Wills, Funerals, and everything nasty.....

[Raddles]

Hi there
if an executor, such as the Public Trustee, is going to charge a commission - it has to be in the will and the amount specified needs to be in the will.
If a private person wanted to apply for commission they would have to apply to the Supreme Court for a specified rate (unless it was prescribed in the will).
I recall once that when working in Adelaide, talking to the Probate Registrar, he said that some of the trustee companies manage to lose those wills if they don't make enough out of them (I can't recall which company he was talking about at the time), but if you have a relative who has some smarts - and some administrative know how - they are the better ones to appoint as executors.
And yes there is a presumption that if 2 people die at the same time in the same accident, the older will be presumed to pass away first.
There has been a lot of changes in the procedures for will making and more recently there have been changes to allow a court to step in and make a court made will in the circumstances. You may recall the matter where a mother was locked in the boot of her car in Melbourne by her husband and her lover. She died after a period in a coma leaving a will which left everything to her husband. Her daughter challenged that will and the court was prepared to make a court made will leaving the estate to the children. There is also legislation which will not allow a party to profit from a crime that was also referred to.
So it is possible - that the lady you referred to Wylie - might be in a different situation today if it happened today. Even though no will was found - the evidence of the neighbour may be enough to have a court made will which would have allowed the lady to live in the property with the Salvos benefitting afterwards.
thanks

 

[Skye]

http://www.statetrustees.com.au/index.cfm?pageID=180&pageREF=90&

This is higher than I recall, Pushka. Might have to look for an alternative.

 

[Pushka]

http://www.statetrustees.com.au/index.cfm?pageID=180&pageREF=90&

This is higher than I recall, Pushka. Might have to look for an alternative.

Ouch, on a 2 million dollar estate (which it could be with Insurance policies etc etc), they would charge $110,000 Surely not, maybe I am missing something..... I think I am, they can charge for other stuff as well......

 

[Skye]

Make that I will be looking for an alternative...

 

[Novar]

Just another will trap for the unwary.
I know an old bloke (widower) who remarried in his 70's, his will said "everything to my children". with this wording, his new wife's children were also entitled to a share and his biological children were short changed. So ... name your children!!

 

[Dazz]

We got the ol' Testamentary Trust lined up, along with the detailed will and Power of Attorney and all that gumpf lined up about 18 months ago now.

Came to about 38 pages in four separate sections, detailing every twist and turn that could eventuate. Covers the lot. Cost all up was $ 2,200....and $ 800 of that was tax deductible so not too bad to square away your affairs.

Of course, it doesn't help the investor one iota as you'll be dead as a door nail. What it does do is shield the family members left behind from the ravages of Govt taxes and potentially curtails any squabbles within the family.

With that thought in mind, I urged my parents to undertake a similar exercise. My father who handles the fin. affairs saw what we were doing and sort of agreed.....but unfortunately got his back up when he saw all of the legal waffle in there. I was honestly shocked to see his reaction. The shutters went up, the blinds came down.

 

[steveadl]

The other was that they were specified as trustees- and there was nothing to specify how much they could take out of the estate for their services. Potentially (even though they are a very large and ethical organisation) they could have taken everything.

My lawyers along with another family member will act as my executors, but the lawyers fees are not a % of the estate - just an hourly charge for their time spent on the matter.

We got the ol' Testamentary Trust lined up, along with the detailed will and Power of Attorney and all that gumpf lined up about 18 months ago now.

Came to about 38 pages in four separate sections, detailing every twist and turn that could eventuate. Covers the lot. Cost all up was $ 2,200....and $ 800 of that was tax deductible so not too bad to square away your affairs.

Of course, it doesn't help the investor one iota as you'll be dead as a door nail. What it does do is shield the family members left behind from the ravages of Govt taxes and potentially curtails any squabbles within the family.

Yeah same here Daz - cost $2,200, and has all the TT's set up. Shame we don't benefit out of them, but good for the kids.

 

[Pushka]

What we have done in the event of both myself and hubby popping off together (we are travelling to Vietnam in a few weeks, hence the urgency) is that both sons (young adults) have been appointed Executors, but in the event of a disagreement, we have also appointed a lawyer from the law firm to act as a third Executor. Also, as youngest son is still at Uni, his HECS fees, and an annual allowance are paid to him until an anticipated date of completion of his degree, so that he is given the same as our first son. That explanation has to be put into the will to avoid any disputes later. But we have told both sons this anyway, so no surprises.

I have also recorded all of our Financials (personal Bank Accounts, Company Bank accounts, Assets, liabilities, Insurance policies) and left them in a place at home, along with the wills so the kids will be able to just collect the envelope and take it to the Accountants and Lawyers to settle everything. And a copy left at work for safe keeping too! We also have memorabilia - like a Sydney Olympic Torch, Sheffield Shield Winner medal (cricket), several signed personal letters from Sir Don Bradman, even a copy of "The unauthorised (!) biography of Shane Warne" signed by Shane Warne etc etc - goodness knows how they will settle all that!

 

[CairnsInvestor]

Spoke to a lawyer recently regarding doing a will & he just said for me to write it up. Saw the following on the net (extract from www.law4u.com.au/cgi-bin/factsheet_right.asp?article_id=501)

Can your executors be your parents? Without $700 - $thousands on a will or doing one of those cheap DIY wills, what exactly do you put else in the will. Maybe I need a better lawyer well-versed in wills & estate planning. Help please?

[ THIS IS THE LAST WILL AND TESTAMENT OF WILLIAM FORYOU of 25 INTERNET PARADE, CYBERSPACE in the State of New South Wales.

I REVOKE all former Wills and Testamentary dispositions made by me and DECLARE this to be my last Will.

I APPOINT John Executor of 28 Cyber Street, Webville to be Executor of my Will and Trustee of my estate. If my trustee is unable or unwilling to act, or dies before my estate is distributed, I appoint Mary Executor to be Executrix of my Will and Trustee of my estate.
SUBJECT to the payment of my debts, funeral and testamentary expenses and all probate and other duties payable in respect of my estate or in consequence of my death I GIVE everything I own to my wife, Susan Foryou.
BUT if the said Susan Foryou fails to survive me, I GIVE the balance of my estate to my Trustee UPON TRUST for such of my children who survive me and attain the age of eighteen years absolutely and if more than one in equal shares.
(a) I EMPOWER my Trustee to apply for the maintenance education and benefit of any minor beneficiary as my Trustee in their absolute discretion shall think fit the whole or any part of the capital or the income or both of that part of my estate to which that beneficiary is entitled or may in the future be entitled.

(b) I GIVE my Trustee a discretionary power of sale over the said estate.

IT IS MY WISH that Paul Webmaster should be the Guardian of my children until they attain the age of eighteen years.
IN WITNESS whereof I have hereunto set my hand this day of one thousand nine hundred and ninety eight

Signed by the said Testator )

in our presence and witnessed )

by us in the presence of )

(name of witnesses) and each other.)

Signature of 1st witness

Signature of 2nd witness ]

 

[wylie]

Having seen what can happen when somebody has done a DIY will, I would spend the couple of hundred it would cost for a simple will and save a bucket load of trouble down the track.

My father-in-law really made a royal mess, but then, he could not be told anything by anyone..... (I won't get started on that subject )

 

[Pushka]

Looking at mine, there is usually some stipulation as to whether you want to be buried or cremated; a provision of 30 days for one partner surviving the other. Mine has other details which outline why we have done things, but which are not relevant to you. It seems to cover the major major stuff though! Except the date, the date needs updating!

 

[Raddles]

Hi there
can I recommend you do sit down with a lawyer and review your particular situation.

Your will needs to appoint the relevant parties including your executors, the guardians for your children - and if you have trusts - you will need to review who are the appointors and whether new ones need to be organised in your will. If you are a director or shareholder of a company - you will need to review whether you have a power of appointment.

You will need to consider your assets and liabilities and how it will be dealt with. For example if there is likely to be a capital gain - is it the beneficiary or the estate who will become responsible for payment.

You may like to consider the testamentary trusts that Daz mentioned - which allow your children to have the benefit of adult thresholds on distribution.

You will need to consider the powers you want to give to your executors - are they to sell all your assets or keep them running as a going concern - this is particularly relevant if you also have businesses involved.

Consider other aspects which will not be covered by your will - what are you doing with your superannuation? - have you nominated your executor as the party to receive funds so the distribution can go in accordance with your will or are you going to give the trustees of your fund a binding nomination as to who you want to benefit.

Have you got adequate insurance or funds to cover your funeral?, also if your portfolio is heavily geared - is there insurance to payout some of your loans?

From the above comments you can see there are a lot of issues to review - and it will depend upon your particular situation. If you review it with a lawyer and there are problems - there is professional indemnity insurance to fall back on - if you do a DIY will - you may miss something and cause your family no end of strife.
thanks