Loan from child to parent (including aged care)
Lending money to mum and dad – Loan to Parent
1. Sad child
Loan to parent? You give your mum $400,000 to get her into quality aged care. She then marries Ken. Later they divorce. The Family Court gives him half of the $400k. It is the only asset of the marriage. The Family Court is not interested that the money was a gift from you. Instead, build and get mum to sign this Loans to Parent Agreement. loan to parent
Or, mum dies. Your siblings say ‘thank you for giving mum the money as a gift. Mum’s Will states everything equally to us. There are no Loan to Parent Agreement to say it was a loan – so it was a gift from you. Yipee, what a great windfall.’
2. Smart child
You l
end mum $400,000 to move into quality aged care. You build and get her to sign the parent Loan Agreement. She marries a guy in the retirement home. They then divorce. He wants half of her assets. The toy boy states that her assets are $400k. He wants $200k. The Family Court is shown the legally prepared Loan Agreement. The Family Court orders that he gets nothing. This is because your mum’s net assets are nil.
Mum dies. Your greedy siblings are pleased to see that Mum’s estate is $400k from the sale of the nursing home. But mum’s estate has a $400k debt owing to you. You get your $400k back first.
To protect your parent loan build a legally prepared Parent Loan Agreement – on a law firm’s website. Homemade loan agreements may not work. They carry less weight with the Family Court and Bankruptcy Court. Why take the risk?
But I love my mum
There is nothing wrong with helping your parents financially. But protect the money in case:
1. of mum’s divorce lend money to parents
2. your parents go bankrupt
3. your dad suffers from drugs prescribed by his doctor
4. your mum suffers a mental condition
5. your parents stop loving you
6. you run out of money yourself
Documenting loan to parent
Never ‘give’ your parents money. Always ‘lend’ them money ‘payable on demand’. Get it back if something goes wrong.
With the Loan to Parent Agreement, you never rely on a verbal agreement. Build a Loan Agreement on our website. We are Australia’s only law firm website providing legal documents online. It puts everything in writing with rules about the loan.
Any tax issues?
There are no tax issues. The interest rate for the loan is ‘as advised by the Lender’. Therefore, while the interest rate is zero you have no income tax issues. If your mum separates from her toyboy you can increase the interest rate to draw more money out of the failed relationship. There is less money for the Family Court to give to your ex-father-in-law.
A loan isn’t always for a property, medical and retirement homes. You can also fund your parent’s Superannuation fund. Speak to your Financial Planner and Accountant about this tax effective opportunity.
When making a loan to parent:
1. talk with all your parents and your siblings together about the loans
2. never gift parents money – only loan them money (this protects both you and them)
3. don’t rely on home-made loans or IOUs – build a Loan Agreement
Can I just do a Loan Agreement on the back of an envelope?
In the movies, IOUs are often handwritten on a piece of paper. Sometimes instead of a Loan Agreement, someone does a ‘minute’. Both approaches fail. In Rowntree v FCT [2018] FCA 182 shows the additional care required to document even simple related-party transactions, such as loans. In this case, the taxpayer, a practising NSW lawyer, claimed he borrowed over $4m from his group of private companies. The Court said:
‘Mr Rowntree has not deliberately chosen to ignore the law. His evidence presented to the Tribunal suggests that he genuinely believed that there were arguments to support his view that a loan was in existence.’
He failed. Only a legally prepared Loan Agreement satisfies the ATO, Bankruptcy Courts and Family Court.
What do you get?
Press ‘Start Building’ button above to get our:
1. Loan to Parent Agreement – ready to sign
2. our law firm’s letter of advice. Press the above “Sample” button to see a sample
Contact us for more legal advice
You are building your Loan to Parent Agreement on a law firm website. Telephone us for legal advice. We can help you answer the questions.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers & Solicitors
National Australian law firm
39 Stirling Highway, Nedlands, WA
Mobile: 0477 796 959
National: 1800 141 612
Email: brett@legalconsolidated.com
The Borrower (a parent or a related party controlled by your parent) is the entity (human or company) who is going to receive the capital (e.g. money) from the lender (child or an entity you control).
The Lender is the entity (human or company) who is passing the capital (e.g. money) to the Borrower.
In this Loan to Parent Agreement, the person who is the Lender is lending the money and the person who is the Borrower is the person borrowing the money.
Why is it better to prepare my legal document on a lawyer’s website?
You are dealing directly with a law firm’s website, therefore you:
- retain legal professional privilege,
- benefit directly from the law firm’s PI insurance
- receive legal advice from us.
- You are supported by our 100% money back guarantee on every document you build.
How do I build the Loan to Parent agreement?
Answer the questions on our website
Read the Summary page
Lock and Build your document
Type in your Credit Card details
The Loan Agreement, our covering letter and Tax Invoice are emailed to you
Print and sign the Agreement
What do I get?
In the Loan to Parent agreemet, you receive an email that contains:
Loan to Parent Agreement
Our law firm letter of advice on our law firm’s letterhead and signed by one of our Partners.
Sometimes you don’t know the amount that you are lending. If you don’t know you can leave it as the default answer; “as lent from time to time”. This gives you some wiggle room.
If you do know but are paying it in instalments, then put it all in as one figure.
Otherwise, just put in the total figure. Remember to put in the dollar sign.
Sometimes you might not want to set a specific date in the agreement. You can leave it as the default answer; “payable on demand as demanded by the Lender”. This gives you some wiggle room.
If you want it all paid back on the one date, just enter that date in.
Word it how you like. For example
1) “Payable in instalments of 10% per calendar month”
2) “Half to be paid on 21 September 2018, and the remainder to be paid on 21 September 2019”
3) “$100 to be repaid weekly for 10 weeks starting from 4 July 2018”
There are five ways you can answer this question depending on how you’d like to do it:
1) If you are charging no interest, put the word “Nil”
2) If you aren’t sure what the interest rate is yet, leave it as the default, which is “as demanded from the lender from time to time”
3) You can put in a flat rate, for example, “5%” (don’t forget to put the % sign in)
4) Keep it variable, for example, “2% above the Commonwealth Bank interest rate”.
5) You can also use the inflation rate. You could word it something like “calculated according to the percentage increase in the Consumer Price Index (all groups) for the average of the capital cities of the Commonwealth of Australia (as published from time to time by the Australian Bureau of Statistics or body that takes over that function)”.
Loan to a Company:
Loan to a Spouse:
Commercial Loan Agreement:
Division 7a Loan Deed:
ATO Compliant Loan Agreement:
Loan to a Child:
Forgive Debt Agreement:
