Did a nice person, from the government, give you a ‘free’ Will?
Did the Public Trustee make your spouse and children the Executors? Did they quietly slip in the “Public Trustee” as an Executor as well?
As Executor, the Public Trustee charges a percentage of your estate.
You paid tax all your life. Now the government wants to take a percentage of what is left in Executor fees.
Whether alone or with others the Public Trustee charges as your Executor. As your Executor the Public Trustee makes money. Instead, most people appoint their family members, only, as Executors.
Normally, in Australia, your spouse and then children are the Executors. Who do you trust more? The government or your family?
The Change the Executor in your Will with a codicil replaces the Executors in your Will. This is without changing your actual Will. Your Wills stays the same, except you have a different Executor. You may wish to change the Executor for a number of reasons:
The Change Executor Codicil allows your family to escape the Public Trustee and Victorian State Trustee. This is by removing the Public Trustee and putting in your own family as the Executors.
“I am from the government and I am here to help you,” said Mr Public Trustee and State Trustee. That does not sound very convincing, does it?
You can appoint in your Codicil children under 18 years of age and ‘unborn children’. Just in case they are still under 18 years of age when you die then also appoint an uncle, aunt or a trusted friend as well. If your children are over 18 then the uncle and aunt can renounce the job of Executor.
1. If your children don’t get on together then you should appoint them all as executors. Contrary to popular rumour, the job of the executor is one of servant – not master. The executor can’t boss the beneficiaries. The beneficiary, however, can boss around the executors. Therefore appoint all the children if they fight.
2. If the children all love each other and get on well, then appoint them all as your executors.
Appointing all of the residuary beneficiaries avoids the perception of ‘favourites’. There is no limit to the number of Executors you appoint.
Our law firm is currently acting for an Australian deceased estate where the four Executors (the children) have never been to Australia and don’t speak English. Your children do not need to be living in your home State to be Executors.
You need to appoint an Executor or Executors in your Will to handle your affairs after you die. Your Executor arranges the funeral, applies for Probate, pays debts and distributes your assets according to your Will. These are not normally difficult jobs and the Executor can get professional help from their accountant, financial planner and lawyer. In fact, if the children wanted to they can even give the job of Executor to the Public Trustee after you die. However, I have been practising in Estate Planning since the 1980s and I have never seen a child do that. Why waste the money?
It is not only the Public Trustee that makes money being your Executor. Some lawyers and professional trustee companies are also into making money being your executors. You can remove them as well by building this Codicil.
You have the right to get your original Will from the Public Trustee, law firm or professional trustee. You don’t have to give them a reason. Often, you and your spouse may need to pick them up personally. They won’t make it easy for you.
Take in your passport and drivers licence. You need to first listen to a long story about how it is better to keep the original Will with them to ‘help your loved ones’. After that, by law, they must hand them over.
There are four death duties in Australia:
Did the Public Trustee mention this? Did they help with the taxation issues?
The ‘free’ Public Trustee Will is often drafted without advice from your accountant or financial planner. Did the Public Trustee contact your accountant or adviser for advice? In my view, the Public Trustee should not be giving financial planner or accounting advice. This is irrespective of what the legislation allows it to do.
If your Will is perfect, except for the choice of Executors then merely build this Codicil to update the Executors. However, the old Will may not have any tax benefits, such as 3-Generation Testamentary Trusts in your Will. There are 4 death taxes: CGT, income tax, stamp duty and 32% tax on your Superannuation going to adult children. To learn about Wills that have tax savings see here.
Also, they do not put Divorce Protection Trusts in their Wills.
Telephone us for help building the Codicil to escape the Public Trustee.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm
Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]