As with most estate administration matters, we see clients that are left with difficult circumstances after their parent has passed away. Sometimes, those clients are survived by step parents, who were married to the deceased parent for only a short duration and had no biological children together.
Common issues that arise during the course of these matters, include: the deceased parent failing to leave a valid Will or failing to execute a valid binding death benefit nomination for payment of their superannuation death benefits. The clients are left to deal with these complicated issues, which can lead to disputes and causing legal and accounting fees to be unnecessarily incurred.
Steps can be taken during your lifetime to ensure that your family is safely provided for on your death. Below is a non-exhaustive list of common estate planning traps to avoid.
- Marriage (and civil partnership) revokes a Will
A Will is revoked by the marriage of the testator. If a testator enters into a civil partnership, their Will is also revoked.
However, if the Will contains gifts of property to the spouse of the deceased at the date of death (or other dispositions of property), or appoints the spouse as Executor (or as Trustee, Guardian or any other appointment), then the Will is not revoked to that extent. They may be left with the power to distribute assets to themselves which could be unintended.
To avoid this mistake, consider whether a Will should be made in contemplation of marriage. Generally, the solemnisation of the marriage will not revoke the Will.
- Divorce or annulment (or end of a civil partnership or de facto relationship) revokes a Will
If a testator’s marriage ends by divorced or is annulled, and their Will contains dispositions of property to the former spouse, or appointments of the former spouse, then these provisions are revoked. For example, a gift of real property to a former spouse is revoked and the gift takes effect as if the former spouse had died before the testator.
There are some exceptions. For example, appointments of the former spouse as Trustee of property for minor children of their marriage, will not be revoked.
The effect of termination of a civil partnership or the ending of a de facto relationship on a Will, is the same as those effects for divorce or annulment.
An important tip is to ensure a Divorce Order is obtained from the Family Court. Otherwise the former spouse is still considered a spouse of the testator.
- Death Benefit Nominations
You can provide the Trustee of a Superannuation Fund with a death benefit nomination (which can be binding or non-binding) for payment of your death benefits. The death benefits can be paid to the legal personal representative (i.e. Executor or Administrator) or a dependant or dependants of the member.
The legislation provides a nomination ceases to have effect three years after the day it was first signed by the member. If the nominations lapses, it may be deemed non-binding and the trustee has discretion to pay the death benefits as it sees fit.
If a member struggles to remember to renew their death benefit nomination, consider rolling the funds into a Self-Managed Superannuation Fund, which enables a member to make a non-lapsing and binding nomination (provided the trust deed expressly allows it). Accounting and tax advice should be obtained to consider whether a Self-Managed Superannuation Fund is suitable for individual circumstances.
- Tenants in Common and Joint Tenants
When purchasing real or personal property with one or more persons (or entities), you will need to consider the form of ownership.
An important factor to consider is whether to hold property as “tenants in common” or “joint tenants”. Tenants in common hold their interest in the property separately. Their interest is registered on title as a fraction of ownership.
This means that on the death of one of the tenants, their interest in the property forms part of their estate and is distributed in accordance with their Will.
If property is held as joint tenants, then on the death of a joint tenant, their interest vests automatically in the surviving joint tenant. Their interest will not form part of their estate on death. This is not often discussed during a conveyance and can have devastating effects at the time of death.
Holding property as tenants in common can mean that beneficiaries will need to commit to owning property with another person (or entity), which may be a partnership if it is a commercial or residential investment property.
If the circumstances do not allow for those beneficiaries to receive the cash equivalent of the deceased’s interest in that property, they will end up holding the deceased’s share in the property, proportional to their share of the estate.
If you would like to plan your Will and avoid these and other devastating estate planning traps, please do not hesitate to call Tony Crilly or Elizabeth Ulrick on 07 3839 7555 or email us firstname.lastname@example.org.
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