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Personal Succession Planning

Understanding the needs of our clients is paramount to protecting their future

Wills

Enduring Powers of Attorney

Probate & Estates

Testamentary Trust Wills

 

With an ageing population holding considerable wealth, many issues arise on the transfer of that wealth to younger generations. These circumstances are complicated by the frequency of second marriages between people having children from a previous marriage, assets held in trusts or by private companies, the ever increasing wealth in superannuation funds and complex taxation and other laws governing these issues.

At Sladen Legal we assist high-net-worth individuals and business owners in preserving and passing on the wealth that they have accumulated during their lifetime. Our approach to personal succession planning is holistic – we understand much of the wealth you control may be invested in businesses, trusts and companies and not owned by you personally.

For others, superannuation and the family home may be their main source of wealth. We work closely with each client to tailor an estate plan which will provide for the future needs of their families.

Our expertise in trusts, taxation, superannuation and asset protection enables us to develop succession plans that are robust enough to withstand challenge from third parties but also flexible enough to adapt to an ever-changing economic environment.

We provide expert guidance in the following areas of personal succession:

  • Wills
  • Structuring of simple or complex or special purpose testamentary trusts
  • Special disability trusts
  • Mutual Will agreements
  • Powers of Attorney 
  • Superannuation including binding death benefit nominations (BDBN) and pensions (link to super page)
  • Early withdrawal of super benefits to maximise capital available to pay gifts under will
  • Use of life insurance
  • Estate planning with succession of control of trusts and companies
  • Business succession planning
  • Statements of wishes to trustees and appointors
  • Minimising risk of family provision claims
  • Family agreements
  • Deceased estates and estate administration (link to deceased estates page)
  • Deceased estate litigation including family provision claims

Contact

+61 3 9611 0145

succession@sladen.com.au

 

Personal Succession News

Wills

When it comes to a will, one size doesn’t fit all

A will is one of the most important documents that you will make not just for your but for your family and loved ones also. 

Although it may seem attractive to pick up a simple do-it-yourself will kit it is extremely rare that such ‘one-size-fits-all’ documents are adequate to administer a person’s estate.  

If you are part of a blended family and do not invest time in making an appropriate estate plan, disputes can arise between former and current partners and children after you are gone. It is not difficult to think of think of well-known estate battles - Rose Porteous and Gina Rinehart following the death of Lang Hancock or Peter Brook's fiancée and his former partner and children for example. 

However, it is not just blended families and the wealthy who should make a will. Parents with vulnerable children have unique challenges to deal with in their estate plan. Planning must not only protect minor children, disabled beneficiaries or those with special needs but also balance the needs of non-vulnerable children, adult children and any surviving spouse. 

What we can do

We can assist in offering practical solutions tailored to your personal circumstances such as:

  • testamentary life interests or rights of occupation;
  • segregating superannuation between a surviving spouse and children of a former marriage;
  • setting up a:
    • special disability trust or protective trust
    • superannuation death benefits trust or pension.
  • provision for beneficiaries with special circumstances (e.g. minor children, those with a disability or in high risk occupations, those that have creditors risks or family law risks or cannot manage money)
  • Appointment of guardians for children under the age of 18 years
  • Appointment of executors and trustees
  • Alternate distributions in the event of a catastrophe
  • Asset structure including any joint assets, existing trusts, corporate structures and superannuation
  • segmenting capital
  • Restrictions on access to or distributions of income or capital 
  • Discretions are the fuel of family disputes – what to do about the family trust?
  • Addressing the problem of control: meaningful decision making while avoiding the power of one
  • advise about potential family provision claims
  • Provision for the lineal line
  • Rights of beneficiaries and interest holders
  • Obligations of trustees

Enduring Powers of Attorney

The greatest asset you can have is piece of mind

There may come a time in your life where through accident, illness or old age you are no longer able to manage your own affairs. We advise on and prepare Enduring Powers of Attorney, enabling you to appoint an attorney that can make decisions on your behalf in regards to your welfare ensuring your wishes and best interest are acted upon.

We can assist with:

  • General non-enduring powers of attorney
  • Enduring powers of attorney in respect of financial matters
  • Enduring power of attorney in respect of personal matter
  • Enduring powers of attorney (medical treatment)
  • Supportive attorney

 

    Probate and Estates

    Distributing assets to the beneficiaries of a will can be complex and challenging

    A grant of probate will often need to take place before a person’s final wishes as stated in their will can be carried out. This is a document that is issued by the Probate Office of the Supreme Court which states that the executor has proven the will is valid.

    A grant if probate can be obtained:

    • to transfer certain assets such as land (except where there is a surviving registered joint tenant who may make a survivorship application direct to land titles office);
    • if required by the asset holder, (for example, some listed companies in which the deceased held shares and banks in respect of deposits in excess of a threshold amount such as $40,000.)
    • if any claims against the estate are likely, principally claims for provision of testator family maintenance, as any claims must be made within 6 months of the date of grant of probate unless the court permits otherwise.

      Where there is no will, an application must be made to the court for the grant of letters of administration.

    An executor derives his title through the will.   Therefore, it may not be necessary to obtain probate. However, an administrator only gains his title through the grant of letters of administration. The executor may (even prior to a grant of probate) commence to get in the assets of the estate and even commence proceedings in the name of the estate.  An administrator cannot commence proceedings prior to a grant of letters, such proceedings are incompetent.

    We can assist with guiding you through the process of applying for probate and ensuring the distribution of assets is handles in the least stressful way.

    We can advise and assist you in the areas of:

    • Application for probate
    • Distribution of assets
    • Disputed estates

    Testamentary Trust wills

    Greater control, asset protection, and tax benefits make a testamentary trust an effective planning tool

    A trust sets out a structure whereby one person (a trustee), holds the title to property for the benefit of another (beneficiary or beneficiaries).

    Testamentary trusts are generally created for young children, relatives with disabilities or vulnerable persons and are also advised for people with substantial assets. 

    The benefits of creating a testamentary trust will include:

    1. the ability to enforce the wishes of the deceased in regards to how their assets are managed after their death;
    2. unique tax advantages including the way in which income is distributed to minor beneficiaries as well as benefits related to capital gains tax (CGT) and State duty; and 
    3. asset protection. Testamentary trusts can help to protect your assets when they are passed on to your beneficiaries. For example, assets are protected in the case of a relationship breakdown and can not be used in family court proceedings. Also, creditors cannot seize assets in a testamentary trust to satisfy any possible debt held by a beneficiary. 

    The Sladen Legal team are recognised by the industry’s peak bodies as leaders in the ever-changing sphere of trust law and its implications for taxation and succession planning, business and investment structuring and asset protection.

    Personal Succession Lawyers