Wills & Estates

What is death literacy? It is the practical know-how needed to plan well for the end of life. This may sound strange, but it is an important issue as 75% of Australians have not had end of life discussions. As the number of Australians aged 65 and over doubles by 2050, improving our death literacy is even more important. Dying to Know Day was last week on the 8th of August and was the sixth annual ‘Dying to Know Day’ aimed at encouraging Australians to discuss death and make appropriate arrangements for when you pass away. Preparing for the end of a life may seem foreign and uncomfortable but it is a necessary and serious process. The key features of planning for death should include a Will, an Enduring Power of Attorney, and an Advanced Care Directive for health decisions. Everyone’s situation is different. Do you have assets? Do you have children or step-children? Will your superannuation form part of your estate when you die? Seeking proper advice for your Will ensures that what you want to happen to your assets is what is directed. An Enduring Power of Attorney ensures financial decisions can be made for you in the event of incapacitation...

[embed]https://www.facebook.com/ACurrentAffair9/videos/1513102552129450/[/embed] Protective Trusts and Disability Trusts By Eugene Reinboth  It is not uncommon for situations such as the recent story on A Current Affair example to occur. You can take steps to avoid this. Where you have a child or other beneficiary of your will who is unable to exercise proper control of money such as from a drug or gambling addiction then you can set up a protective trust. This process provides protection for the beneficiary through a separate trustee holding the trust assets for the benefit of the beneficiary. The beneficiary’s specific needs are considered in the administration of the trust. A protective trust can be created while you are alive to take effect immediately. It can also be created through your Will to take effect after you pass away. Most protective trusts are set up by a Will. Where a child or other beneficiary is disabled then a Special Disability Trust Will allows your disabled beneficiary to receive their inheritance without it affecting their income support payment, such as a disability support pension, or their health care card. On your death, your will sets up a trust that will receive the funds you are leaving to your beneficiary. The trust funds can...

Wills and Blended Families By Eugene Reinboth  There is an interesting article in the Sydney Morning Herald "Blended Families Need An Inheritance Plan More Than Most". It sets out what we at Belperio Clark have been advising our clients about for a number of years. The article mentions that a modern family relationship can be complex and if one of the partners was to die without a valid will, there's a good chance that the estate would not be divided up in the way the deceased would have liked. It puts forward that experts say it is not only important for those in blended families, particularly those getting married for a second time, but also for those in de facto relationships, to make a will and estate plan. This includes making a power of attorney and an Advance Care Directive.  The Advance Care Directive sets out what is to happen when you are incapacitated and unable to make decisions about your future health care, end of life, or living arrangements. It is a sad fact that families can end-up and often do end up fighting over money when someone dies. It is readily accepted by lawyers, that it is hard enough for those with fairly...

Written by Emma Campbell Life is full of uncertainties. The only aspect of life that we can be truly certain about is death. Everything must, eventually, come to an end. Often we hear clients say “if I die”, when the reality is that there is no “if” when it comes to death, only “when”. Resistance to accepting that death is an uncontrollable and definite part of life can often be a reason for avoiding making a Will. Unfortunately, when procrastination occurs it may be too late. As death is certain, it is important to plan for it. Life is uncertain and no one can guarantee what will happen tomorrow. There are many reasons why having a Will is important. The main advantage is that it allows you to be in control of how your estate will be administered, who will inherit from your estate and who will wind up your affairs. You can also decide who will take care of your children. Having a Will prepared by a professional allows for greater tax flexibility and/or tax planning, and allows you to understand family inheritance provision claims (and how best to avoid them). At Belperio Clark we create flexible Wills that take into consideration the many uncertainties...

The recent death of Mr Hugh Hefner has provided worldwide publicity about prenuptial agreements and a wife apparently receiving nothing from an estate. Mr Hefner was well known for his hedonistic pursuits of pleasure and self-gratification. He was also well known for his wealth, three marriages, numerous relationships, the publishing of avant-garde magazines such as Playboy and his strong support for freedom of speech and expression. The recent publicity reports that his third wife, Ms Harris will not inherit anything, as she has been left out of his Will. According to the Daily Mail, amongst other publications, it is said that Ms Harris was not made a beneficiary of his Will. The media also reports about there being an ironclad prenuptial agreement between Ms Harris and Mr Heffner. Apparently, Ms Harris will be taken care of by undisclosed means. It is reported that his estate is to be divided among his four children, the University of Southern California and a list of charities. The issues mentioned in relation to Mr Hefner, are common in many countries including Australia – with lesser fortunes, fewer marriages and relationships. They do however point out the complexity which needs to be dealt with. We at Belperio Clark Lawyers...

It’s time to change the way Australians talk about death and dying – 75% of us have not had an end of life discussions and over 70% of us die in the hospital though most of us would prefer to die at home. August 8th is ‘DYING TO KNOW DAY’; a day that aims to encourage conversations about planning for the end of life. While many find conversations about death uncomfortable, planning for such an event can make it more bearable for all when the time comes. This preparation should include a Will, an Enduring Power of Attorney and an Advanced Care Directive. An Advanced Care Directive allows you to outline your wishes for the future should something unexpected happen that results in you becoming incapacitated. This includes directions such as what type of care you may want to receive, whether you would prefer treatment at home or in a hospital, and who can make decisions about your health and lifestyle should you not be able to. Similarly, an Enduring Power of Attorney is a legally-binding document that allows you to appoint somebody who can make financial decisions on your behalf if you become incapacitated and unable to make those decisions yourself. A professionally drafted Will is also essential for...

Did you know that today is ‘Dying to Know Day’? The GroundSwell Project want to encourage all Australians to: develop their death literacy make the end of life plans such as a will and advance care plans share these wishes with their families get informed about end of life and death care options such as dying at home, home and community-led funerals and natural burial be better equipped to support family and friends experiencing death, dying and bereavement The thought of death is unpleasant for many people but a part of life. We encourage all of our clients to consider the inevitable and to prepare. A professionally prepared Will is crucial. An Advanced Care Directive lets you set out your wishes for your healthcare including the end of life care. Morbid? No, just part of living. Give us a call today to talk about Wills, Enduring Powers of Attorney and Advanced Care Directives. Or as we like to call them ‘A Peace of Mind Pack’! Phone: (08) 8212 1322 ...

A substantial number of people are now finding themselves being advised of an inheritance of either real estate or money in bank accounts located in foreign jurisdictions. Unfortunately, most of the general public are unaware or unsure of how to actually claim or obtain these inheritances.  Neither are government departments or a large number of the legal profession able to assist. This is a specialist area. It is important that people who find themselves in this position are aware of 2 fundamental facts: – almost certainly it will be necessary for you to engage a notary public; it will also be important to engage a notary who understands overseas civil law jurisdictions in the way in which that legal system operates as opposed to the Australian common law system. All Notaries Public must be lawyers in South Australia but not all lawyers are a Notary Public. If you do find yourself in the position of having to obtain a foreign inheritance or deal with foreign jurisdictions our notary Roy Hasda at Belperio Clark can assist in all the above matters and more. Roy has experience with Civil Law jurisdictions and speaks and writes Italian and French....

From Lexology 31 Jul 2015 Case Review: Burke v Burke [2015] NSWCA 195 Recently, the Court of Appeal of the Supreme Court of New South Wales has given some firm guidance upon community values and expectations when an estranged adult son made an Inheritance Family Provision claim against his mother’s estate Mrs Beryl Burke died a widow aged 93 years. She was survived by her three adult children, Terry, Alan, who was the executor of her Will and Diana. In her Will, the deceased left a legacy of $100,000 to her grandson, Stephen and the residuary of her estate was divided equally between Alan and Diana. She made no provision for Terry with whom she had no contact for about 20 years prior to her death. In a letter prepared before her death, Mrs Burke explained that she had not included Terry in her Will to reflect the fact that he, through his own choosing, was no longer a part of her life, having become totally estranged from the entire family. Terry commenced proceedings in the Supreme Court seeking a family provision order out of Mrs Burke’s estate. It was not disputed that Terry was in financial need. The trial judge found that Mrs Burke was...

From LEXOLOGY July 2015 Many people assume their existing Will automatically deals with their discretionary trust and superannuation assets. Our firm raises with clients that these assets usually are not automatically dealt with under their Will and special attention needs to be given. The truth is these assets may or may not end up being dealt with under people’s Will. Therefore, it is important that they are dealt with in the way the law allows to ensure they end up with the persons you intend. The main considerations relevant to an estate plan include: Dealing with control of a discretionary trust –  check the powers of appointment in the trust deed (if any) and ensure that the power of the appointor can be passed onto a person of the appointor’s choosing under their Will; consider whether the trust deed needs to be amended to allow for this. Who are the beneficiaries? –  check who you want to receive the trust assets and ensure that those persons are beneficiaries in the trust deed. We can advise when making Wills what can be done to achieve these wishes. Superannuation – check to see if a valid binding death nomination has been made (in addition to taking proper financial advice...

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