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Securing Tomorrow: Understanding Estate and Non-Estate Assets and the role of Nominations

Securing Tomorrow: Understanding Estate and Non-Estate Assets and the role of Nominations. Estate planning plays a pivotal role in guaranteeing the orderly distribution of assets according to your wishes following your death, thereby safeguarding the financial well-being of your loved ones. It entails planning a comprehensive strategy for the administration of your estate’s assets, properties, and investments. It is essential to prioritise understanding the diverse components comprising an estate and methods to guarantee that its state of administration is clear. Understanding Estate and Non-Estate Assets Estate assets are assets including real property, investments, personal belongings, and other tangible assets. The distribution of estate assets is overseen by the executor. Conversely, non-estate assets are those that are not automatically governed by a Will and do not form part of the deceased individual’s estate upon their death. This can include superannuation funds and life insurance proceeds held outside of the estate. Non-estate assets include superannuation, life insurance payouts and assets held in trust. The distribution of non-estate assets requires specific arrangements made by the individual prior to their death, as they may not be covered by terms of the Will. Superannuation and life insurance are often crucial components of estate planning and act as significant sources of financial support for loved ones. Nominations In estate planning, nominations involve choosing who will receive your assets or take on specific roles after your death or become unable to make decisions. This includes naming beneficiaries for your financial accounts and insurance policies, as well as appointing executors, guardians for minor children, or trustees to manage assets for beneficiaries. A binding nomination legally obligates the trustee of a superannuation fund or insurance policy to distribute assets according to the specified beneficiaries outlined by the nominator. You can also elect a non-binding nomination which can strip you of your decision-making authority, leaving you with limited control over important matters. This can lead to potential repercussions and outcomes that may not align with your preferences or best interests. Given the importance of Superannuation and Life Insurance in securing financial support for your loved ones, it's crucial to address these matters properly. Setting up clear legal arrangements helps protect these assets and ensures your beneficiaries are taken care of. Importance of Professional Guidance Navigating estate planning can be especially challenging, particularly when it comes to nominations and distributing assets, therefore it is important to obtain appropriate advice. Salerno Law excels at guiding clients through this complex area of Wills and Estates. Our team comprehend the intricacies of Wills and Estates and offers tailored and accurate guidance that aligns with each individual's circumstances. Author: Liam Denniston & Steven Hodgson

2024-04-02T15:16:36+10:00April 2nd, 2024|Wills & Estates|

Woman Forced to Give Jacktpot to Husband in Divorce

Navigating Lotto Winnings and Divorce: A Comprehensive Guide In a twist of fate, winning the lottery can be both a dream come true and a life-altering event. But what happens when you win the lottery after a divorce or de facto separation? And how are family contributions, windfalls, and lottery gains treated during property settlement proceedings? News.com.au reports that a woman in California was ordered by the Court to give her ex-husband the entirety of her lottery winnings after failing to disclose the windfall in her property settlement. In 1996, after 25 years of Marriage to Mr Thomas Rossie, Mrs Denise Rossi won $3.1 million US dollars ($4.6 million AUS dollars) the lottery and eleven days later filed for divorce. Denise did not mention the winnings to her ex-husband and failed to disclose the windfall of $3.1 million in their property settlement. Two years following the property settlement, Mr Rossie came to know of his ex-wife’s lottery winnings and obtained a Court ordered injunction. Mr Rossie filed in Court and successfully obtained an order that Denise pay her ex husband the entirely of her winnings back in instalments. In this article, we will explore these questions and provide you with insights on handling lottery winnings during or after divorce. Q: What Happens if I Win the Lottery after Separation from my Spouse or Defacto Partner - How Do Family Law Property Proceedings Actually Work Winning the lottery can be an exhilarating experience, but it may also bring about complications, especially if you are going through a family law property settlement. 1. Do I Have a Duty to Disclose My Lottery Winnings? Similar to the US, parties to a property settlement in Australia have an obligation to make full and frank financial disclosure.[1] This generally includes bank statements, pay slips, tax returns and disclosure of any windfalls. A consequence of non-disclosure during proceedings, the party who fails to disclosure documents may be held guilty of contempt for not disclosing the document and may be ordered to pay the other party’s costs.[2] Further, the Court the Court may stay or dismiss all or part of a party’s case who fails to disclose documents.[3] 2. How are Family Contributions during the Relationship Important? During marital or de facto separation proceedings, Courts will often consider the contributions made by each spouse or partner to the family during the relationship.[4] This includes both financial contributions, such as income earned, as well as non-financial contributions, such as caring for the home or raising children.[5] Timing is of particular importance to a determination of contributions.[6] Contributions made at the beginning are typically given less weight than contributions made towards the end of the relationship.[7] In addition to contributions of parties to the relationship, a Court must also be satisfied that an Order is just and equitable.[8] Q: How are Windfalls, and Lottery Gains treated in Family Law Property Proceedings – What Does It All Mean? 1. Q: What if I Win Big Before Separation? A windfall gain [...]

2023-08-11T12:41:26+10:00August 11th, 2023|Family Law, Litigation, Wills & Estates|

R E S P E C T… Find out what it means to me!

R-E-S-P-E-C-T Celebrity Estate Dispute Known as the Queen of Soul with hits such as ‘Think’, ‘I Say a Little Prayer’, and ‘Respect’, Aretha Franklin sadly passed away in 2018 at the age of 76, and while her death was over 5 years ago, the battle for her estate continues in the USA. History of the Dispute During her lifetime, Aretha prepared two separate handwritten Wills. The first Will was written sometime in 2010 while the second Will was written in 2014.  The 2014 Will was hidden in Aretha’s couch and subsequently found after her death, both inscribing some alterations as to which of her sons would inherit certain aspects of her estate. The 2010 Will lists Aretha’s niece, Owens, and her son, White, as co-executors and says Kecalf and Edward Franklin, Aretha’s other sons, “must take business classes and get a certificate or a degree” to receive a benefit from the estate. The 2014 Will crossed out White’s name as executor and has Kecalf Franklin in his place. There was no mention of business classes. Kecalf Franklin and the grandchildren would get his mother’s main home in Bloomfield Hills, which was valued at $1.1 million when she died but is worth much more today. Arguments put forward by Kecalf and Edward included that the 2014 Will out-dated the 2010 Will. On the contrary, it was argued that the 2014 Will is merely a draft, not being official and legal in nature particularly due to it being difficult to decipher through its handwriting. Franklin’s executor who helped oversee Franklin’s estate was unable to determine which Will was deemed valid during the probate process meaning the matter went to trial. It was found that the 2014 Will was established to be a valid Will by a jury, ending a long dispute between Franklin’s children. What would have happened if the dispute was considered by the Australian Courts? Usually, the Will with the most recent date that was validly written and executed is a person’s last Will and testament. This would dictate how the estate is divided. However, if you find a previous Will and there is a reason to suspect or contend that the latest-dated Will was not created validly, the penultimate valid Will may be binding. Testamentary intention is another important factor that a court will consider when determining the validity of a Will, because it distinguishes the Will as being written with the intention of being the last Will and testament. It is usually expressed in a strong opening statement, identifying the testator and their intention to make the Will and revoke all former Wills. More importantly, the Court will consider whether the document itself is capable to show it is intended to be a Will. The Court has recognised Wills deemed valid that contain a convincing testamentary intention. Including words such as ‘My Will’, could suggest you, as a testator, are aware of your assets with the intention of passing them on. How we can learn from this [...]

2023-08-10T14:19:54+10:00August 10th, 2023|Litigation, Wills & Estates|

Friends with Benefits Inherit

Friends with Benefits to Inherit We’ve all seen a movie like ‘No Strings Attached’ starring Natalie Portman and Ashton Kutcher, where friends try to have their cake and eat it by extending their relationship to the bedroom while trying to let feelings interfere with the friendship.  As it is in real life, casual relationships or ‘friends with benefits’ can become messy socially, but not many people think about the legal ramifications that can play out. In this article, we will look at what happens when a friend who was receiving ‘physical benefits’ does not benefit financially from their lover’s estate when they die under a Will. Challenging An Estate When it comes to inheriting property upon the death of a loved one, the relevant legislation in Queensland entitles a family member or spouse to make a claim for a distribution from the estate if the Will gives them less than they believe that they deserve or if they are left out entirely. The legislation also grants de facto partners the same inheritance rights as legally married couples, with the ‘de facto’ meaning a relationship between two people, from either the same or opposite sex, which lasts for a period of two years or more and being up until the deceased’s death. However, does a ‘friends with benefits’ relationship qualify as a de facto relationship, thus allowing the surviving ‘friend’ to make a claim against their lover’s estate? What the court will consider? The Courts have had a few opportunity to consider this modern type of relationship and have largely interpreted them on a case-by-case basis.  Nevertheless, when presented with this question, the court will consider among other things: the length of the relationship; the nature and extent of common residence; and whether there was or had been a sexual relationship. Recent Cases Interestingly, the NSW Supreme Court was recently tasked with considering a family provision application based on a ‘friends with benefits’ relationship in the recent case of Estate of Zaheer. In this case, the presiding judge, Justice Hallen, concluded that ‘friends with benefits’ meant “a friend with whom one has an occasional and non-committal sexual relationship”.  However, the crux of the dispute came down to the question of whether the friends with benefits relationship could also be interpreted at the higher threshold of a de facto relationship.  In the end, Justice Hallen ruled that the applicant should receive 15 percent of the deceased’s estate on the basis that the friends with benefits relationship had certain aspects of a de facto relationship arrangement, namely the fact it lasted up until the deceased’s death. In another case, the Estate of HRA deceased, the Court made similar interpretations with the key takeaway being just how important it is that relationship lasted up until the death of the deceased person – though it did not have to be physical up until the death.  However, in this matter, this could not be established after it was found that the last real contact the [...]

2023-08-03T13:32:04+10:00August 3rd, 2023|Family Law, Wills & Estates|

CIRCUMSTANCES ALLOWING A WILL TO BE CHALLENGED AND VARIED, OR INVALIDATED

INTRODUCTION A Will is a legal document that outlines the distribution of a person's assets after death and must meet specific legal requirements to be considered valid. In Queensland, a Will must be in writing, and the testator must sign the Will in the presence of two witnesses who then also sign. A Will that does not meet these legal requirements can be declared invalid. There are also other circumstances which can render a Will invalid. For example, a Will can be challenged and varied, or even invalidated by the Court because of undue influence, fraud or forgery, or lack of testamentary capacity or testamentary intention. In these instances, the Court will then consider the evidence presented and decide based on the case's merits. If the Court finds in favour of the individual disputing the Will, it may order that the Will be set aside or varied to reflect the deceased's true intentions. The Court may also request that costs be paid by the estate or the party responsible for the dispute. CIRCUMSTANCES ALLOWING A WILL TO BE CHALLENGED AND VARIED, OR INVALIDATED 1. Undue Influence Undue influence occurs when someone exerts pressure on the person making the Will, known as the testator, to create a Will that does not reflect their true wishes and is another way the validity of a Will can be challenged. If a beneficiary, caregiver, or family member coerces the testator into making a Will that benefits them unfairly, the Will could be invalidated by a court. 2. Fraud & Forgery Similarly, a fraudulent or forged Will can also be struck-out. A fraudulent Will is created by someone other than the testator, while a forged Will is a document that appears to be signed by the testator but is not. 3. Lack of Testamentary Capacity or Testamentary Intention The “testamentary capacity” of the deceased is also an essential requirement for a valid Will. For a Will to be valid the testator, must have the mental capacity to understand what they are doing by executing the Will. Accordingly, a Will could be deemed invalid if the testator lacked the capacity to understand the nature and consequences of their actions at the time that they made the Will. Importantly, the testator is presumed to have testamentary capacity unless the court is presented with compelling evidence to the contrary. Further, to be considered valid, a testator must not only have the testamentary capacity to make the Will, but the Will must also accurately reflect the testator’s expressed “testamentary intention”. The language in drafting a Will must be clear and precise, as ambiguity can lead to confusion and disputes. If the Court cannot interpret the testator's intentions from the language used in the Will, it may be invalidated. In other words, at the time of executing the Will, not only must the testator know what they are doing, they must have intention to create the Will and its consequences. Usually, when the validity of a Will is challenged [...]

2023-04-11T12:56:11+10:00April 10th, 2023|Wills & Estates|

Solicitor or Public Trustee?

SOLICITOR OR PUBLIC TRUSTEE? A will is a legal document that details your final wishes and instructions for the distribution of your assets after your death. While a public trustee is a government-run organization that provides legal services to individuals, including the administration of estates, there are several reasons why you should consider instructing a Solicitor to draft your will and thereafter assist with the administration of the estate. Tailored to your specific needs: A will created by a Solicitor can be tailored to meet your specific needs and goals. This will ensure that your assets are distributed according to your wishes and that your family is taken care of after you're gone; Peace of mind: A will created by a Solicitor will be legally binding and can provide peace of mind that your assets and loved ones will be taken care of according to your wishes. The public trustee, on the other hand, may not have the same level of expertise or knowledge of your specific needs and wishes; Avoid potential complications: A well-drafted will can help avoid potential complications and disputes over the distribution of your assets. A public trustee may not have the same level of expertise or knowledge of the law, which can lead to mistakes or disputes; and Cost savings in the long run: While paying for a will may seem like an additional expense, it can actually save you money in the long run. A poorly drafted will or mistakes made by the public trustee can lead to legal battles and additional expenses, which can add up quickly. Australia has its own set of rules and regulations regarding the fees charged by public trustees for managing estates. In most cases, these fees are based on a percentage of the value of the estate, with a sliding scale based on the size of the estate. The exact fee schedule can vary depending on the state, so it's best to consult the specific guidelines for the state in question to ensure you do not incur any unnecessary fees & charges. Example of Fees In New South Wales the Public Trustee outline their schedule online for various services including drafting of a will, executorship, and deceased estate management. Often, beneficiaries of Public Trustee appointed estate matters have complained about excessive fees, long delays in settlement and poor communication. If you had a choice, which scenario would you choose? a) Engage the Public Trustee to draft a free will, knowing your beneficiaries may be subject to high fees and delays; or b) Draft a will through a Solicitor for a minimal fee, nominate the executor of your choice with minimal or nil fee and faster settlement. A Public Trustee drafted will may save you money initially but will ultimately be funded by your beneficiaries – Example below. Joe Citizen engaged the Public Trustee of NSW to draft a free will. The Public Trustee were noted as the Executors of the Estate. Joe sadly passes away the following year. [...]

2023-02-09T11:28:23+10:00February 8th, 2023|Wills & Estates|

Organ Donations in Australia

Organ donations and transplants are far more important than you would think. Currently, only one in three Australians are registered to donate their organs and tissue after death, despite 69% believing that registering is important. This belief is very much founded as there are currently around 1,750 Australians on the waitlist for an organ transplant and 13,000 additional people on dialysis who need a kidney transplant. The wait-time for recipients on the waitlist varies in Australia between six months and four years, sometimes even longer. Despite this, a significant number of individuals believe that it is too difficult to become a donor or the process to become one takes too long. However, almost anyone in Australia can donate their organs and tissue, and it is not a complicated process.  Walk to End the Wait Initiative –  Gordon Rutty or Gordo to most people, is a passionate local Gold Coast resident who wants to raise awareness on the organ donation process in Australia. To increase awareness for organ donation in Australia, Gordo is participating in the "Walk to End the Wait" where he will walk 42 Kilometres for 14 Days, and in “The Orange Ball”, which will be held on Friday, 7 October 2022.  When asked about why he was passionate about this particular cause, Gordo stated that:  “Children with transplants have often experienced significant interruption to their schooling, sporting, and social life. They have missed out on team sports and the benefits of physical activity and sport. Transplant Australia helps these kids adapt to a life with a transplant and to focus on their physical wellbeing. At the World Transplant Games, they can meet other children who have a shared lived experience. Many of them get to take home a medal for ‘show and tell’. Your support will provide subsidies for up to 50 transplant children and their families from around Australia. The money will help them with registration, accommodation, travel, and uniform expenses to represent Australia.” These fundraising efforts are to celebrate children with transplants and their renewed life at the 2023 World Transplant Games in Perth.  For more information on Gordo’s mission, you can visit The Walk to end the wait webpage and the Gordon Rutty homepage. How to become a donor  In Australia, a person with capacity to make decisions for themselves can choose to donate their organs and tissue after death as long as they are over 18 and have recorded their consent with the Australian Organ Donation Register (AODR). However, if you are 16 or 17, you have the option to record your intentions to donate your organs and tissue with the AODR upon your death.  For more information on how to become an organ donor, you can visit The Australian Organ Donor Registry. When organs and tissue can be donated –  Deceased Donor –  For an organ and tissue donation to validly occur, it is essential that the deceased has legally died (i.e., brain death or cardiac death).  To be classified [...]

2022-09-05T15:55:55+10:00September 5th, 2022|Wills & Estates|

Missing the Original Will?

Missing the Original Will? What to do if you can only find an electronic copy or photocopy Normally, when a loved one has passed, the next of kin must locate the original Will (see our article on locating original Wills), so the named-executor can apply to the Queensland Supreme Court Registry to administer the deceased estate. However, what happens if the next of kin can only find an electronic copy or photocopy of the final Will? In these circumstances, the executor named under the Will can apply for a grant of probate and try to prove to the Court that the copy is a true copy of the final Will. A judge hearing the application must be satisfied that the copy is an accurate reflection of the deceased’s last wishes with respect to a number of factors, such as: Whether the deceased actually intended this to be their final Will; Whether the original Will was deliberately destroyed by the Will maker during their lifetime;Whether the terms of the Will were clear; and Whether the original Will was validly executed, among other things. If satisfied, the judge can order that probate to be granted using the copy of the Will despite the original Will not being located. These types of application are not made too often, but applicants can be successful, such as in the recent case of In the Will of Valerie Eve Robson (deceased) [2020] QSC 52. Alternatively, the next of kin can decide to apply for a grant of letters of administration, which is the application made when someone dies without a Will, so that the estate can be administered pursuant to the rules of intestacy. Determining which course of action is best may come down to the content of the original Will vs. what will happen pursuant to the rules of intestacy. If any of these situations are applicable to you, please do not hesitate to contact our estates team to discuss prospects and next steps. Summary Should the original Will be lost and only a photocopy or electronic copy remain, the named-executor in that Will can still apply for probate, but they will only be successful if the presiding judge is satisfied that the copy of the Will reflects the true intentions of the deceased. Alternatively, the next of kin could apply for letters of administration. Legal advice should be sought if you find yourself in this situation. Our Services Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia. Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them.

2022-08-18T14:31:06+10:00August 3rd, 2022|Wills & Estates|

Finding a Loved One’s Original Will  

Loved one passed away, what to do with their estate  Where a person passes way, they may leave behind a Will in which they state, among other things, what their beneficiaries receive and who they appoint as the executor.  The executor is responsible for administering the estate, which generally involves the executor gathering all the assets, paying any liabilities that the deceased still owes, and then distributing the remainder to the beneficiaries pursuant to the terms of the Will.  In most cases, to do this, the executor needs to obtain a grant of probate from the Court, which is done by way of an application with the original Will and death certificate.  So, after the death of a loved one, it is very important for the executor (usually the partner, child, or a close friend of the deceased) to obtain the original Will.  If the original Will cannot be found, feel free to check out our article on Missing Wills.  First things first, where can you find a Will? In an ideal world, a Will maker (also known as a ‘testator’) will tell their loved ones and proposed executor where they have stored their important documents, particularly their Will, so these can be easily found in case of an emergency or upon their death.  However, this does not always happen, and can lead to the Will becoming lost, usually because it is misplaced during testator’s lifetime, or the executor / family members cannot locate it.  Nevertheless, if the family members are unaware if the deceased even had a Will, the first step in trying to locate it is thoroughly searching the deceased’s home.  If this does not render results, there are a number of further steps that you can take to try to determine if find it or determine if one exists.  Finding the Original Will  If the deceased had legal representatives and / or accountants during their lifetime, the next of kin can contact these parties to confirm if they have the original Will, as it is common practice for law firms and accountants to hold original documents for their clients.  At the very least, a solicitor may be able to confirm if they drafted a Will for the deceased and whether they hold a copy.  If no luck there, the next of kin could also contact the deceased’s family and friends, their bank, the Queensland Law Society, and the Public Trustee regarding the existence of an original Will.  Ads can also be placed in the classified section of the local newspapers where the deceased lived asking for information about the Will.  Legal representatives can also be engaged to assist with this search.  A next of kin in this situation will probably be wondering, “how far do I have to go to figure out if there was a Will, if all my searching cannot find it?”.  At the end of the day, at law, the next of kin must take reasonable steps to try to locate the original [...]

2022-08-03T11:26:09+10:00August 3rd, 2022|Wills & Estates|

Adoption’s Effect on the Right to Inherit

Historically, an adopted child could only inherit from their biological, and not their adoptive, parents. However, as the laws that govern an individual’s ability to inherit have changed with time, this is no longer the case.  Considering this, two questions concerning an adopted child’s right to inherit arise:  Can an adopted child inherit from their biological parents?  And how can an adopted child fight for inheritance from their biological parents? This article will provide Queensland-specific answers to the above questions. An Overview of the Right to Inherit in Australia as an Adopted Child: As an adopted child, there are two primary considerations involved in determining your rights to inherit: the state or territory where the adoption took place; and the adoption laws that existed in that location at the time the adoption took place. Can an adopted child inherit from their biological parents in Queensland? Yes, but only if they are provided for in their biological parents’ final Will.   However, if they are excluded from the Will, then unfortunately they have no right to make a family provision application to try to obtain adequate provision from that parent.  Applying the above considerations in the Queensland jurisdiction, children adopted in this state on or after 1 August 1965 cannot inherit from their biological parents, meaning that the law only allows an adopted child to inherit from their adoptive parents but not from their biological parents. In short, generally an adopted child cannot inherit from their biological parents in Queensland, if they were adopted on or after 1 August 1965, and excluded from their Will. How the Law Operates: In the eyes of the law (in Succession Law at least), when a child is adopted, they effectively cease being a child of their biological parent(s),  and vice versa with the parent. As such, the adopted child loses their right to inherit from those biological parent(s). Naturally though, the adopted child will immediately garner rights to make a claim against their adopted parents’ estates, as if they were those parents’ biological child.  Summary: An adopted child’s right to inherit is generally determined by the state or territory where their adoption took place, and the adoption laws that existed in that location at the time their adoption.  In Queensland, an adopted child, who has been excluded from their biological parent’s Will has no right to inherit from that deceased estate, and has no legal recourse to fight for provision from it either. Our Services Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia. Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them. By Steven Hodgson & Bernadette [...]

2022-07-05T11:24:00+10:00June 30th, 2022|Blog, Wills & Estates|
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