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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.”

It is best to take proper advice as to who you can and should nominate to benefit under a Binding Death Nomination. In fact you should consider whether a Binding Death Nomination is appropriate at all. It might be better to allow for greater flexibility. In any event, it is not “set and forget”. Regular review is best practice.
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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.

SMSF – is it okay to use any company as trustee

A Will Lawyer will advise it is best if a trustee of an SMSF is incorporated specifically for the purpose of being trustee of the SMSF.
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Literary Executor

Appointment of a Literary Executor

The appointment of an executor within a Will can be assigned to a specific property or a certain type of property. However, the specified executor must fall within the meaning of ‘executor’ under the Probate and Administration Act 1898(the Act), section 41 to be granted probate which states:

“41 The Court may, if it thinks fit, grant probate to one or more of the executors named in any will, reserving leave to the other or others who have not renounced to come in and apply for probate at some future date.

This is evident in the NSW Supreme Court case The Estate of Nicholas Paul Enright [2017]. Nicholas Enright within his Will appointed two executor’s of his estate and a third ‘Literary Executor’. It was brought to the Court to determine whether the appointment of the third executor fell within the meaning of executor under section 41 of the Act as they weren’t granted probate alongside the other executors, and if so, whether the property was inclusive of “the copyright and other intellectual property in the deceased’s works”. It was noted that the term ‘Literary Executor’ had appeared in other cases.
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Will Lawyer for non-English speaking clients

How a Will Lawyer can assist non-English speaking clients

A recent report prepared by Charles Sturt University and the University of Adelaide found that … roughly half of adult Australians have a Will but nearly half of those who do don’t feel that their Will is up-to-date or adequately expresses their wishes.” A Will Lawyer can assist.

This is surprising, considering that a Will is probably one of the most important documents that a person will ever sign.  It also highlights the importance of talking to a Will Lawyer.

A Will is defined as a legal document, and a statement of a persons wishes that are to be carried out when they pass away.  The benefit of having a Will is that you get to decide how the assets that you have gained over a lifetime may be distributed.  When preparing a Will, it is important that you speak to a Will Lawyer to ensure that your will meets all legal requirements and that your wishes are clearly expressed so as to reduce the chance of there being an argument over what your intentions were (who receives what).  

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How a Will Lawyer can Assist Non-English Speaking Clients

A recent report prepared by Charles Sturt University and the University of Adelaide found that “…roughly half of adult Australians have a Will but nearly half of those who do don’t feel that their Will is up-to-date or adequately expresses their wishes.”[1]

This is surprising, considering that a Will is probably one of the most important documents that a person will ever sign.  It also highlights the importance of talking to a Will Lawyer.

A Will is defined as a legal document, and a statement of a person’s wishes that are to be executed when they pass away.  The benefit of having a Will is that you get to decide how the assets that you have gained over a lifetime may be distributed.  When preparing a Will, it is important that you speak to a Will Lawyer to ensure that it meets all legal requirements and that your wishes are clearly expressed so as to reduce the chance of there being an argument over what your intentions were (who receives what).
Continue reading…