What information do you need when putting together your will?

A testamentary trust is a trust established through the terms set out in your will. Your will can have a single or multiple testamentary trusts.  It is not effective until your death.

Advantages:

  The assets are owned by one person (the trustee), but the benefit derived from them goes to the nominated beneficiaries. That means the assets are protected from adverse action against the beneficiary e.g. bankruptcy, divorce, personal lawsuits from high-risk occupations (e.g. as a doctor, lawyer, etc), etc.

  Taxation. A testamentary trust does not pay personal income tax. Any income, fringe benefits or franked dividends that may be accrued by the trust is distributed equally among the beneficiaries of that trust. 

  If your beneficiary receives an Australian pension, testamentary trusts are not taken into consideration when determining a person’s eligibility for the pension.

  You can nominate the trustee. A trustee can be a family member, friend or professional trustee.

  You can set the expiration date of the trust. A testamentary trust can last up to 80 years. This is particularly beneficial if you have a child with ongoing needs.

  If you are unsure whether you want to establish a testamentary trust, you can include a clause in your will giving discretion to the executor of your will to establish one after your death. 

Disadvantages:

  The ongoing costs associated with a testamentary trust can be prohibitive, especially if the trustee is a professional trustee hired to administer the trust. Ongoing costs include annual trust tax returns as well as the fee payable to the professional trustee. 

  The trustee has total control over the trust and distribution of income earned from the trust. Assets of the trust can be borrowed, used as security or removed from the trust by the trustee. It is essential that you nominate a trustee that can be trusted 100%.

  Assets may be subject to Stamp Duty or Capital Gains Tax. The Australian taxation system is complex and it is recommended that you seek financial advice from a licenced financial planner to make sure this is the best decision for you and your estate. 

  The assets of a family trust do not roll over to the testamentary trust. If you wish to include your family assets in a testamentary trust, you will need to dissolve the family trust to create the testamentary trust. Before making this decision, you should speak with your financial planner.

What makes a will valid?

For a will to be considered valid in NSW, it must:

  Be in writing (typed or handwritten – handwritten must be in legible writing).

  Signed by the will-maker (testator).

  When you sign your will, it must be witnessed by two people and they have to sign it as witnesses at the time that you sign it.

  When you sign your will, you should sign the bottom of each page and initial any amendments that have been made.

  You should not be a witness to the will signing if you are a beneficiary. This can cause issues if the will is contested and you may lose any benefit from the will.

  Anyone signing the will should use the same pen to avoid accusations of tampering.

Deceased Estates

The passing of a loved one can be a difficult time. Not only do you need to navigate your emotions, you also have to deal with the deceased person’s estate. In Australia, wills and estate law can be complex, especially when the assets of the deceased are in another state or country. Let us assist you to navigate the estate administration process. Contact our office for a free initial consultation.

In NSW, deceased estate administration is dealt with under the Succession Act 2006 (NSW), the common law and equity. Estate matters are heard by the Supreme Court of New South Wales.

What is the deceased estate?

The deceased estate is made up of all the assets of the estate and liabilities (debts). These include:

  bank accounts

  building society accounts

  superannuation

  income tax

  real estate

  insurance policies

  debts

  motor vehicles

  artworks 

  collectibles

Process for the administration of the estate with a valid Will:

1. Contact Jameson law for legal advice.
2. Locate a copy of the deceased person’s Last Will and Testament. Wills are not registered. However, if you are unable to locate it, your solicitor may be able to assist by reaching out to other legal practitioners to see if they have it. 
3. Advertise a notice of your intention to apply for a grant of probate. This is completed using the Online Registry. You must wait 14 days after advertising your intention before you can file your summons for probate. This gives creditors the opportunity to claim on the estate for any outstanding debts owed to them and provides family members with an opportunity to make a family provisions claim. 
4. Complete and file the summons for probate, 
5. Draft and file the grant of probate and inventory of property 
6. Prepare and file the Affidavit of the Executor and attach a copy of the will and the inventory of property
7. File your application with the Supreme Court of NSW along with a self-addressed envelope. DO NOT file the original copy of the will as you will not get it back. Make sure you have a copy of the application and give your lawyer a copy if you file it yourself. 
8. Once probate has been granted, it will be sent to you in the self-addressed envelope you supplied the Court.
9. Contact the deceased’s financial institutions, superannuation funds, etc to close accounts. You will also need to notify the Australian Taxation Office (ATO). You will need a copy of the deceased’s death certificate. 
10. You will need to complete a tax return for any taxable income, e.g. income tax, derived prior to the date of death.