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Real Estate in Estate Planning

How is Real Estate dealt with in Estate Planning and Estate Administration?

Real estate, or Real Property is land (with or without improvements) owned by one or more persons and is an asset that must be considered when dealing with a deceased estate. There are three types of real estate ownership: sole ownership, joint tenants, or tenants in common.

Each type of ownership has a different impact on how a deceased estate must be handled and requires different estate planning approaches to ensure that your interest in the property is transferred in the manner you wish.

Sole Ownership
Sole ownership over a parcel of property is exactly how it sounds: a single person owns the entirety of a property. If you wish to gift the property to someone in your will, it is important that estate planning measures are taken to ensure that interest in the property is transferred to the preferred. If the transfer of interest is not specified in your Will, your property may be sold by the Executor and the proceeds form part of your estate. This could cause hardship to your relatives and loved ones if they are depending on receiving the property. [...]  READ MORE →

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Can I include my superannuation in my Will?

Your superannuation can be one of your largest assets and accordingly it is important that your estate plan reflects your wishes on how you want this to be distributed after your death. Unlike your other assets, your superannuation is not usually covered by your Will. The reason for this is that your super is held in trust for you by the Trustee of your super fund.

This means that you should consider the different options available to you to ensure your superannuation is distributed in accordance with your wishes. It is always advisable to seek advice from an estate planning lawyer on which option will be best suited to your needs. [...]  READ MORE →

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Is my sibling entitled to more inheritance than me?

In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.

An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.

One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will. [...]  READ MORE →

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I don’t have a Will: what are the consequences?

Without creating a Will or contacting an Estate Planning Lawyer to assist in creating a Will, your estate may be inherited by people you may not wish to benefit from your death. According to the Succession Act (2006) The hierarchy for relatives receiving the estate is as follows:

  • Spouse
  • Children of the deceased
  • Parents
  • Brothers and Sisters
  • Grandparents
  • Aunts and Uncles
  • First Cousins

This list is exhaustive and the estate will be provided and divided to the next available relative category. For example, if you don’t have a spouse or children, your estate will be divided amongst your parents, and if no surviving parents, your brothers and sisters equally, and so on. [...]  READ MORE →

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Are you eligible to contest a Will

Are you eligible to challenge a will?

Contesting a will can be complex, confusing and is subject to strict time constraints. A will lawyer can assist you to understand the process and your eligibility to contest a will in a time of grieving.

A will can be contested before or after there has been authorisation for the executor to manage the estate, known as a grant of probate. It is simpler to contest the validity of the will before the executor starts to administer and distribute the estate, but is still possible after this has started. [...]  READ MORE →

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How often should I update my Will

How often should I update my Will?

Effective estate planning offers certainty as to how your property and possessions will be distributed after your death. However, it is important to recognise that a Will is largely confined to expressing your wishes at a particular point in time. This means that to make sure your loved ones are effectively protected, your Will needs to be regularly updated. Before your Will is altered it is recommended that you consult an estate planning lawyer to make sure that your wishes are correctly implemented. [...]  READ MORE →

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How effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity. [...]  READ MORE →

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Terms used in a Will

WILLS –DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?

Identifying whether the expressions step children and step-grandchildren are included in the expressions children and grandchildren can cause confusion in Wills .

When all else fails, Courts try to determine expressions in the Will according to the intention of the deceased. Courts may in some cases look into family relationships and their closeness in order to determine the meaning of an expression such as “child”.  In a recent case where there was an intention in the Will for step-grandchildren to be beneficiaries, it was decided that the definition of “grandchild” could be extended to “step-grandchild.” [...]  READ MORE →

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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave his or her estate to whoever they choose. However, there may be circumstances in which a person has been left out of a Will who believes they should have been included.  This is because “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), and grandchildren or members of the household who were dependent on the deceased. [...]  READ MORE →

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Binding Death Nominations (I heard it on the radio)

Will LawyerBinding Death Nominations (I heard it on the radio)

Binding Death Nominations need to be completed carefully if they are to be effective.

It is also important to consider who is being nominated as a beneficiary – otherwise there can be unwelcome tax consequences.

A recent superannuation case decided Binding Death Nominations cannot be disclaimed and the parties involved were caught with the unwelcome tax consequences as the nominated beneficiaries were not death benefit dependents and receipt of the benefit was subject to tax.

The Binding Death Nomination in that case was made by the SMSF member on the basis of “comments heard on a radio station.” [...]  READ MORE →

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A Will Lawyer’s answers to SMSF questions

A Will Lawyer’s answer to questions on who should be trustee of your SMSF

Can SMSF members be trustees as individuals – are there problems with having individuals as trustees?

A Will lawyer will advise it is quite okay to have individual members as trustees of self-managed superannuation funds. However, there is a danger that record keeping can become muddled and personal assets can be mixed with those of a fund. There can also be a big administrative burden in transferring title of fund assets from one trustee to another, as opposed to companies having the advantage of perpetual existence.

Trustee companies whose sole role is to be trustee of a super fund also attract a lesser annual ASIC fee, so the cost is not great. [...]  READ MORE →

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COVID-19 WE ARE HERE TO SUPPORT YOU

Wills and Estate Planning in a Time of Uncertainty

As the COVID-19 crisis plays out before us with each day bringing new reasons for anxiety and uncertainty, we understand that there is concern in the community surrounding the implications of the outbreak. People are worried and we are trying to help.

The imponderable concern people have now is ‘how long will it take for the virus to be brought under control’. The immediate concern people have is for the health and safety of their family and themselves. [...]  READ MORE →