Can an Executor Claim Payment from an Estate?

ATHActing as the Executor of an Estate can be a demanding task, especially if the deceased had complicated business affairs and/or left a complex Will. So can an Executor charge for time and effort spent in administering an Estate? In short: Yes.

There are two basic types of payments an Executor may claim:-

  1. Professional fees for services provided to the Estate by the Executor acting in a professional capacity (i.e. accounting or legal services); and
  2. Commission for the Executor’s “pains and trouble” suffered as a result of acting as Executor of the Estate.

Professional Fees

Many Wills will contain a clause which specifically allows an Executor to charge professional fees for work performed in his or her professional capacity in connection with the Estate.… Read More

What can happen to a tenant if a landlord goes bust?

ATHEffect of Willmott Growers Group v Willmott Forests

In Willmott Growers Group v Willmott Forests (“the Willmott case”) the High Court has confirmed that a liquidator can disclaim a lease if a landlord company is liquidated.

Facts of the case

  • Willmott Group (“Willmott”) leased land to a tenant for a period of 25 years.
  • Willmott subsequently became insolvent and was wound up.
  • Willmott’s liquidators disclaimed the lease in accordance with the Corporations Act (“the Act”).

Result

The High Court found that the liquidator was entitled to disclaim the lease.

The tenant lost its rights in regards to the land and was left only with a claim as an unsecured creditor in the liquidation.… Read More

Special Disability Trusts

ATHOverview

Passing ownership of assets to a disabled beneficiary can have the undesired result of reducing the beneficiary’s government pension.

The introduction of the Special Disability Trust (SDT) in 2006 was the Australian Government’s response to this problem.

SDTs can be established in a Testator’s Will and allow assets to be left to a disabled beneficiary without having adverse effects on their Centrelink entitlements.

SDTs may also be set up whilst you are alive and the restrictions and concessions applicable will be the same as those that apply to SDT’s created by a Will.

Who is eligible?

SDTs are only available to beneficiaries who meet the definition of “severely disabled” as defined in section 1209M of the Social Security Act 1991.… Read More

Testamentary Trusts: Should I include one in my Will?

Testamentary Trusts: Should I include one in my Will?

What is a Testamentary Trust?

A testamentary trust is a trust established by a Will that comes into existence upon the death of the testator (the person making the Will). Creating a testamentary trust provides an alternative from giving a gift to a beneficiary absolutely. Instead, the gift is given to the trustees of the trust (usually the executors of the Will), to distribute to the intended beneficiary at a later time.

Benefits of Testamentary Trusts

Including a testamentary trust in your Will can have various benefits, including:

  • Providing trustees with flexibility and the ability to respond to the changing circumstances of various beneficiaries;
  • Protecting your assets from being squandered by an irresponsible beneficiary;
  • Providing an avenue to protect assets that are intended for a disabled/ underage beneficiary; and
  • Various taxation benefits.
Read More

Landlord’s Beware: Requirements to ensure that your Retail Lease is Enforceable

ATHRetail Leases are covered by the Retail Leases Act 1994 (‘The Act’). The Act sets out a number of requirements that Landlords must follow when a Retail Lease is prepared, to ensure that the Lease is enforceable against a Tenant. They include:-

  1. A Landlord must not advertise a retail shop for lease unless he has a copy of the proposed Lease in his possession.  Maximum penalty for Landlords = $5,500.00.
  2. A Landlord must make a copy of the proposed Lease as well as a copy of a Retail Tenancy Guide available to prospective Tenants as soon as negotiations are entered into.
Read More

Impending Changes to Australian Privacy Law

ATHWhat is being changed?

The Privacy Amendment (Enhancing Privacy Protection) Act 2012 amends the existing Privacy Act 1988.

When?

New laws taking effect from 12 March 2014.

Who is effected?

The new laws effect businesses and most government bodies that collect and transfer personal information in Australia.

What are the main changes?

Of the 13 newly introduced Australian Privacy Principles (APPs), the most significantly changed are as follows:-

  1. APP 1 (open and transparent management of personal information): Entities must ensure that they manage personal information in an open and transparent way. Entities must have a clearly expressed and up to date privacy policy which deals with a number of prescribed matters.
Read More

The End Is Near: PPSA Transitional Period due to expire on 31 January 2014

ATHBoth companies and individuals need to be prepared for the end of the PPSA Transitional Period which is rapidly approaching.

 

What is the PPSA?

The Personal Property Security Act (PPSA) came into effect on 30 January 2012, aiming to regulate interests in ‘personal property’. That is, property other than real estate.

Who does the PPSA Apply to?

Essentially, the PPSA may apply to any of the following parties:-

  • sellers or buyers of personal property;
  • lessors or lessees of personal property;
  • persons supplying goods on retention of title terms (e.g. hire arrangements); or
  • financiers taking security over personal property.

What is the PPSA Transitional Period?Read More

Primary Production Land Tax Exemption

ATHLand tax is imposed annually on the total land value of all taxable land owned in NSW. However, land that is used for primary production is exempt.

 

Qualifying for the primary production exemption is not a straight forward process. The Office of State Revenue (OSR) has implemented increasingly strict guidelines surrounding what land qualifies.

Under the Land Tax Management Act 1956 (NSW), land that is zoned rural and is used for primary production qualifies for the exemption. However, land that is not zoned rural must pass a stricter test. Not only must non-rural land be used for primaryproduction, it must also:

  • have a significant and substantial commercial purpose or character; and
  • be engaged in for the purpose of profit on a continuous or repetitive basis.
Read More

Current Market Rent Reviews in Retail Leases

ATHThe Retail Leases Act 1994 attempts to correct the power imbalance traditionally existing between landlords and tenants. This is seen in relation to market rent reviews.

 

When rent is to be reviewed by reference to current market rent in a retail lease, either the landlord or tenant must suggest a new rental to the other party in writing at least 60 days before the rent review date.

If parties are unable to reach an agreement at least 30 days before the new lease is due to commence, the Retail Leases Act states that current market rent will be determined by a specialist retail valuer.… Read More

Retail Leases: The Importance of Disclosure

ATHThe Retail Leases Act (NSW) applies to all retail leases in NSW. The definition of retail lease  encompasses any agreement under which a person grants another person a right to occupy a premises for the purpose of using the premises as a retail shop.

At it’s core, the Retail Leases Act is a piece of consumer protection legislation for small business . It is designed to address perceived imbalances in power that may exist between landlords and small business tenants.

As well as regulating particular terms of retail leases, the Act emphasizes the fundamental importance of disclosure before a retail lease is entered into.… Read More