How can Sisha protect her daughter’s inheritance?

Sisha is worried that new laws may mean she can’t leave her share of the house to her daughter. She turns to Rod Cunich for help.

How can Sisha protect her daughter’s inheritance?

Sisha fears that new laws may mean that she will not be able to assign her shared ownership of the house to her daughter in her will. Sisha asks estate planning lawyer Rod Cunich for guidance.

 

Q. Sisha
I've just found out that the new laws in South Australia state that when I die, my half ownership of our house goes to my partner, and I won’t be able to leave my share in my will to my only adult child, who isn't my partner’s biological child. I have put everything I had into buying my house knowing that one day, when I go, she will have a roof over her head. I have nothing else. Is there a way to protect her inheritance?

A. Sisha, the short answer is yes. See a local specialist estate planning lawyer (your local Law Society/Institute can recommend specialists) who can assist with appropriate steps.

You can change the way you own your jointly owned property so that your share is controlled by your will. You can then leave your share to your child. If you wish your partner to live in the house for a period after you pass away, you can create a right for him in your will to occupy the property for a specific period of time (even life), and at the end of that time your partner either has to pay your child for her half of the property, or the property is sold and the proceeds of sale divided.

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    COMMENTS

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    ozirules
    10th Apr 2019
    10:47am
    mmm have 'your share controlled by your will' is not very reassuring when you see some of the comments posted in previous articles on this subject. I have absolutely no faith in our legal system upholding any wishes that I put in my will. Best you find a way of distributing your assets before you pop your clogs.
    Rosret
    10th Apr 2019
    11:13am
    If it is controlled by the Will why is it an issue?
    I would certainly want my estate to go to my children and not an acquired partner in later years and his/her children depending .
    I always thought the law did give inheritance to defacto partners if there was no Will.
    miker
    10th Apr 2019
    10:56am
    why on earth would any government interfere in this area? Hands off or out you go
    Arvo
    10th Apr 2019
    11:15am
    The government ''interferes" as a Legislator of Law not as as a nosy intruder.
    MICK
    10th Apr 2019
    3:44pm
    Governments and do gooder bureaucrats and judges do try and interfere. Some of their decisions are beyond belief as they play their game of due process rather than the intentions of those writing wills and their benefactors.
    miker
    10th Apr 2019
    10:56am
    why on earth would any government interfere in this area? Hands off or out you go
    Old Man
    10th Apr 2019
    11:50am
    The matter of ownership of real estate and the ability to assign a share depends wholly on the type of ownership described in the title deed. If joint tenants are described, ownership passes to the remaining partner in the event of the death of one of the parties. Tenants in common allows title to be passed on under a will in the event of death and the inheritor becomes the new tenant in common with the same percentage of ownership originally held.
    OlderandWiser
    10th Apr 2019
    1:45pm
    Very good point OM. Luckily my house is solely in my name & always will be. Issue will be will can still be contested unfortunately but not by any of my children.
    Adrianus
    10th Apr 2019
    2:09pm
    Correct Old Man. I would further add that Sisha get a determination from the office of State's revenue on their view of Stamp Duty before the final decision. Get her Lawyer to ask them?
    Adrianus
    10th Apr 2019
    2:09pm
    Correct Old Man. I would further add that Sisha get a determination from the office of State's revenue on their view of Stamp Duty before the final decision. Get her Lawyer to ask them?
    MICK
    10th Apr 2019
    3:54pm
    Good post OM. Of course as with all things the devil is in the detail. The Family Court has wide ranging powers and I understand that it can render a Will useless in some cases and reallocate the estate as it sees fit. Apparently NSW is the worst state in this regard.

    Recent meetings with several planning companies have opened my eyes to this dog's breakfast and I am going to need to do this with a whole pile of documents to get what I consider fair. My children will likely disagree with me but they'll be unable to get at parts of the estate I am allocating elsewhere.....as it should be methinks.

    Its the sort of world we live in where one has to go to this sort of extreme to get one's wishes carried out.
    MICK
    10th Apr 2019
    3:41pm
    Wealthy Australians use estate planning to keep the family wealth in the family and shut out (bad) partners.
    I'm going through the process at the moment and still joining all of the dots. It s a complicated area you need specialists to work for you as those who believe they are entitled to the estate are using the courts to push their way in. There are ways which are all but foolproof and which require substantial sums of money to even maybe pry open.
    At the end of the day we all need to be able to make a SENSIBLE end of life decision and not be told by interlopers and crooks that they are entitled to what rightly belongs to your descendants.
    Its a minefield. Get a good planning company which has been in the game for a long time. That way your children and theirs have a fighting chance of beating the idiot bureaucrats and judges who seem to think your clear and sensible Will is going to be bypassed.
    Good luck.
    Cheezil61
    10th Apr 2019
    5:38pm
    Pretty sure no matter how you word your will it can be contested anyway. Had this come up re nominations binding in my super's life insurance policy when i wanted to put it in my will that my kids get my super & the insurance that comes with it-can do it but no guarentees as defacto could contest it either way!)
    If it is that important to you, give the partner the boot & live alone (as i do now for my remaining days on earth!)
    MICK
    10th Apr 2019
    8:42pm
    Or see a proper planner with long experience to set up your estate BEFORE you croak it. This is what they do!
    Mamashaz
    10th Apr 2019
    10:28pm
    In my planning for retirement efforts I have become aware that the laws are different in every state/territory. If you move then you need to look at the laws of your current residency and change your will accordingly. What a mess... I guess the lawyers all need the money they make on this, for the next generation of lawyers... Oh well I intend spending it all anyway. My children know that a cardboard box and a match would be sufficient to bury me as far as I'm concerned.

    11th Apr 2019
    7:03am
    You wont have to worry about it if shorten and his union thugs get elected because bill is going to take a large portion of your inheritance along with your franking credits and some of your Super
    OlderandWiser
    11th Apr 2019
    10:50am
    Rubbish, franking credit yes as it's double dipping & stop this rort of negative gearing as well
    ozirules
    11th Apr 2019
    10:56am
    I get franking credits SFR and fail to see how it can be seen as double dipping. I earn less than the income tax threshold and get back the tax the company erroneously paid on my behalf. I would be happy to have the company give me the dividend without franking and let my accountant work out any tax which is due when he completes my annual tax return.
    Alexii
    15th Apr 2019
    10:45am
    Same here, ozirules. It's appalling that the ALP is going to grossly discriminate against those of us who have less than a taxable income and have a few shares that we get franking credits from. My wife and I have a low income and we will be made a bit poorer if the ALP gets in to government - a shame as we'd prefer them to the coalition. I really can't understand why they want to make it worse for low income people, the ones they should actually be caring about. Interestingly, I don't get any replies to my emails that I have sent to various Labor Party people. In these emails I always point out the discriminatory nature and unfairness of their proposal re franking credits and ask them to explain why they are doing it. I think they must have no logical explanation hence no reply.
    Nancy
    12th Apr 2019
    2:45pm
    Every day I cry, my heart breaks, I have a caring and loving daughter who gives her all to me, she has lived with me for 10 years with her son , who is just as caring. As a single mum, She will never own a home, I also have 3 other children who have their own homes , we were all very close, my husband wanted our daughter to inherit our estate, and I did also. We arranged our wills as such. Two of The other children turned on us, accusing their sister of stealing shares, stealing $300.000, forging wills to favour herself, manipulating my husband and I. All of which are so untrue. one daughter came around with her husband and demanded we write our wills equally as it was Her inheritance, she knew her Father was not home and I Was by myself. My husband has since passed away. Every day and night I cry, because I know that they will put her, my daughter, their sister through hell, when I die. I am in remission with cancer and she has been with me all through it, as she was during my husbands illness. One daughter and one son have never acknowledge my illness or offered any help, the other son has. I may be forced to change my will, and I feel like I am going against my husbands wishes, and this hurts . My husband died with Alzheimer's , but he knew what he wanted when he wrote his will. All I have is a house, and a small super monthly payment. And yet I may have to change my will to accommodate other peoples wishes . I am 80, not senile,Worked hard, WHY SHOULD MY WILL BE CHALLENGED, IF CHALLENGERS ARE MADE THE PERSON CHALLENGING THE WILL SHOULD HAVE TO PAY THE FEE, NOT COME OUT OF THE ESTATE. this is what they play on, the estate paying.
    ozirules
    12th Apr 2019
    3:37pm
    I feel for you Nancy, no one should be able to contravene your wishes as stated in your will.Is it possible to make your daughter joint owner of your house while you are still alive so she becomes sole owner upon your death. None of us should be forced to use devious ways to ensure our last wishes are met but the way our legal system works sucks. I agree wholeheartedly with your last sentence. I hope you can find resolution, good luck Nancy.
    BrianS
    15th Apr 2019
    1:18pm
    Hi Nancy,
    You may wish to consider talking to an Advocate or even "Elder Abuse" about the situation.

    You should not have to put up with being harangued into changing your will & definitely not cornered when you do not have any support of your partner.

    Just talking to either of the two options above may be useful both for your piece of mind & to see what other options are available for you to ensure that YOUR wishes are respected. Those options are likely to know what is applicable in your state & where you may be able to get further assistance.
    jayzaa
    14th Apr 2019
    10:57am
    Happened to me. Mum's controlling boyfriend made her buy her unit as tenants in common. He got the lot and stole all her good furniture. When she was dying in hospital, he totally cracked it when I put a DNR on her. He wanted to cart her off to the solicitor to change her will so he got everything. At least I got her cash. Hope the asshole rots in hell.
    Lyn
    16th Apr 2019
    2:11pm
    Best thing to do is to have the Title to your property as "Tenants in Common" 50% each. Not "Joint tenants" . Then your half will go to your daughter as stated in your Will.