Reviewing client Wills each year
Estate Planning and Wills are primarily the concern of the Accountant and Adviser. You know your client. You see your clients at least once a year. The end of financial year is a good time to sit down with your clients and review their Wills, Medical and Enduring POAs. Reviewing client Wills is an annual event.
The 8 questions the Accountant and Adviser should ask their clients:
1. Tax on Superannuation going to adult children?
At death, the tax rate on Superannuation is 17% or 32% when concessional Superannuation is paid to adult children. This is reduced by:
a) re-contribution strategies
b) putting a Superannuation Testamentary Trust in your client's Wills
2. Are the clients worthy of a 3-Generation Testamentary Trust or a less-effective Testamentary Trust?
A 3-Generation Testamentary Trust has these additional benefits:
a) the children can divide the assets differently without suffering stamp duty and CGT. For example, one child gets cash, one gets property and other gets the shares.
b) the children each get their own Testamentary Trusts. They are not locked in together.
c) each child decides for themselves whether they want any or none of their inheritance put into a Testamentary Trust. They are not required to set up Testamentary Trusts if they don't want one.
3. Any new children or marriages?
Generally, mum and dad leave everything to each other. This is in the first instance. And then, when both are dead, everything to the children equally. Reviewing client Wills includes checking if this is still the case.
Any newborn children? New grandchildren? Does the Will automatically cater for a wider class? Or is a new Will required?
Have any of the children become spendthrifts or likely to get divorced? Perhaps their Age of Majority should be increased from 18 or 21 to say 99 years of age. Our Tax Effective Wills include Bankruptcy Trusts.
4. Any specific gifts in the Will
It is dangerous to have specific gifts. Eg. $10,000 to John. Mercedes Benz SL to Jake. Reviewing client Wills includes removing Specific Gifts from Wills.
Your Will is a public document when you lodge it for Probate. Why tell the world what you own?
Also as you get older your family may sell some of those assets. Specific gifts are dangerous. Read further hints on this here.
5. Newly married? Newly divorced?
In most Australian jurisdictions your clients' Wills are revoked if they divorce or get married.
It works the other way, as well. Recently a lady died. She had separated from her husband many years ago. She never bothered to renounce her Will. At her death, everything went to her old husband. More information here.
6. Who can challenge your Will?
In all Australia States your parents, spouse, defacto, children and grandchildren can potentially challenge your Will. Do your clients need a Considered Person Clause in their Will? Build a Will here and read the hints regarding challenges to Wills and what to do about it.
7. Second Marriages
You leave everything to your second wife. When you die she promises to leave half to your children and half to her children. That does not work unless you have a Contractual Will Agreement. Build it online here - read all the free hints.
8. Trapped with a Public Trustee Will?
Our friends at the Public Trustee often provide your clients with a 'free' Will. Then, this government department charges fees to administer the estate. Build a codicil to remove the Public Trust as Executor. The Will still stands, but with your client's own family as the Executors. Better the family comes to you for financial planning and accounting advice to administer the estate. I wouldn't take advice from the government. Build your Codicil to change Executor in your Will here.
Legal Consolidated is the only law firm website in Australia offering legal documents online.
As you build these documents on our law firm website, read the hints and watch the videos. Telephone for legal advice on how to answer the questions.
Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
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