ClearLaw Articles - Estate Planning

ClearLaw Articles - Estate Planning http://www.cleardocs.com/clearlaw/estate-planning/index.html ClearLaw articles Testamentary trusts - an overview of the tax benefits testamentary-trusts-tax-benefits There are income tax and capital gains tax advantages of distributing assets through a testamentary trust. This article summarises those advantages. Mon, 16 Mar 2026 04:39:39 GMT Andrew Wright 383 Deeds of Variation and Deeds of Rectification: what is the difference and which should I use? Deed-of-variation-and-deed-of-rectification-what-is-the-difference-and-which-should-i-use Varying a legal document such as a trust deed because it contains incorrect or outdated details, requires a decision about what type of document to use to make the change. If a document contains a mistake, then it can be &lsquo;rectified&rsquo; using a Deed of Rectification: this seeks to correct the mistake as if it had never been made. Rectification is an equitable remedy which allows parties to correct an error which occurred due to common mistake, as if it had never been made. If a document has information that is out of date or no longer relevant, then it can be varied using a Deed of Variation, which involves amending it from the time a new document or deed of variation is executed. In contrast to rectification, variation relies on general principles of contract law which allow parties to agree to amend the terms of the document. This article explains how to determine whether rectification or variation depending on what is being fixed in a legal document.&nbsp; It also summarises important legal principles which underpin rectification and variation of documents. Fri, 04 Apr 2025 05:27:22 GMT Lucy MacLachlan, Maddocks Lawyers 838 Superannuation and succession planning: the importance of getting your house in order Superannuation-and-succession-planning-the-importance-of-getting-your-house-in-order All employed Australians working and residing in Australia are required to have superannuation and it is a predominant source of income upon retirement. Despite how central it is to an individual&rsquo;s lifestyle in their post-work years, it is not commonly understood what happens to your superannuation when you die and how it should be factored into succession planning. While a person&rsquo;s assets are generally dealt with under an executed will, superannuation is treated separately as it is not considered part of an estate. The manner to deal with superannuation depends on how it is treated (be it through an industry or retail super fund or self-managed super fund (SMSF)). This article provides a high-level overview of SMSFs, the documents necessary for effective succession planning, what generally happens to your superannuation when you die and the common mistakes to avoid with respect to your SMSF as part of succession planning. Wed, 19 Feb 2025 02:03:17 GMT Daniel Vaughan, Maddocks 772 ATO's 5-Year Rule Clarification: What You Need to Know About GST on Residential Property Sales What-you-need-to-know-about-GST-on-Residential-Property-sales In a decision of the Australian Administrative Tribunal, the Member in the Dals Property Trust Case clarified the application of the &#39;5-year rule&#39; used to determine whether residential premises are &#39;new residential premises&#39; and are therefore subject to GST. Ordinarily, the sale of &#39;new residential premises&#39; is subject to GST. However, the sale of new residential premises may not trigger GST if the premises have been leased to residential tenants for a continuous period of at least 5 years prior to the sale. In the Dals Property Trust Case, the Commissioner successfully argued that the 5-year rule was broken when the developer started to actively market the premises for sale. The ATO has now published its <a href="https://www.ato.gov.au/law/view/view.htm?docid=%22LIT%2FICD%2F2021%2F3014%2F00001%22" target="_blank">Decision Impact Statement</a> (DIS) which outlines its position on the interpretation of the 5-year rule, including when &#39;new residential premises&#39; are no longer exclusively used for residential rental purposes, when the 5-year period may commence and when GST mistakenly paid to the Commissioner by a taxpayer can be refunded. This article will summarise the key facts and findings of the Dals Property Trust Case, provide insights on the DIS and outline what this may mean for you. Tue, 31 Oct 2023 05:40:14 GMT Tristram Feder, Maddocks Lawyers 672 Power of Attorney Refresher - Staying on top of the documents Power-of-attorney-refresher-what-document-does-what There is a lot of focus on arrangements that you can make to ensure your wishes are dealt with after you have passed away, such as making a will. However, an equally consequential decision can be who you wish to appoint as your substituted decision-maker in respect of various matters, if you were to lose capacity.&nbsp; The various jurisdictions in Australia permit a person to appoint a substitute decision-maker in respect of financial, medical, personal/guardianship and end of life type decisions. This article provides an overview of the power of attorney documents available through Cleardocs which facilitate and formalise such appointments in the jurisdictions of New South Wales, Victoria, Queensland and Western Australia.&nbsp; Mon, 31 Jul 2023 05:20:06 GMT Laura Mckenzie 665 Contesting Wills - Late Partners Must Leave Adequate Provision For Surviving Spouses Late-partners-must-leave-adequate-provision-for-surviving-spouses In a recent Victorian Supreme Court decision, a de facto spouse successfully argued that the Will of her now-deceased partner failed to provide adequate provision for her own proper maintenance and support.&nbsp; In Walters v Perton, the Court considered a series of mandatory and discretionary matters set out in the Administration and Probate Act 1958 (Vic). &nbsp;These include (but are not limited to): <ul> <li>the relationship between the surviving spouse and deceased;</li> <li>the size of the estate;&nbsp;</li> <li>the spouse&rsquo;s earning capacity; and&nbsp;</li> <li>contributions they made to the estate.&nbsp;</li> </ul> In this case, the Court held that the deceased&rsquo;s intended provision for their surviving de facto partner under the Will - involving $210,000, and rent-free accommodation for six months - was not adequate, later awarding substantially greater provision in the amount of $1,540,560.&nbsp; This case serves as a reminder that Courts expect a deceased to provide for, or more meaningfully provide for, a surviving spouse or long term de facto partner under their will.&nbsp; Mon, 31 Jul 2023 05:19:02 GMT Maddocks Lawyers 664 NSW scraps First Home Buyer Choice program NSW-scraps-First-Home-Buyer-Choice-program The NSW Government has scrapped its flagship housing affordability policy, the First Home Buyer Choice program. The move notably contrasts with the treatment contemplated for commercial and industrial property in the Victorian State Budget: as one Government ends stamp duty in favour of an annual property tax, another Government goes the opposite way. For prospective first homebuyers in NSW, the trade-off is that the monetary thresholds to be exempt or receive a concession from stamp duty are substantially increasing. From 1 July 2023, the stamp duty exemption threshold for eligible first homebuyers will increase from $650,000 to $800,000, and the concessional rate will increase from $800,000 to $1 million. This article details the end of the short-lived Choice program and sets out the Government&rsquo;s new housing affordability measures. Wed, 28 Jun 2023 06:49:40 GMT Tristram Feder, Maddocks Lawyers 660 Which Will? When should you include a testamentary trust? when-should-you-include-a-testamentary-trust The seemingly rapid approach of a new financial year should serve as a timely reminder for people to review their personal succession planning, particularly their Wills. It is important to ensure that people have an up-to-date Will in place which reflects their wishes upon their passing. Not only will this ensure that their loved ones are appropriately provided for, but it will help to avoid any disputes arising after they pass away. Given the increasing complexities of people's financial affairs, effective succession planning should contemplate all assets, whether owned personally or via other entities such as super funds, companies or family trusts. However, the cornerstone of any succession plan remains ensuring that a person has a valid Will in place. This article focuses on succession planning and the 2 types of Will products offered through Cleardocs: <ul> <li>'ClearWill Online' - being a being simple Will with no testamentary trusts; and </li> <li>'ClearWill with Testamentary Trusts' - being a more complex Will which establishes testamentary trusts.</li> </ul> There can be various benefits of creating a Will with testamentary trusts, as outlined below. However, not everyone's circumstances justify a testamentary trust being included in their Will, in which case a simpler Will would be more suitable option. Wed, 24 Mar 2021 00:44:40 GMT Georgia Borg, Maddocks Lawyers 588 How do I protect my assets in a volatile COVID market? protect-assets-in-covid The current COVID-19 climate should serve as a reminder and an opportunity for people to consider their legal affairs, and how they can protect the value of their assets for future beneficiaries. The last 6 months have been characterised by instability in the share and property markets and economists are uncertain about what the future holds. Therefore, it may be a sensible time to begin to turn your mind to how you can protect the value of your assets in the volatile COVID market, and more broadly, ensure that your succession planning reflects your wishes. Fri, 06 Nov 2020 06:00:40 GMT Daniella Cox, Maddocks Lawyers 577 Your lock-down to-do list - Estate planning Your-lock-down-to-do-list-Estate-planning Estate planning can be something which many people continually put off until the right opportunity arises. However with many people facing the prospect of having more time on their hands, it may be the clearest opportunity for people to get to those items which have remained anchored to the bottom of their to do lists for years. Proper estate planning is essential, but it often languishes on the bottom on the day to day list of priorities – so the current lock-down restrictions present an opportunity to bump it up the list to its rightful place.This article discusses Power of Attorney, Wills and Death Benefit Agreement/Nomination documents and the importance of having them in place for every adult and their loved ones. Fri, 17 Apr 2020 05:31:17 GMT Elise Pascoe, Maddocks Lawyers 562