3rd Mar 2018

How do I ensure my mum’s Will fulfills her wishes?

FONT SIZE: A+ A-
Do I help my mum rewrite her Will?
Rod Cunich

Connie is the executor of her mother’s Will and has asked YourLifeChoices’ estate planning expert Rod Cunich for guidance. 

Connie: After my dad passed away few years ago, my elderly mum inherited a principal residence, two investment properties and shares (all post-September 1985). 

She plans to share the properties equally with her five children after her death. But two of my siblings are not Australian tax residents. How would this affect the inheritance process? 

She also plans to give the shares and remaining cash to her seven grandchildren, a charity organisation and her local church. However, two grandchildren are also non-Australian residents.  



I am the executor of her Will. Is there anything I can do now to make the process smoother or does she need to change her Will now? 

Answer: Assets left to Australian residents pass across to the beneficiaries without payment of any Capital Gains Tax. The beneficiaries, however, inherit the accrued CGT liability and CGT has to be paid upon sale of the asset. 

Where property (land, shares or any other property that attracts CGT) is passed to a non-resident, however, any accrued CGT liability has to be paid, even if the property isn’t sold. 

If property is sold rather than distributed and CGT paid on sale, any cash that is distributed will be ‘post’ CGT cash.


Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

Rod Cunich is a lawyer with over 30 years of experience who specialises in estate planning. If you have a question for Rod, simply email it to newsletters@yourlifechoices.com.au


Related articles:





COMMENTS

To make a comment, please register or login
OnlyGenuineRainey
7th Mar 2018
8:48am
DO NOT do anything that could be seen to influence your mother in the making of her will if there is even the smallest risk of anyone contesting it. The laws in Australia are diabolical in relation to wills - an utter disgrace and a gross insult to everyone who claims the right to decide how their estate should be distributed.

A wide range of people are given entitlement to claim part of what a deceased leaves, regardless of the content of the will, and are encouraged to engage no win/no pay lawyers, with no risk, to try to have the will overturned. When they do, the executor endures months of hell and the estate is heavily eroded with massive legal bills, unless the executor just rolls over and pays the claimant what they demand - regardless of any moral or ethical rights. The day a claim is made, the executor and rightful beneficiaries have lost! There is NO WAY to win. Even if the case goes to court and the claim is found to be completely baseless, unfair, and dishonest in the extreme, the estate still suffers heavy legal costs. In most cases, even the most unfair claim is resolved in the claimant's favour, perhaps because it's impossible for uninvolved third parties to understand the dynamics of relationships or the deceased's history and reasoning, and it's often far too costly to present evidence to refute wrongful claims.

If an executor or beneficiary can be shown to have had any influence over the content of the will, it's easy for the most unethical and dishonest claimant to have it overturned on the grounds of ''undue influence'' even if the influence was definitely NOT ''undue''.

It's imperative that your mother get fully independent advice and that nobody who may benefit under the will be involved in any way in either drafting or amending it.
tj
7th Mar 2018
12:57pm
May i ask where you got your information from and also is it up to date? Would be very interested if you are accurate in what you posted as i know someone close to me who is in a similar dilemma as what you have described and has been told the law has been changed recently pertaining to the costs of contesting wills .Please any body reading my post remember i am not suggesting that only gen. is wrong but i have been informed that the costs of contesting wills is borne by the claimant and does not affect the estate value.Also lawyers cannot represent anyone on a ''no win no fee basis'' for contesting wills
Anonymous
7th Mar 2018
1:52pm
Hmm, That's interesting, I'm not saying you are incorrect but I was told different. I was told it's very hard to contest a will, that was 17 years ago though. I was told your will is your last wishes, and that every thing is done to see those wishes fulfilled. Anyone contesting a will has to have very good ever dance to get those wishes changed. Things may have changed .
Knows-a-lot
7th Mar 2018
4:05pm
"The laws in Australia are diabolical in relation to wills - an utter disgrace and a gross insult to everyone who claims the right to decide how their estate should be distributed".

NO! A parent's offspring deserve to be treated equally, unless there has been an estrangement lasting many decades.
Keepitsimple John
7th Mar 2018
11:38am
Whist it's great - and thanks to Rod Cunich for offering his services - his reply is totally baffling and I would expect that most of we elderly people reading it are no better informed on the answer/solution for Connie. It certainly left me confused as her only question was: "is there anything I can do to make the process smoother?" Often professionals (accountants/lawyers/doctors etc) forget to communicate to us in 'plain english'. Just recently my doctor spoke to me about ventricular fibulation. PLAIN ENGLISH!!! I said back to him.Oohh! A rhythm disturbance of your heart, he said. Aaaah!!!
Charlie
7th Mar 2018
1:02pm
There's a good retirement vocation. I will help people rewrite their wills?
KSS
7th Mar 2018
1:16pm
I thought the beneficiary of a will could/should not 'help' with the writing or amending of it since it could be alleged that they had an unfair influence on the outcome!
Anonymous
7th Mar 2018
2:04pm
Another thing I'm not sure of is , for instance my house is in my name only, I had it well payed for before I married. I will leave it to my wife if I die first, but will the deeds have to be changed into her name like you do when changing car rego and what would it cost. If so I don't think I can afford to die.
KSS
7th Mar 2018
6:17pm
If she is your beneficiary she will inherit the house and should transfer it to her name so she can dispose of it as she sees fit. I don't know what that would cost.


Join YOURLifeChoices, it’s free

  • Receive our daily enewsletter
  • Enter competitions
  • Comment on articles