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Digital Assets in Your Will

Digital Assets – what happens to them?

We live in an era where our digital footprint has come to reflect more of our identity than werealise. As technology continues to advance, it is important to account for digital assets in theprocess of estate planning.

 Digital assets are often overlooked and can lead to loss of personal information andphotographs that were unable to be retained through ‘digital inheritance’. To know whether itcan be passed down in a will, it must be transferable.

Examples include:

  • Bitcoin and other forms of cryptocurrency
  • Non-fungible tokens (NFTs)
  • Domain names
  • Online account funds, e.g., PayPal
  • Money from an online shopping service, e.g., Amazon, Esty
  • Digital music files or pictures
  • Frequent flyer miles from your airline
  • Blog content or other online published works
  • Monetized video channels earning advertising revenue.
  • Online investment portfolios

Social media handles and email accounts are characterised as ‘non-transferable’ assets whichare not under individual ownership, and only temporarily licenced for personal use. Thesetherefore cannot be ‘inherited’ under a will but can be accessed if instructed to beneficiariesin an Estate Plan. [...]  READ MORE →

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Estate Planning for Blended Families

Blended families – what are the issues that arise during Estates and how can they be bypassed?

Blended families (“Brady Bunch families”) create special problems and their own challenges in estate planning. Children of past marriages need to be considered and both sets of children need their interests protected, without it impacting on the needs of a current spouse or partner.

Problems that occur from blended family estates include forgetting how assets are held, which therefore automatically pass to a joint owner, potentially creating conflict between the children of the deceased and the beneficiary, failing to distinguish giving “use” of assets to a surviving spouse during their lifetime, as opposed to an outright gift of those assets and creating dissent between the adult children of the previous marriages and the younger children of the current marriage. [...]  READ MORE →

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Guardianship of Minors and Your Will

Guardianship of Minors and your will – what do you need to do?

If you are a parent of a child or children who are under 18 years old, you should consider appointing a guardian who can look after your children in the unfortunate event of your death.

 This allows you to specify who you want to care for the welfare of your children. Our estateplanning lawyers can assist in drafting a new will or updating your existing will to appoint aguardian for your children.

 A guardian will be legally responsible for looking after the day to day needs of your children as well as making decisions about their long-term welfare and upbringing. [...]  READ MORE →

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Testamentary Trust Wills

What are Testamentary Trust Wills?

A testamentary trust will allows you to pass on assets to your beneficiaries by creating a trust, or multiple trusts, in your will. In this type of will, you nominate a trustee to administer the trust for the benefit of the beneficiaries.

There can be significant tax benefits in setting up a testamentary trust particularly for minor or vulnerable beneficiaries. A testamentary trust can also provide asset protection and be effective in protecting beneficiaries from creditors and protecting reckless spenders or intellectually impaired individuals. [...]  READ MORE →

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Notional Estate – what does it mean

Notional Estate – what does it mean?

Introduction

Will disputes, matters relating to distribution of a deceased estate, contested wills and the rights of beneficiaries are issues that an experienced will lawyer understands.

 For various reasons, a will maker may form an opinion that they are not morally obligated, or duty bound to make provision for certain persons in their will. For example, where a will maker has been estranged from their child for several years, they may not feel duty bound tomake any provision for this child.

 In the context of blended families, will makers often are faced with hard decisions about who they would like to benefit more from their estate given the competing financial needs of adult children from their previous relationship and their current spouse. Having made those hard decisions, asking an experienced wills lawyer to prepare the will or will update will lessen the risk of a successful will dispute. [...]  READ MORE →

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Financial managers and attorneys – what can happen if they act without authority?

Financial managers and attorneys – what can happen if they act without authority?

Choosing an attorney to manage your financial affairs when it is not possible to do so is a choice that requires great care. The person you choose will be able to access and use your assets as if they are their own.

While the attorney or manager can use your assets, they are still legally your assets. It does not entitle the attorney or manager to use them for their own benefit and they must only be used in your best interests.

This is one of the basic principles in fiduciary duties, a set of responsibilities undertaken by the attorney, mainly to ensure that the principal is looked after, and their best interests are accounted for. This includes being honest, keeping accounts separate and ensuring that there is a detailed record of accounts for the assets that are used, along with the reasons for them. [...]  READ MORE →

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Estate Planning and Will Disputes

Why Make Estate Planning Documents in the First Place?

Given the rise of instances of financial elder abuse, contested wills due to capacity issues of the testator, undue influence and family provision claims, is it even worth having these legal documents in place, when the potential for misuse or other legal procedures are available?

The answer is yes! Although such instances exist, the alternative is decidedly more complicated and often a longer and more expensive process.

When considering estate planning documents such as enduring power of attorney and enduring guardian documents, it is essential that the person you wish to care for you or look after your affairs has the power to do so. While the potential for abuse of this power is present, without these documents, should you become incapacitated, nobody may be able to pay your bills or sell your property should you require the funds to move into a suitable aged care facility. [...]  READ MORE →

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Power of Attorney Revoked or Renounced

When can a power of attorney be revoked or renounced?

Revocation:

In most cases, a person (the principal) who has appointed someone else to act as their attorney may revoke that power at any time if they wish, if they have legal capacity.

 However, an irrevocable power of attorney can only be revoked in very limited circumstances – for example if the attorney consents.

 A principal may wish to revoke a power of attorney for a wide variety of reasons. For example, the attorney’s health may have declined, or the attorney may no longer be suitable to act or there may have been a falling out between the principal and the attorney. [...]  READ MORE →

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Residential Aged Care Agreements

Residential Aged Care Agreements?

A residential aged care agreement is a legal agreement between a resident and the residential aged care provider. It sets out the care and services you will provide to a resident, and how much it will cost them.

The agreement needs to have the resident’s details, the provider’s details, the start date of services provided, the level of care and types of services provided. The provider must also include copies of the policies and practices used to set fees, which fees are payable by the resident and what would occur if fees remained unpaid or paid late, and the interest on such late payments. [...]  READ MORE →

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Will Disputes – Who can be a claimant?

Estate challenges and Family Provision claims – Who can be a claimant?

Those who may be able to make a claim against the estate, i.e. under a family provision claim generally are those for who the will maker were responsible for. The most common categories are as follows:

Spouses

It is recognised that the will maker has a primary responsibility to provide for their spouse and hence any spouse of the will maker, whether they are married or de-facto, is entitled to make a claim against your estate.

Children

Children are eligible to claim against a will maker’s estate, with applicants including biological children and adopted children, whether they are minors or adults. Stepchildren are not included in this category but may fall under ‘anybody else’. [...]  READ MORE →

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Property in an Estate

How is your property held and how does it affect your Estate

Real estate can be the greatest asset that a person can have in their estate, whether it be a singular or multiple properties and it is essential that you are aware of the type of ownership that applies to your own property and make estate planning arrangements to ensure that it is dealt with in an appropriate manner according to your wishes.

How the property interacts with a person’s estate is dependent on how the real estate is held or owned.

There are three types of ownership: sole ownership, joint tenants, or tenants in common. [...]  READ MORE →

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Will Makers – Coercion and Undue Influence

Coercion and Undue Influence: the impact on will makers

When it comes to elderly will makers, the first question is one of capacity, whether they are able to form a proper intention and completely understand the consequences of their wishes.

The secondary question once it is shown that an elder has capacity, is whether they have had any outside influence as to making their decision, and whether they have been coerced into making that decision through threats or reliance on another.

One of the reasons for this being that older people, while still having capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →