Every year, Australian tax payers voluntarily pay the Tax Office millions of dollars in “Death Taxes” - I'd like to make sure you are not going to be one of them. Proper Estate Planning ensures that your estate goes to those you care about, and not the Tax Man.

Does the “Simple Will” protect your family?

Many people believe that their affairs are simple. You may wish to simply leave everything to your spouse, and if they die before you, then to your children. Simple. Right? Unfortunately, this is rarely the case.

There are pitfalls of preparing a “Simple Will”. A “Simple Will” may seem to fulfil your needs on the surface, but there are often many other issues that you may not have considered - its important that your estate goes to your family and loved ones – and again, not the Tax Man.

Will the Tax Man smile when I die?

Imagine $1.5 trillion "up for grabs!" That is the projected total value of estates from Australians who die in the next 20 years. The question is, who gets that money: the Tax Man, Trustee Companies or your family?

Careful planning reduces Capital Gains Tax, Stamp Duty, income tax and the 17% or 32% superannuation tax on adult children. A 3-Generation Testamentary Trust and Superannuation Testamentary Trust provides the best protection for your family.

A 3-Generation Testamentary Trust is the most effective safeguard to put into your Will to dampen the effects of Capital Gains Tax and Stamp Duty.

An example of a Will without a 3-Generation Testamentary Trust...

Tom always wanted to build his retirement home on the canals where he had purchased a block a few years ago. Unfortunately, Tom died before realising his dream to build on the block.

As a dutiful husband, Tom left everything to his much-loved wife Jenny.

Little did Tom know, but Jenny never shared Tom’s vision to live by the canals. Their 2 children did share Dad’s vision. Jenny decided to give the children the block of land. After all, it was now interfering with her aged pension and pharmaceutical entitlements.

The gift made the children excited. The block had increased in value to $175,000. However, the children were less excited when they got a Stamp Duty bill of over $4,200.

Later, Jenny gets a notice from the Tax Office to pay Capital Gains Tax of $28,000.00 on the “disposal” of the block. (“But I just gave it away!” she lamented)

The nightmare continues when Centrelink advises Jenny that the gift reduces her entitlements because of the Non-Abandonment rule.

Tom could have put 3-Generation Testamentary Trusts into his Will. Tom’s Will then leaves everything to his wife, children and extended family. Tom also makes his wife Trustee of the 3-Generation Testamentary Trust. Jenny controls the assets but does not own the assets for tax purposes.

Does that mean that Tom’s estate goes to Tom’s mother-in-law and Uncle Harry? Do the children have control over what Jenny does with her husband’s estate?
No, to both questions.

Jenny has full control of who gets what from the estate. With a Testamentary Trust, Jenny can give everything to herself or give some things to the children, grandchildren or any of the extended family as she so wishes. With her Accountant’s help, Jenny can take advantage of the lower income tax rates paid by some members of her family. Now that is flexibility.

Flexibility: 3-Generation Testamentary Trust?

In the above case, Jenny could have merely distributed the block to her children through Tom’s Will. Even if the transfer took place years after Tom’s death, the transfer is direct from Tom to his children. Therefore:

• No stamp duty is payable because Jenny did not own the land - she merely controlled the land in the Testamentary
• There is no “disposal” of the asset. Therefore, Jenny does not have a Capital Gains Tax bill – CGT Generation Skipping.
• Alternatively, the asset could have been kept out of Jenny’s hands to protect her Centrelink

Stop government meddling? Mutual Power of Attorneys and Cascading Power of Attorneys...

Sadly, your spouse gets Alzheimer's disease at 61 years of age. Your children have left home. You decide to sell the large family home. You want to buy a smaller home closer to amenities that can help your spouse.

The family home is in both your names. Your spouse no longer has the legal capacity to sell the home. While there are many different types of Power of Attorney, you have none. Therefore, your only option is to apply to a government instrumentality for permission to sell the home.

During this Tribunal procedure, your children are asked to swear in court as to whether you are a “spendthrift”. Other people such as friends, other family members and even nosey neighbours may be contacted by the government to see whether they support your application. At the hearing, you are cross- examined as to whether you are a “good person” to look after the affairs of your partner.

Eventually, this government department tells you that you are allowed to sell your home. However, it can direct that you hold your spouse’s half of the proceeds in a separate bank account. If you need to buy toilet paper for your partner then you may need to provide a receipt.

Without all the proceeds of the sale of the home, you cannot afford to buy another property.
Overcome the government’s meddling with both a Mutual Power of Attorney and a Cascading Power of Attorney.

What do I do now?

Call Westmount - we can build the estate planning documents you need with our lawyers (Dr Brett Davies of Legal Consolidated). These estate planning documents essentially include:

1. 3-Generation Testamentary Trust Wills
2. Power of Attorneys
3. Medical Power of Attorneys

Don't leave your estate planning affairs to chance - the remedy is much easier and less expensive than you might think.                                                             

Rick Maggi