The position of a trustee of a trust is an important position which is governed by State and Commonwealth Legislation and Case Law.
Trustees of a family trust have many duties. Broadly speaking, these include the trustee:
• Acting in good faith;
• Acting personally;
• Acting unanimously where multiple trustees are involved;
• Not being dictated to by others such as beneficiaries;
• Having a duty to consider how distributions should be made and to whom; and
• Having a duty to avoid fettering of any discretion they have.
So can a trustee appoint someone else to perform the trustee’s duties, like an attorney?… Read More
The deceased died in 2016 aged 76 years survived by his widow and two adult sons and 6 grandchildren. The deceased made a Will on the day he died leaving his widow the right to reside in their matrimonial home for life. Upon termination of such right, the deceased sought to provide for 3 of his 6 grandchildren, to make a gift of $10,000 to each of his sons, and for the remainder of his estate to pass to his daughter in law who was also named Executor of his Will. The net value of his estate was in the vicinity of $3.8… Read More
A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
Whether or not Probate is required depends on the nature and value of the deceased’s assets.
If the deceased held land in their sole name or as tenants in common with another, Probate will be required.
Financial institutions, superannuation funds, aged care facilities and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally, such institutions will require Probate if the amount held with them is greater than $50,000.00.… Read More
I am often asked by clients who want to donate their organs, if they should include this wish in their Will. Due to the fact that a Will is not read until after a person’s death, there are better options for people to record their wishes to donate their organs.
Firstly, the Australian Organ Donor Register is Australia’s only national register that enables people to record their decision about becoming an organ donor after their death. Registration is easy, voluntary and allows a person to choose which organs and tissues they are willing to donate. There are a number of ways to register including, but not limited to, the following:
Register through your existing online myGov account;
Register using an Online form through https://donatelife.gov.au… Read More
A Will is a legal document which sets out who will receive your assets when you die. Taking the time to make a valid Will is an important first step but it is not the end of the story. A Will should be reviewed regularly and particularly when significant life events occur such as marriage, divorce, birth of a child, or if one or more of your beneficiaries die. Equally so, you should always keep your Will in a safe place and let the Executor(s) of your Will know where it can be located. This is because if a Will cannot be found at your death, it can lead to considerable uncertainty, distress and expense for your family as the following case illustrates.… Read More
I’m frequently asked what steps need to be taken when someone dies and how long will it take?
The usual steps are:-
… Read More
- Evidence of death is required. In most cases, this is a death/funeral notice published in the local newspaper.
- The death certificate is required. This certificate takes about 4 – 6 weeks to be issued by Births Deaths Marriages and provided to the executor/Estate’s solicitor.
- The funeral account can be paid from the deceased’s bank account if sufficient funds are available.
- We advise the relevant asset/liability holders of the death and provide certified copies of the death certificate. They provide us with details of the deceased’s accounts and their requirements to release the assets/liabilities of the Estate.
Quite often during marriage, separation and/or divorce, estate planning is the last thing on your mind. There can however, be a number of serious repercussions for your wealth, when getting married or splitting up.
It is important to know that getting married revokes a person’s existing Will. Therefore if you die after getting married, you may die without the benefit of a Will and your assets may pass to beneficiaries who you would not otherwise have chosen. This is particularly relevant in second and third marriages.
People should immediately update their Will as soon as possible after marriage or alternatively execute a Will prior to their marriage which is made in contemplation of their marriage to a certain person.… Read More
The deceased died in 2016 without leaving a Will. The deceased was survived by his estranged second wife, his ex-wife, and his two children, Thomas and William aged 19 and 16 respectively. The value of the deceased’s distributable estate was just over $430,000. At the time of his death, the deceased and his second wife had been separated for several years with the Court noting “There can be little doubt…the marriage had irretrievably broken down”. As the deceased died intestate (without leaving a Will) the deceased’s estate was distributed “not according to the wishes of the deceased as expressed in a Will, but according to a regime established by statute”.… Read More
A recent decision of the Western Australian Supreme Court was a timely reminder of the need to be specific when making a Will.
The deceased was a wealthy grazier who died leaving a number of farms and a significant number of Murray Grey cattle.
In his Will he made a provision gifting a farm to a particular person. The Will went on to say that the gift of land included all farming plant and machinery on that land.
The issue before the Court was whether the cattle that were normally grazed on that land were included in the gift or putting it in another way, whether cattle came within the accepted meaning of “plant and machinery”.… Read More
In 2008 the deceased died at the hands of one of her two sons. In 2012, son Brent was tried and convicted before the Supreme Court of Western Australia for the murder of his mother. In 2014 this family was again touched by sadness when Brent’s brother and only other child of the deceased, Adrian passed away. Adrian died without leaving a Will which meant his estate would be distributed according to the rules of intestacy. In 2016 a grant of letters of administration of Adrian’s estate was made to the Public Trustee (WA).
The Public Trustee (WA) made an application for direction from the Court as to how to distribute the part of Adrian’s estate which was made up of inheritance from his deceased mother’s estate.… Read More