
<p>When you give a sum of money to a child, that sum becomes an asset in their own name (i.e. legal title rests with them). If your child has used that sum to purchase a house with a partner, and the relationship subsequently breaks down, that house (and the equity in it) would likely be subject to a property settlement or Family Court orders for division of property. Some or all of the equity that you have contributed may therefore be ‘lost’ to your child’s now-former partner.</p>
<p>For example, say your son and his wife purchase a unit in Hawthorn worth $1 million. Your son and his wife contribute $100,000 each, you contribute $200,000 by way of a gift to your son and the couple take out a loan to cover the remaining $600,000. Your son and his wife subsequently divorce. Their lawyers arrange for a property settlement whereby the house is sold and the bank repaid. The remaining $400,000 in equity is then divided between the divorcing parties equally. Half of your gift to your son has therefore been ‘lost’ to his ex-wife, an undesirable outcome for both you and him.</p>
<h4><u>Creditors</u></h4>
<p>Similarly, a sum of money gifted to a child can be exposed in the event of a business failure and subsequent insolvency proceedings. Take the example above but assume your son and his wife are still together, but your son runs his own hospitality business. Market conditions force your son to close his cafe as the business is no longer solvent, with thousands of dollars in debt to his landlord and to suppliers. Some of those creditors launch a proceeding to recover such debts and the court orders that your son’s house is to be sold to make repayments. Again, the bank would be repaid first, as it has a registered mortgage over the property, and the rest of the creditors would be able to claim amounts owing to them from the $400,000 remaining. Your gift to your son could quickly dissipate in such a scenario.</p>
<h4><u>Death</u></h4>
<p>Many couples choose to own their homes as joint tenants. A joint tenancy means that, on the death of the first spouse, the surviving spouse is automatically entitled to the sole ownership of the property (regardless of the provisions of the deceased’s Will) under the ‘doctrine of survivorship’. Using the above example, if you had given $200,000 to your son to purchase a property, which he and his wife held as joint tenants, his wife would own the entire property after his death. She would have no obligation to return that sum to your family during her lifetime or in her Will, and could (for example) use the equity she received from selling that property to purchase property with a new partner. Making absolute gifts to a child can result in your ‘side’ of the family ultimately ‘losing out’ on the benefit which the provision of that sum provided.</p>
<h4><u>How should I help my children instead?</u></h4>
<p>The best method for ensuring asset protection when assisting a child to purchase a property is by lending them the money and having a proper loan agreement (prepared by a solicitor) in place. Your child does not need to make large repayments on the loan or pay interest unless you so wish. Your child can simply make a nominal repayment (any sum over $1.00 will suffice) on a specified date to ensure the loan is ‘alive’. It is our recommendation that such repayment is made on a specified date in each year as a loan can be deemed unenforceable if no repayments are made during a six year period.</p>
<p>You can then ensure your contribution to assist in the purchase of the home is protected by securing a mortgage over the property or by lodging a caveat. In most instances, security by way of second mortgage will be most appropriate as your child will likely already have a first mortgage to a bank. Should your child purchase a property jointly with a spouse or domestic partner, such partner should also be party to the loan agreement. If your child experiences a relationship breakdown, is sued or becomes insolvent in the course of business, or dies, you will be considered a creditor who can recover the amount advanced.</p>
<p>Lending money to children is an important consideration as part of your wider succession and estate planning strategy. Our expert team regularly assists clients to document such loans in a manner that is enforceable, fair to all parties and consistent with your wishes regarding your succession and estate plans.</p>
<p>If you are thinking of assisting a child with the purchase of a property, <a href="https://tonykellylawyer.com.au/contact/">contact us</a> today to discuss how to achieve the best outcome.</p>
<p>The post <a href="https://tonykellylawyer.com.au/giving-money-to-your-children-a-good-idea/">‘Giving’ money to your children: a good idea?</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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		<title>Your Death Wishes and how to record them</title>
		<link>https://tonykellylawyer.com.au/recording-your-death-wishes/</link>
		
		<dc:creator><![CDATA[tkelly]]></dc:creator>
		<pubDate>Fri, 02 Sep 2022 04:07:00 +0000</pubDate>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[Online legacy]]></category>
		<category><![CDATA[password register]]></category>
		<category><![CDATA[Wills]]></category>
		<guid isPermaLink="false">https://madli2601tkl.bc5.merket.io/recording-your-death-wishes/</guid>

					<description><![CDATA[<p>When contacting us to discuss Estate Planning, our clients are usually focused on the legal aspects of what happens after their death, such as ‘who gets what’, creating testamentary trusts, or business succession. While it is crucial to have a legally binding Will to implement those intentions, it can be equally important from an emotional […]</p>
<p>The post <a href="https://tonykellylawyer.com.au/recording-your-death-wishes/">Your Death Wishes and how to record them</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
]]></description>
										<content:encoded><![CDATA[<p>When contacting us to discuss Estate Planning, our clients are usually focused on the legal aspects of what happens after their death, such as ‘who gets what’, creating <a href="https://tonykellylawyer.com.au/practice-areas/trusts/">testamentary trusts</a>, or <a href="https://tonykellylawyer.com.au/practice-areas/business-succession/">business succession</a>. While it is crucial to have a legally binding Will to implement those intentions, it can be equally important from an emotional perspective to record your non-legal wishes. These can include funeral wishes, directions for raising your children or a list of people you would like to be notified on your death. Ultimately, these are very personal decisions that should be expressed in your ‘voice’, but our team can assist you with finding the right forum to record your wishes.</p>
<h4><strong>Memorandum of Wishes</strong></h4>
<p>A Memorandum of Wishes is a document that is stored with your Will. It is not legally binding (and should be expressed as such to ensure it does not revoke your Will) but can be used by your Executors, beneficiaries or by the Court to provide context to your Will or further instructions. We regularly assist clients to prepare Memoranda of Wishes in the following situations:</p>
<ul>
<li>Where they have chosen to exclude someone from their Will , or give disproportionate amounts to beneficiaries, and wish to explain their reasoning for so doing (which can also be produced to the Court if the Will is <a href="https://tonykellylawyer.com.au/wp-content/uploads/2022/09/litigation.jpg">challenged</a>);</li>
<li>Where their Executors/Trustees will be taking control of a Trust or business and the Willmaker wishes to provide guidance on how that Trust or business should be run; or</li>
<li>Where the Willmaker has children under the age of eighteen and has appointed a Guardian in their Will to whom the Willmaker wants to give directions as to the children’s upbringing.</li>
</ul>
<p>A Memorandum of Wishes is a flexible document and can be adapted to the individual Willmaker’s needs. We have seen Memoranda include directions such as ‘I would like my Trustees to advance funds to my grandchildren to purchase a car at the age of eighteen’ or even ‘I would like seafood platters at my wake’.</p>
<p>We can help you tailor this document to fit you and your wishes. For more information on the Memorandum of Wishes, see our blog post <a href="https://tonykellylawyer.com.au/memorandum-of-wishes/">here</a>.</p>
<h4><strong>Personal Information and Asset Register</strong></h4>
<p>As part of our service, we provide all Wills clients with a copy of our Personal Information and Assets Register, which is a document (in hard- and soft-copy) specifically tailored for clients to record up-to-date details of their property and other matters. The document includes spaces to record the contact details of individuals who should be contacted in the event of the Willmakers death, the details of any pre-paid funeral plans or burial plots, and the usernames and passwords for the Willmaker’s social media accounts. Such a document assists the Executors of the Willmaker’s Estate to carry out their wishes as well as the day-to-day running of the Estate, as the details of the Deceased’s assets are set out clearly for the Executor to ‘call in’. We regularly update our Register document to ensure it is in line with our clients’ needs and can even store a digital copy in the cloud for clients on request.</p>
<h4><strong>Organ Donor Register</strong></h4>
<p>Many of our clients wish for their organs to be donated for medical purposes after their death. While we can include such a direction in a Will, Memorandum of Wishes or Personal Information and Asset Register, it would likely be too late to implement your wishes for organ donation by the time those documents are read. We recommend that any client who wishes to donate their organs registers their intentions with <a href="https://www.donatelife.gov.au/">Donate Life</a> online. Donate Life then provides each individual with a donor card to carry in their wallet. It is also crucial that you inform your family members of your wishes as they may be called upon to make the final decision as to whether your organs are recovered for donation.</p>
<p>Please note that organ donation is a separate issue to Advance Care Directives, which deal with your wishes for the end of your life. For more information on advanced planning, click <a href="https://tonykellylawyer.com.au/blog-powers-of-attorney-2/">here</a>.</p>
<h4><strong>Digital Keys</strong></h4>
<p>As our lives become increasingly digital, clients are becoming conscious of what happens to their ‘<a href="https://tonykellylawyer.com.au/providing-your-legal-representative-with-access-to-your-online-assets/">digital assets</a>’ after their deaths. Such assets may include subscriptions and purchased content (e.g. Netflix and Spotify accounts), photos stored in the cloud (e.g. through iCloud or Dropbox) or important documents, such as those related to a business, stored in a Google Drive. Your Will may dictate the ownership of these digital assets or you may have other specific wishes for these assets, such as a playlist for your funeral or photos for your memorial booklet. You may also wish for your Executors to log into your social media accounts to place them in ‘memorial mode’.</p>
<p>To address these concerns, some providers have introduced products that allow individuals to nominate a contact who can access their account after their death through a ‘key’ or ‘legacy contact’. We suggest that our clients research their own legacy contact or digital key products as they will vary according to which services you use. While we do not endorse any specific product, <a href="https://www.washingtonpost.com/technology/2022/05/20/legacy-contacts/">this article</a> gives a breakdown of options for some popular providers such as Apple, Google and Facebook.</p>
<p>Looking for holistic Estate Planning advice, taking into account both your legal options and your non-legal wishes? <a href="https://tonykellylawyer.com.au/contact/">Contact</a> our friendly team today to arrange a no-obligation consultation at our CBD office or via videoconference.</p>
<p>The post <a href="https://tonykellylawyer.com.au/recording-your-death-wishes/">Your Death Wishes and how to record them</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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		<title>Philanthropy: during your lifetime or after your death</title>
		<link>https://tonykellylawyer.com.au/philanthropy/</link>
		
		<dc:creator><![CDATA[tkelly]]></dc:creator>
		<pubDate>Mon, 13 Sep 2021 00:57:37 +0000</pubDate>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[charity]]></category>
		<category><![CDATA[philanthropy]]></category>
		<category><![CDATA[Wills]]></category>
		<guid isPermaLink="false">https://madli2601tkl.bc5.merket.io/philanthropy/</guid>

					<description><![CDATA[<p>“Leave the children enough so that they can do anything, but not enough that they can do nothing” In a note to shareholders, US billionaire Warren Buffett expressed his belief that his children should not inherit his (almost incomprehensible) wealth following his death. Instead, he prefers that his children “pursue philanthropic efforts” both during his […]</p>
<p>The post <a href="https://tonykellylawyer.com.au/philanthropy/">Philanthropy: during your lifetime or after your death</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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										<content:encoded><![CDATA[<p>“Leave the children enough so that they can do anything, but not enough that they can do nothing”</p>
<p>In a note to shareholders, US billionaire Warren Buffett <a href="https://www.cnbc.com/2021/06/23/why-warren-buffett-isnt-leaving-his-100-billion-dollar-fortune-to-his-kids.html">expressed his belief</a> that his children should not inherit his (almost incomprehensible) wealth following his death. Instead, he prefers that his children “pursue philanthropic efforts” both during his lifetime and after it. Having a considerable ‘bounty’ to leave under your Will would seem to many to be a blessing, though it carries the risk of your wealth becoming a ‘poisoned chalice’ to your successors. You may feel that leaving some or most of your wealth to charity is a better choice, both for the independence of your children and to service a ‘greater good’. In this blog post, we cover your options should you too wish to devote your wealth to philanthropy, either during your lifetime or following your death.</p>
<h3><strong><u>During your lifetime </u></strong></h3>
<p>As addressed in a <a href="https://tonykellylawyer.com.au/dealing-with-your-assets/">previous blog post,</a> there are benefits to dealing with your wealth during your lifetime, rather than after your death in accordance with your Will. When it comes to philanthropy, two of the most relevant benefits are:</p>
<p>(a) seeing the ‘fruits’ of your bequests;  and</p>
<p>(b) putting your wealth outside of the reach of challenge by would-be beneficiaries of your Will by way of distributions to charities made as outright gifts or via a trust structure during your lifetime.</p>
<h4><strong>Outright gifts to charity</strong></h4>
<p>A simple and obvious method of charity during your lifetime is to make donations to registered charitable organisations. Donations of more than ten dollars are tax-deductible, but beware of the limitations around tax deductibility because the charity must be a deductible gift recipient for the purposes of tax law and there must be no material benefit to you as a result of a deduction.</p>
<p>There are also specific requirements for donating property (including real property or shares) to a charity in order to claim a tax deduction. This option of making a gift is most suited for those giving small and/or occasional amounts to one or more charities.</p>
<h4><strong>Philanthropic Trusts</strong></h4>
<p>For potential donors looking to channel their wealth into ongoing philanthropy, a trust established during the donor’s lifetime may be appropriate. This may take the form of a Private Ancillary Fund (PAF).</p>
<p>A PAF is a ‘vehicle for private philanthropy’ (according to the relevant legislation) and can be established by an individual, a family or a business. The PAF itself is the deductible gift recipient, meaning family members can receive a tax deduction for money or property transferred into the fund. Such donations then form the capital of the PAF which can then be invested with income distributed to charitable organisations.</p>
<p>There are specific rules that govern PAFs, including:</p>
<ul>
<li>At least one of the individuals involved in the decision-making of the PAF must be a ‘responsible person’, or a person with a degree of responsibility to the Australian community. Generally, this includes individuals who belong to a professional body with a code of ethics, such as a medical practitioner or lawyer;</li>
<li>The ‘responsible person’ cannot be a major donor or founder of the fund;</li>
<li>The PAF must make distributions equivalent to at least 5% of the value of the fund’s net asset <strong><em>each year</em></strong>, and such amount must be at least $11,000; and</li>
<li>The PAF is subject to strict reporting and auditing requirements</li>
</ul>
<p>Due to the high threshold of charitable distributions required for a valid PAF, it is only suitable for clients with a high net worth who are looking to make considerable annual contributions to charity.</p>
<p>The complexity of the law surround PAFs requires expert legal advice, so please <a href="https://tonykellylawyer.com.au/contact/">contact us</a> if you are considering establishing such a structure for yourself or your family.</p>
<h3><strong><u>After your death</u></strong></h3>
<h4><strong>Charitable bequests</strong></h4>
<p>Many of our clients, regardless of the size of their estate, choose to leave bequests to institutions under their Wills. As an outright gift, there is more flexibility in regard to the beneficiaries of the bequest as tax deductions are not relevant; for example, you could leave a gift to a sports club that is not a deductible gift recipient. Your bequest can be for the organisation’s general purposes or for a specific purpose, such as leaving a gift to a hospital for research into a particular disease. You may also choose to leave a percentage of your residuary estate (i.e., your estate after specific gifts are taken out) to a charity or charities.</p>
<h4><strong>Testamentary Trust</strong></h4>
<p>Usually, testamentary trusts (trusts established by a Will) are established for the benefit of individual relatives and their descendants. It is possible, however, to establish a testamentary trust in favour of a charity or charities. The Trust must be created for a recognised charitable purpose, or what is referred to as a ‘head of charity’, such as relief of poverty or advancement of education (though these terms can be applied broadly).</p>
<p>Using such a structure provides tax benefits to the Estate, including exemptions from capital gains tax and income tax, though such advantages must be balanced against the ongoing costs to administer such a Trust.</p>
<p>If you have a desire to make contributions to charities you must also weigh up the needs of other potential beneficiaries of your Estate to whom you owe a ‘moral obligation’. This is because if you do not adequately provide for them under your Will and instead preference philanthropy, your children (or other dependants) may seek a claim for “further provision” from your Estate by way of a legal challenge.</p>
<p>Of course, if you are in the position of a “Warren Buffett”, then a small percentage of your Estate for charitable purposes should still be sufficient to make due provision for your beneficiaries; otherwise, you may need to re-adjust the proportions of the bequests in your Will. Should you wish to make only a modest provision for your children (for example) we recommend disposing of a pre-determined proportion of your assets via philanthropic pursuits during your lifetime, as described above. Unlike in New South Wales, these assets cannot be ‘clawed back’ in a Victorian Supreme Court claim after your death because they may be treated as part of your “notional estate”.</p>
<p>Distributing wealth to charities in a way that is tax-effective and protects your Estate from claims for further provision can be complex. Our experience in advising on succession and estate planning can take the weight off your shoulders. <a href="https://tonykellylawyer.com.au/contact/">Contact us</a> today to discuss your wishes.</p>
<p>The post <a href="https://tonykellylawyer.com.au/philanthropy/">Philanthropy: during your lifetime or after your death</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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		<title>Dealing with your assets: during your lifetime or after death?</title>
		<link>https://tonykellylawyer.com.au/dealing-with-your-assets/</link>
		
		<dc:creator><![CDATA[tkelly]]></dc:creator>
		<pubDate>Tue, 31 Aug 2021 02:14:11 +0000</pubDate>
				<category><![CDATA[Estate Planning]]></category>
		<category><![CDATA[succession planning]]></category>
		<category><![CDATA[Wills]]></category>
		<guid isPermaLink="false">https://madli2601tkl.bc5.merket.io/dealing-with-your-assets/</guid>

					<description><![CDATA[<p>A recent article in the Wall Street Journal posed the question of whether parents should give their children their inheritance, in whole or in part, during their lifetimes, or wait until after death, when their assets will be dealt with according to the provisions of their Will. There are advantages to each approach, and which […]</p>
<p>The post <a href="https://tonykellylawyer.com.au/dealing-with-your-assets/">Dealing with your assets: during your lifetime or after death?</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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										<content:encoded><![CDATA[<p>A recent <a href="https://www.wsj.com/articles/when-to-give-inheritance-money-to-your-kids-11619802000">article</a> in the Wall Street Journal posed the question of whether parents should give their children their inheritance, in whole or in part, during their lifetimes, or wait until after death, when their assets will be dealt with according to the provisions of their Will. There are advantages to each approach, and which approach you choose will depend on your specific circumstances. This blog post gives an overview of these advantages; for more detailed succession and estate planning advice please contact us <a href="https://tonykellylawyer.com.au/contact/">here</a>.</p>
<h3></h3>
<h3><strong>Advantages of disposing with your assets during your lifetime</strong></h3>
<h4></h4>
<h4><u>Providing financial assistance to your children during your lifetime </u></h4>
<p>While estate and succession planning discussions entail much discussion around the most financially beneficial means of dealing with your assets, it is also important for you (and us as lawyers!) to consider your options from an emotional perspective. Making distributions during your lifetime allows you to see the benefits of your gifts to those you love the most at a time when these benefits can best be enjoyed (as compared in much later life when the additional economic freedom such assistance would have otherwise provided cannot be so readily enjoyed).</p>
<p>A client for whom Tony had prepared Wills for in 2011 recently died. At the time the Will was prepared, as part of the ‘succession plan’ for the will maker and his wife, they made a decision to lend sufficient funds to each of their children to assist them to purchase a home each. The decision to loan the funds (and not to give them the money) was to ensure if any of the children’s relationships were to break down then the capital made available would have a much better chance of not forming part of the matrimonial ‘pot’, as would have been the case if it were deemed to be a gift to the child and their partner.</p>
<p>The substantial increase in the value which each of the three homes enjoyed post-acquisition speaks for itself as to the wisdom of the parent’s generosity, which, in their case, was not without considerable financial sacrifice.</p>
<p>This asset protection can continue by stipulating in your Will that any outstanding loans are to be an ongoing asset of your estate and not necessarily forgiven on your death. The value of any such assistance during your lifetime can be ‘balanced up’ by the provisions of your Will to ensure that each of your children have been treated in like fashion.</p>
<p>Leaving sums to your children or grandchildren during your lifetime may also give you more control as to how they spend their inheritance. Many testators are worried that beneficiaries, particularly those in their youth, may dissipate their inheritance on frivolous matters such as luxury holidays or lavish weddings. Paying funds directly into important matters, such as buying your grandchild a reliable car or paying their university tuition to the university itself, may allay such concerns. Another strategy is to give them amounts when they attain a certain age to let them have experience in dealing with their financial affairs. Such a strategy can be adopted either during your lifetime or in accordance with the provisions of your Will or both.</p>
<h4><u>Avoiding family provision claims</u></h4>
<p>If you wish to exclude someone from your Will, such as a child or partner, you run the risk that the excluded person will make a claim for ‘further provision’ from your Estate. You can help to diminish (or even to avoid) such a possibility by ensuring that there is as little left in your Estate as practicable as at the date of your death to be the subject of such a challenge.</p>
<p>This strategy is assisted in Victoria, because unlike in other states, the Supreme Court in this State does not have the power to ‘claw back’ assets distributed during a testator’s lifetime for the purpose of a family provision claim, as the concept of a ‘notional estate’, where recently disposed of assets are treated as still being available for taking into consideration in such legal proceedings, is not a recognized legal concept. We therefore would recommend in certain circumstances that a person transfers some or most of their assets during their lifetimes, either into a different structure (such as a family trust) or to their beneficiaries directly.</p>
<p>One recent client wanted to avoid a claim against his estate by his son. His major asset was his home, which he wanted to leave under his Will to another family member. His son could make a challenge against our client’s Estate on his death; however, there would be little benefit in taking such an action, as we advised our client to transfer his home to his other family member during his lifetime.</p>
<p>We also assisted the client with ancillary documents to ensure his ongoing quality of life, including an agreement whereby he could continue to reside in the house after the title had been transferred to his family member until the date of his death.</p>
<p>Whilst transfers of real property during your lifetime (except to a domestic partner or Spouse) can attract stamp duty, after weighing up the cost of the applicable rate of 6% stamp duty versus the cost of litigation and the possibility of the amount of the judgement that the Court may have made in favour of the Claimant, the client and the person receiving the property decided that they would prefer to bear this cost during their lifetime.</p>
<h4><u>Superannuation</u></h4>
<p>Assets that you hold in superannuation must come out of the superannuation environment at a ‘reasonable time’ subsequent to your death. Whilst these member death benefits can be distributed after your death to your Spouse or partner or infant children tax-free, any distributions to adult children who are not classified as a “tax dependant” will be taxed at a rate of between 15% and 30%, depending on the makeup of your superannuation. If you have a self-managed superannuation fund that holds considerable assets, this could result in a large portion of your wealth being ‘lost’ to taxation after your death. However, if you are in full ‘pension mode’ (i.e. you are over 65 years of age)  you can “draw down” on your member benefits on a  tax-free basis (subject to certain thresholds) which you can then distribute (if cash) to your beneficiaries in your lifetime.</p>
<p>The benefits if the Trustee of your fund owns real estate can be considerable as the property can be transferred into your name without the need to pay stamp duty or capital gains tax and can be converted into cash as part of a plan to achieve the benefits referred to in this blog.</p>
<h3></h3>
<h3><strong>Advantages of disposing with your assets after your death</strong></h3>
<h4></h4>
<h4><u>Testamentary Trust </u></h4>
<p>Discretionary testamentary trusts (DTTs) are trusts that can <strong>only </strong>be established by a Will and not during your lifetime. A DTT has several benefits in terms of taxation and asset protection; your children can make distributions from the Trust to their children, which are taxed as if they are regular income, meaning minors who are not employed can receive up to $18,200 tax-free (as of the 2021-2022 financial year). Furthermore, if your assets are in a DTT controlled jointly by your children and one of them experiences a relationship breakdown, the Family Court would be less able (or indeed unwilling) to ‘reach inside’ the Trust for the purposes of a property settlement in fear of infringing on the other siblings’ entitlement. If you had left your children lump sums in your Will , such funds would not receive the same amount of protection in Family Court proceedings.</p>
<h4><u>Your ongoing maintenance</u></h4>
<p>Of course, unless in the unfortunate occurrence of contracting a terminal illness, it is not possible to identify with certainty the date of our death. Therefore the adoption of a succession plan (i.e. during your lifetime) which involves the divesting of assets prior to your death needs to be balanced so that you can continue living in the manner to which you are accustomed. Aged care accommodation bonds in particular are usually hundreds of thousands of dollars and you may require the sale of your home or the realization of other substantial assets to fund your transition into aged care. On your death, this succession plan becomes part of your estate plan when the bond is returned to your Estate and be held or distributed in accordance with the provisions of your Will.</p>
<p>Creating a comprehensive plan for disposal of your assets requires careful consideration and a bespoke approach. Our firm specialises in creating succession and estate plans that move away from the ‘cookie cutter’ approach where ‘one size fits all’ and are tailored specifically to address your individual wants and needs so that the provisions of your Will are indeed your ‘Testament’. If you are looking for specialist advice on when (and how) to deal with your assets, <a href="https://tonykellylawyer.com.au/contact/">contact us</a> today.</p>
<p>The post <a href="https://tonykellylawyer.com.au/dealing-with-your-assets/">Dealing with your assets: during your lifetime or after death?</a> appeared first on <a href="https://tonykellylawyer.com.au">Tony Kelly Lawyer &amp; Estate Planner</a>.</p>
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