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Wills and Estates

Digital Assets In Wills Australian Law

Digital Assets In Wills Australian Law

In Australia, estate planning has progressed beyond traditional wills and material possessions in an increasingly digital world. For those trying to secure their digital assets, the rise of digital assets — such as social media profiles, cryptocurrency accounts, and internet accounts — brings both new opportunities and concerns. The vital role that digital assets play in Australian estate planning will be discussed in this article, along with tips on how to easily include these assets in your estate plan. The Role of Digital Assets in Estate Planning in Australia Jameson Law recognizes the significance of addressing digital assets in estate planning to ensure that individuals’ wishes are fulfilled and their assets are managed appropriately after their passing. Digital assets encompass a wide range of items, including but not limited to, online accounts (such as email, social media, and online banking), digital files (such as photos, videos, and documents), cryptocurrencies, websites, and domain names. One of the initial steps in estate planning is identifying all digital assets owned by the individual. This may involve creating an inventory of online social media accounts and digital files, as well as documenting any cryptocurrencies or other digital investments. Unlike physical assets, digital assets are often protected by passwords, encryption, or other security measures. Therefore, it is essential to establish a plan for managing access to these assets in the event of incapacity or death. This may involve creating a digital asset register that lists each asset along with login credentials and instructions for accessing them. Estate planning laws in Australia are evolving to accommodate digital assets. It is crucial to work with legal professionals who are knowledgeable about these laws and can help ensure that digital assets are properly addressed in wills, trusts, and other estate planning documents. Digital assets may contain sensitive personal information, and access to them must be managed carefully to protect privacy and security. Estate planning strategies should include provisions for securely transferring digital assets to designated beneficiaries as digital executors while minimising the risk of unauthorised access. Assets can sometimes be passed through the Will as gifts. However, financial accounts where you do not have the right to transfer, such as PayPal accounts, are not able to be gifted. These assets are typically handed to family members. Most wills indicate that assets not specifically mentioned called “residual assets” these can be distributed to the spouse or immediate family of the departed. If there is no will, the decision falls on the family to decide how the devices with sentimental value will be managed. By addressing digital assets in estate planning, individuals can ensure that their wishes are respected, their assets are properly managed, and their loved ones are provided for after their passing. Working with experienced legal professionals like Jameson Law can help navigate the complexities of integrating digital assets into comprehensive estate plans in Australia. Incorporating Digital Assets into Your Estate Plan Incorporating digital assets into your estate plan in Australia involves several steps to ensure that your online accounts, cryptocurrencies, and other digital possessions are accounted for and managed according to your wishes after your passing. Take Stock of Your Digital Assets Make a thorough inventory of all of your digital assets first. This includes digital files that may be held on external storage drives (pictures, movies, documents), cryptocurrency, websites, domain names, and online and bank accounts (email, social media, online banking, etc.). Choose a Digital Executor You may want to include a digital executor designation in your estate plan or will. After your passing, this person will be in charge of handling your digital assets, which will include gaining access to online accounts, transferring ownership of digital assets, and keeping up or shutting online profiles in accordance with your wishes. Provide Access Information Keep a record of all the login credentials, encryption keys, PINs, private information, and passwords for your digital assets. Using a reliable digital password manager or storing the data in a physical place (such as a safe deposit box), keep this information safe. Ensure that your designated digital executor is capable of retrieving this data when required. Update Legal Documents Review and update your will, trust documents, and power of attorney to specifically address digital assets. Work with a knowledgeable estate planning attorney who understands the legal implications, as well as privacy laws, of digital assets in Australia and can help ensure that your estate plan reflects your wishes regarding these assets. Consider Steps to Ensure Security Take steps to protect the privacy and security of your digital assets both during your lifetime and after your death. This may include setting up two-factor authentication on important accounts, encrypting sensitive digital files, and providing clear instructions for handling digital assets in your estate plan. Communicate Your Wishes Discuss your digital estate plan with your loved ones and your chosen digital executor. Make sure they are aware of your wishes regarding the management and distribution of your digital assets, and provide them with any necessary guidance or instructions. Regularly Review and Update Just like with traditional estate planning, it’s essential to regularly review and update your digital estate planning as needed. This includes adding new digital assets, updating access information, and revising instructions and legislation for managing your digital estate. How can passwords and barriers impact Digital Assets In Wills? The terms of service of almost every digital service provider also have clauses prohibiting the sharing of passwords. This may also apply to assets that are not themselves digital but require digital access (eg an online financial account, email accounts, Paypal accounts). The ban on sharing passwords can prevent the executor from accessing digital accounts, even though the will says that digital documents are part of the estate. In other words, while your executor (the person executing your will) may need access to your email, they do not have the official authority to do so. Pending legislation, testators may initially consider documenting their digital assets and recording and storing each account’s information in a

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property transfer stamp duty

Transfer property without paying stamp duty

Stamp duty (also called transfer duty) is a substantial cost component of a property purchase, and if there’s any exemption or concession whatsoever you’d want to know about it! A transfer involves removing parties from the property title Here are the most common scenarios that you can transfer property without paying stamp duty: Transfers between married couples and de facto partners where the transfer is either the principal place of residence (the family home) or vacant land which is intended to be used as the site of the principal place of residence. Upon completion of the transfer of the residential property, both partners must hold the property equally (whether joint tenants or tenants in common). Note: If the family home is also used for other purposes, the exemption will only apply to the residential part of the home. Marriage, de facto or domestic relationship break-ups Section 68(1) of the Duties Act 1997 (NSW) specifies that where a break-up of marriage or de facto relationship occurs the title transfer can occur with transfer duty exemptions between either of the parties of the domestic relationship breaks, or a child or children of either of the parties. This must be effected by court order under the Family Law Act, or in accordance with a binding financial agreement made under sections 90B, 90C, 90D, 90UB, 90UC or 90UD of the Family Law Act 1975. Foreign transferees who are eligible for an exemption, still have to pay the surcharge purchase duty currently set to 8% of the property value they receive. Deceased estate transfers to a beneficiary in accordance with the terms of the will or under the rules of intestacy are entitled to a concessional rate of $50. If a will is contested, the duty chargeable will be determined based on any court orders made. Where a transfer does not confirm to a will, transfer duty will be payable. Example, if the beneficiaries agree to become owners on different properties, then they will need to pay transfer duty on the ownership proportions they now hold, that were not originally gifted in the will. Speak to a lawyer today Always engage a property lawyer to assist you with the transfer of property, and advise you transfer duty implications. Further, if you are separating, make sure your family law lawyer has effected the transfer in such a way that ensures the stamp duty exemption is applied.  Do I have to pay Stamp Duty? Where there is no stamp duty exemption or concession met under the Duties Act 1997 (NSW) and as noted above, you will be required to pay stamp duty and the vendor may need to pay capital gains tax. In NSW, stamp duty is based on the property’s contract price (or sales price) or the market value of the property, whichever is higher; and not the contract price. If the buyer and seller are related or associated, or you’re not transferring the whole property, the property you must obtain an independent valuation by a suitably qualified property valuer. They will look into a number of factors such as the property’s market, recent sales, originally purchased price, zoning, restrictions on the property, and renovations or any property upgrades to determine the valuation price for nominal transfer duty. Transfer duty will then be payable on the new portion of the property title now attributed to you. As part of the property transfer, our solicitors will lodge an application for assessment on the contract for sale or transfer of land on your behalf, and arrange for paying transfer duty as part of the property title settlement process.   Gifting Property or Selling property Whilst you may be generous gifting property or selling property at below market value to a family member or significant relationship, the tax man isn’t so gifting. Whether it is an investment property or the family home, transfer ownership will attract stamp duty if it does not fall in the stamp duty exemption categories: For relationship breakdowns there would need to be a certified domestic partnership agreement, binding financial agreement or court order; Deceased estate where the beneficiary is specified on the will and/or under the general rules of intestacy stamp duty exemptions may apply. Transferring family home within a marriage significant relationship or de facto partners. Foreign transferees who would need to pay the surcharge purchase duty currently set to 8% on the property’s independent valuation or market value.   What is a related party? Related parties can be defined as spouses, family members or people in a business or personal relationship. Such transactions are not considered “arms length”, and the parties have a pre-existing relationship and often benefit from the nature of the transaction differently to an “arms length” transaction, such as receiving a property at a below market value price or gift. Related party transfers include adding a spouse on title, change of ownership between related parties for refinancing, court orders and/or property settlements such as divorce or de facto partners separations, transfers between family members as a gift or below market value, transfer to deceased estates to the beneficiary, and transfers between a trust or company to a person for tax purposes.   Property transfer to family members or related parties Generally speaking, transferring property between family members or related parties attracts transfer duty, however some property transfers may qualify for a stamp duty exemption or concession. If you paid transfer duty, but realise you were entitled to an exemption or concession you can actually lodge a claim for a refund within 5 years. There are 3 main questions you need to ask before transferring property between family members or related parties: Will the property transfer be by gift, sale, or holding change? Understand the costs involved including: What are the Title Office costs and stamp duty fees involved? Are there any capital gains tax implications for the vendor? Speak to a lawyer today Depending on the type of transfer, it is important to engage a qualified solicitor to assist you with the

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estate planning

Estate Planning

Often people will make inquiries regarding preparation of a will with the fear that their assets will not make their way to the family members, or even be taken over by the government. The State of New South Wales has legislation to address circumstances where a deceased person has not left a valid will and we set out a bit about that below. How can I make sure my family inherit my Estate?   Speak to a lawyer today The best way to safeguard your assets and provide a clear plan for your family’s inheritance, gifts to friends or a donation to charity is to establish a valid Will. The formal requirements for a valid will as set out in section 6 of the Succession Act 2006 are that: It is in writing. It is signed by you, with the intention of executing the will. The signature of, or on your behalf, must be made or acknowledged by the testator in the presence of two or more witnesses. Under the will, an Executor is the person responsible for administrating the assets of your Estate. There are certain obligations on an Executors and Trustees to carry out your wishes in your will and to deal with the Estate in a timely manner. Your Will deals with each of your assets in accordance with your wishes and you can set out who will inherit your Estate, including the making of any specific gifts. It’s important to keep your will up to date as your family dynamics change. If your Estate is more complex, a Testamentary Trust may be suitable to manage your assets upon your passing. What happens when someone passes away? Intestacy In NSW, if you pass way without a valid will, your Estate will be dealt with pursuant to the rules of intestacy. The legislation governing Estate distribution sets out who can apply, the categories of potential beneficiaries and the procedure for such applications. An application to the Supreme Court of New South Wales is referred to as Letters of Administration. Application for Probate An application for probate is made by way of Summons to the Supreme Court of NSW.  It is made by the Executor(s) of an Estate so that they can act on the wishes of the deceased by calling in assets and distributing them to the beneficiaries of a Will. An application can become complex and overwhelming, particularly where real property is involved. If you require assistance with preparing or updating a Will, an application for a grant of probate or if a family member has passed away without leaving behind a valid will, we invite you to contact our Wills and Estates team and book a consult with one of our experienced wills and estate lawyers to discuss your matter.

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Enduring_Guardian

What is an Enduring Guardianship?

What is an Enduring Guardianship? In the event that somebody anticipates losing the capacity to make their own decisions about their health or lifestyle (such as medical decisions, financial decisions, general medical care or other important decisions such as estate planning), they are able to appoint an enduring guardian, usually a carer, family member or close friend, to make such decisions on their behalf. An enduring guardianship is a legal document that does require a number of forms to be completed, which sets out the scope of decision-making the enduring guardian can make, including any limits. In order to validly appoint an enduring guardian, the enduring guardianship documents will need to be signed and witnessed by a lawyer, a clerk of a court or member of a tribunal, or the NSW Trustee and Guardian. The appointment of an enduring guardian will generally last until that person passes away, unless the enduring guardianship is cancelled or revoked prior. In NSW, the appointment of enduring guardians is governed by the Guardianship Act 1987 (NSW), which generally sets out how and when guardians can be appointed by adults with incapacity to make important decisions themselves. What decisions can an enduring guardian make? A person may appoint an enduring guardian to make a number of different kinds of decisions on their behalf, including: lifestyle decisions (such as where you will live) treatment decisions and medical decisions (including the ability to consent to medical treatment, dental treatment and health care) other important decisions about the person’s health care or lifestyle The guardian’s ability to make these decisions will only commence when and if the individual loses the mental capacity to make important decisions themselves. Note that an enduring guardian is not able to make financial decisions or estate planning decisions on behalf of the person. Such decisions will need to be made by a financial manager appointed under a financial management order. How are Guardianship Orders made? In New South Wales, the NSW Civil and Administrative Tribunal (NCAT) is able to make an order in favour of enduring power of guardianship, if the tribunal is satisfied that an individual lacks the mental capacity to make important decisions about their health, accommodation and lifestyle. Generally, an appointment will only be made in circumstances where the relevant person lacks the support network (such as family members, loved ones, informal carers etc.), which would be able to support the person generally. The Tribunal is only able to appoint an enduring guardian for people who are over 18 years of age and who reside in NSW. When can the appointment of an enduring guardian end? Once appointed, an enduring guardian is able to continue for as long as the guardianship order is necessary. This is to be distinguished from regular guardianship orders which under section 18 of the Guardianship Act, should not exceed 1 year, and a renewed order should not exceed a period of 3 years. This allows the Tribunal to have a degree of oversight over the necessity of regular guardianship orders. Generally, an enduring guardianship will only end in the event that: the person revokes or cancels the enduring guardianship while they still have the mental capacity to do so; the Guardian passes away or loses the capacity to carry out the appointment themselves, or resigns; NCAT or the Supreme Court modifies or revokes the appointment; or when the person dies. An enduring guardianship is able to be cancelled by the appointing individual at any time, provided that person still has the mental capacity to do so. This is carried out by completing a Revocation of Enduring Guardianship form. How is enduring guardianship different from enduring power of attorney? While enduring guardianship orders allow for the making of health care, medical and lifestyle decisions, a person appointed as enduring power of attorney allows a person to make financial decisions and legal decisions on that person’s behalf. Like enduring guardianship, enduring power of attorney is aimed at allowing a person to have comfort in the making of important decisions after they have lost the capacity to make such decisions for themselves.   In a nutshell… An enduring guardian is appointed by a tribunal to make important health care and lifestyle decisions on a person’s behalf, where that person lacks the mental capacity to make important decisions on their own. If you or a loved one are considering whether appointing an enduring guardian is right for you, our lawyers are able to provide expert advice on all aspects of seeking, obtaining and managing guardianship orders, as well as estate planning more generally. Contact our friendly Sydney lawyers today for a free, honest consultation about how an enduring guardianship might help you.

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Making a Will

Making a will provides an essential protection for individuals and their assets. Each and every person, no matter how big or small, has a pool of assets and liabilities that they want to protect. This may be because they want to gift their children, partners, spouses, parents, relatives, friends, etc, with their assets or they want to protect their family from being liable for their liabilities and debts. Either way, a will is critical for making your personal wishes known. Our team of expert wills and estate lawyers are able to assist you with drafting and updating your will and making sure that you understand each and every legal document associated. Contact one of them today to get a jump start on protecting your future. What Do I Need To Consider Before Making A Will? When making a will, it is important to consider whom or where you want your assets to be provided to; these are what we call beneficiaries. A beneficiary can be anyone from family members, to friends, strangers, and even organisations or charities. Wherever you want your assets to go is your personal choice. Once you have decided which beneficiaries you want, you must consider who is the most appropriate executor. The executor of a will is an important choice because it must be a person whom you both trust and consider to have your best interests at heart. Your executor is responsible for executing your estate upon your death and must do so in accordance with your expressed wishes so much as possible.   Case Study Suzannah has two children, Alexis and Matthew, whom she has named as beneficiaries in her will. Suzannah does not have any other family or close friends and she is concerned about who to name as executor of her will. Matthew has a stable family and he earns a good income. Matthew always assists Suzannah with banking and other tasks which she finds challenging. Alexis on the other hand likes to party and quite regularly comes to Suzannah for a loan. Suzannah would never turn her daughter away but she worries about many of the comments she has made. Alexis does not think that Matthew should inherit any of her money because he already earns a good income and does not need it whereas she does. Alexis has not been able hold employment for many years due to her inability to follow the rules . Alexis is adamant however that both she and Matthew should be executors of her estate because that is the only way it would be fair to both of them. Matthew disagrees however, he thinks that this is too much responsibility for Alexis and he worries about something going wrong. Thankfully, Suzannah is able to get legal advice on the matter and is told that just because she has two children does not mean that she needs to have both named as executors. There is no legal requirement to have more than one executor. What Should My Will Include? First and foremost, your will must be identifiable by your full name. It will not be considered a legal will if it does not have your full name in it. You will need to include the name of your executor, the names of your beneficiaries (whether these be people, places, organisations, etc), along with provisions for what is to happen to your estate in the event your beneficiaries do not survive you. Your will should include provisions for property (real estate) bank accounts, shares and all other assets owned in your name. Most importantly however, your will cannot be considered a valid will unless it has been signed by you as the testator and your signature witnessed by two individuals who are not family members or beneficiaries. Can My Will Be Considered Invalid? A will can be considered invalid if the will-maker is not considered to have testamentary capacity. This means that the mental capacity of the will make is impaired in some way (Dementia, Alzheimer’s, intellectual disability, etc) and they cannot be considered able to make decisions of this nature. A will may also be considered invalid if it is made by an individual who has not yet attained 18 years of age. Wills are binding legal documents and they must be entered into by an individual who is legally old enough to make one. Your will can also be considered invalid if you have not had your signature witnessed correctly by two individuals who are not either beneficiaries or family members. This is an extremely important aspect because it can cause chaos when it comes time to execute the will. Donna lives in NSW and has gathered her loved ones to share with them her wishes upon her death. Donna is 96 years old and has been told that she only has a few months left. Donna is of sound mind and has redrafted her will so that it includes some great grandchildren that were only born recently. Donna want the peace of mind that when she passes, all her family are aware of her wishes and how she wants things to be done. Donna notifies her family that along with her will is a series of important documents that they will need including the title to her home and share information. Donna has also left her life insurance paperwork with the bundle so that arrangements can be made for that to be collected. Does My Superannuation Need To Be Included In My Will? Superannuation can be dealt with in a few different ways but they can also all be tied together in one. You can choose to include your superannuation in your will however your superannuation fund will allow you to nominate a beneficiary through them. You can then reiterate that nomination through your will if you choose. What Happens If I Already Have A Will But Choose To Write A New One? You are encouraged to review your will every 5 to

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