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"Mr. James Ford was really helpful and prompt. I have forwarded him the requested information to update my Will. I will be happy to recommend James to my friends and acquaintances in future." [Will - Qld]
"Very prompt and informative information given." [Will Dispute - Qld]
"James was able to assist with my parents’ Will dispute. Even though he is in Brisbane and I am on the Gold Coast, it was easy to communicate and put our case together. James always responds quickly, is very efficient and continues to keep me well informed of any progress. I have no hesitation in recommending James." [Will dispute - Qld]
Don’t make the mistake of thinking that old-style Wills keep things simple – they can easily lead to complexity and disputes as they aren’t drafted to properly protect beneficiary entitlements and avoid unnecessary taxes.
Our Smarter Will incl. a Testamentary Trust is a cutting-edge document.
Meticulously designed in consultation with leading Australian estate planning experts to provide maximum flexibility and asset protection + tax minimisation.
1️⃣ Discretionary Testamentary Trusts, rights of occupancy and other trust structures that are aimed at giving your executors every possible opportunity to minimise income tax, capital gains tax (CGT) and other tax leakage;
2️⃣ Beneficiary support trusts/special disability trusts that are designed to preserve Centrelink welfare entitlements;
3️⃣ Flexible child guardianship arrangements to ensure as far as possible that your child guardianship wishes are implemented;
4️⃣ Pass control of Family/Discretionary Trusts and SMSF's;
5️⃣ Flexible mechanics for allocating and distributing your estate assets; and
6️⃣ Option to elect to make it mandatory for all beneficiaries to take their gifts via a Discretionary Testamentary Trust (DTT).
Cleverly designed to minimise the potential for:
➲ Family provision claims; and/or
➲ Disputes among the beneficiaries.
Here’s an example of the massive tax savings that can come from having a Testamentary Discretionary Trust …
On income of $72K earned from estate assets (eg, rent from an investment property, dividends from shares, etc.) to a surviving spouse who’s total taxable income is $180K, but who has 4 minor children.
If the distribution is paid directly to the spouse under a normal will, tax on the distribution will be $32,400 – HOWEVER, if the distribution is split equally between the children, no tax will be payable!
Tax saved in this example: $32,400 … year after year after year.
Your Smarter Will has been meticulously designed in consultation with leading Australian estate planning experts to allow you to:
1️⃣ Reduce the need to update your Will for minor changes; and
2️⃣ Greatly assist your Executor in administering your Estate.
Your Smarter Will refers to the following separate lists/directions which importantly DO NOT form part of your Will!
➲ List of Allocation of Personal Chattels;
➲ Digital Assets (incl. current passwords, and authentication protocols); and
This means that you can update any of the above, at any time, by simply dating + personally signing a revised list/direction (no witnesses required).
All Testamentary Trust Deeds contain broad definitions of eligible beneficiaries in order to provide as much flexibility as possible for Trust Distributions.
Long-lost siblings, uncles, aunts, nephews or even kids born or who may be residing offshore as part of their professional or lifestyle pursuits could be or become foreign persons + trigger the need for compliance with recent NSW legislation.
Failure to mitigate this risk by ensuring the Trust Deed irrevocably prevents trust distributions to foreign persons creates a situation where:
➲ If the Testamentary Trust acquires or leases NSW Residential Land (freehold or leasehold, vacant or with a dwelling incl. strata) it could potentially be liable to pay the 8% NSW Purchaser Duty + 2% Land Tax Surcharge.
Your Testamentary Trust can be setup to either:
1️⃣ Revocably prevent any trust distributions to any foreign person; This option retains flexibility for the Trust to reverse its position at some point in the future to allow distributions to foreign persons; or
2️⃣ Irrevocably prevent any trust distributions to any foreign person. This option is highly recommended if your Trust plans on purchasing or leasing residential property in NSW.
Please reach our to our legal team if you need clarification or assistance with this complex decision.
We strongly recommend you first consult with our free chatbot ⩴ Captain [Cicero]℠ to help you quickly + objectively assess whether or not your Will is likely to be complex requiring you to consider legal advice.
If you get the green light from ⩴ Captain [Cicero]℠ to proceed to do-it-yourself using our [Self-Service] option and are still unsure about anything at all, have questions, need peace of mind:
➲ We recommend you contact us or select our [Lawyer Assisted] option.
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Broadly speaking, an eligible person may include anyone to whom the testator has a responsibility, potentially including a current or former spouse or de facto partner, children, grandchildren, other dependants and persons living in the testator's household.
When the testator dies, any "eligible person"may make an application to the court for a family provision order if they believe that there has been inadequate provision for them under the Will.
If an order is made, interests under the Will may be adjusted and the applicant may be able to obtain part of the estate contrary to the express provision of the Will.
There is no guarantee that any particular reasons for excluding an eligible person will be acceptable.
Whilst the likelihood of a successful family provision orders may be reduced by expressly excluding people who may be eligible persons in the Will and providing clear reasons why they have been excluded.
A Court will take into account all of the facts and circumstances.
The following are some examples of reasons that may potentially be considered valid:
🧩 Sufficient provision was made for the excluded person during the testator's lifetime such that further gifts would be unfair to the included beneficiaries;
🧩 The testator and the excluded person have had no contact for a long time and no relationship of love/affection exists between them;
🧩 The testator has not had any responsibility for the welfare of the excluded person for many years;
🧩 The financial circumstances of the excluded person are much better than those of the included beneficiaries and the excluded person is being excluded in order to try to achieve a balance of financial welfare amongst all potentially interested parties; and/or
🧩 The excluded person has received, or is likely to receive, significant assets from the estate of another person (eg, a former spouse of the testator, a former spouse of the testator's spouse, etc).
Please note: The Will becomes a public document pursuant to the Court Probate process, consequently any reasons articulated for excluding an eligible person will ultimately be made discoverable by the public.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
The following assets will not generally form part of your estate and are therefore not covered by your Will
That is, assets that are:
❌ Held in superannuation accounts, including any self-managed superannuation fund, unless/until those superannuation assets are transferred into your estate upon your passing pursuant to appropriate superannuation death benefit nominations.
Please refer here for binding superannuation death benefit nominations.
❌ Held in any separate family / discretionary trust;
❌ Owned by a company or held in any unit trust; and/or
❌ Held as “joint tenants” with another person (including bank accounts where you are only able to operate the account jointly with another person);
Any assets held as joint tenants can only be dealt with as part of the estate if the joint tenancy is first severed into a tenancy-in-common.
Please note: Our Wills generally do not deal with any assets that are held as joint tenants – however, our Wills give the executor/trustee the power to adjust the proportionate distribution of the estate assets, taking into account both the proportionate distribution of such non-estate assets and the overall tax implications.
See our FAQ: What is the General Power of Adjustment in a Will?
Our Wills are drafted so that they only apply to your assets situated in Australia.
In relation to any assets held in any overseas jurisdictions, it may be necessary to create a separate Will in the relevant overseas jurisdiction, or if the foreign assets are in a country covered by the relevant treaty, an International Will.
In NSW, certain non-estate assets can be considered by a Court in making a Family Provision Order.
For more information please read our FAQ: NSW Family Provision Claims and the concept of the Notional Estate.
If you are a co-owner of any business, consideration should be given to whether your estate will retain or dispose of your share in the business, and vice-versa for the co-owners of the business.
It is highly recommended to put in place a buy/sell agreement to allow for the business to successfully continue operations in the event of the passing or incapacity of a co-owner.
Under a buy/sell agreement:
🧩 Insurance policies are taken out to cover the death or disablement of each co-owner; and
🧩 If a co-owner dies or becomes incapacitated, he/she is deemed to offer his/her stake for sale to the remaining co-owners and the proceeds of the relevant life insurance policy can be used to fund the purchase of that stake by the remaining co-owners.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
Our Wills include a general power of adjustment that enables the executor to make adjustments to the allocations and entitlements under the Will.
Adjustments are allowed where the executor reasonably believes that making the adjustments will better reflect your intentions as to the proportionate distribution of both the estate assets and non-estate assets on an after-tax basis.
See our FAQ: What assets generally do not form part of the estate created by my Will? in relation to non-estate assets.
Please note: A general power of adjustment will not give the executor/trustee the power to add new beneficiaries who aren't already included in the Will.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
The executors/trustees are responsible for:
✅ Applying for Grant of Probate (a Court Order allowing the Will to be administered);
✅ Notifying the beneficiaries of their entitlements;
✅ Gathering and distributing the assets in accordance with the Will;
✅ Ensuring that the testator's debts, taxes and funeral expenses are paid;
✅ Managing any assets that are held on trust for beneficiaries pursuant to the Will until those trusts vest; and
✅ Preparing the related accounts and tax returns.
An executor/trustee may be:
⚖️ An individual over 18 years of age;
⚖️ An appropriately licensed trustee company; or
⚖️ The Public Trustee.
It is not uncommon for a testator to appoint a trusted professional advisor to the role:
⚖️ A Solicitor, Accountant and/or Financial Planner.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
An Ethical Will (Hebrew: zava'ah) is a document that passes ethical values from one generation to the next.
Rabbis and Jewish laypeople have continued to write Ethical Wills during the nineteenth and twentieth centuries. (Riemer)
In recent years, the practice has been more widely used by the general public.
In BusinessWeek magazine and in an American Bar Association electronic newsletter it is described as an aid to Estate Planning; (Murphy; Friedman) in health care and hospice (Baines; Freed) and as a spiritual healing tool. (Weil; Freed).
Ethical Wills (also known as a Legacy Letter) are written by both men and women of every age, ethnicity, faith tradition, economic circumstance & educational level.
📘 The Measure of Our Success: A Letter to My Children and Yours by Marion Wright Edelman,
📘 Everything I Know: Basic Life Rules from a Jewish Mother, and
📘 President Barack Obama's Legacy Letter to his daughters of January 18, 2009.
The concept of the ancient traditional Ethical Will was to "transmit love, learning & ethical instructions to future generations".
The Ethical Will is a tool for spiritual healing in religious communities and in the care of seniors, the ailing and the dying.[2]
Estate and financial professionals use the Ethical Will to help clients articulate values to inform charitable and personal financial decisions + preparation of their last will and testament.
The Ethical Will is not a legal document.
Modern heirs may resist being "controlled from the grave" & more readily accept explicitly spiritual blessings from elders.
It could be a letter—ranging from half a page to a bound book—or a video recording.
There are no rules governing what goes into an Ethical Will / Legacy Letter, or when the contents should be shared with the heirs, but the idea behind it is simple: Convey values, not valuables.
Deeply rooted in western religions, the practice of writing Ethical Wills has re-emerged as a way of leaving behind something more meaningful than material goods.
Susan Turnbull, founder and principal of Personal Legacy Advisors, a firm that advocates non-binding personal-legacy documents as a component of estate and philanthropic planning says:
"What struck me was that it was the missing piece of estate planning …
A Will is written in formal legalese that is very limited in scope.
It has no personality, and there is no life or warmth in it.
Love and affection and gratitude may be implied by the document, but are never stated.
An Ethical Will takes a 30,000-foot view of your life, and tries to capture the essence of what has been important to you, and the lasting messages you want to leave.
The Ethical Will is written to help other people, for the benefit of the heirs, but the process the author goes through to create it is as valuable as the document itself.
The author has the opportunity to pause and reflect on her/his life in ways she/he might otherwise never do."
Linda Beerman, Chief Fiduciary & Risk Officer at Atlantic Trust, a private wealth-management firm, and manager of its wealth strategies group, says:
"Ethical Wills are an important part of helping prepare the next generation to become "good stewards" of the family wealth.
Typically these are private expressions of love, of what the owner of the wealth wants it to mean for the next generations.
It's an effort to pass down not just the money, but all of the drivers [of the] creator of the wealth, and what he or she wishes the legacy to be for the family.
The Ethical Will is a great way to tie it all together.
It answers the question: What is this all for?
With nearly every family there is a deeply emotional personal story behind the accumulation of the wealth."
🧩 Family history + Cultural & Spiritual Values;
🧩 Blessings & Expressions of Love for, Pride in, Hopes & Dreams for Children and Grandchildren;
🧩 Life-Lessons + Wisdom of Life Experience;
🧩 Requests for Forgiveness for Regretted Actions;
🧩 The Rationale for Philanthropic + Personal Financial Decisions;
🧩 Stories about Meaningful Objects for Heirs to Receive;
🧩 Clarification about and Personalisation of Advance Health Directives; and
🧩 Requests for Ways to be Remembered after Death.
Susan Turnbull, offers the following tips:
If you were not here tomorrow, what is the most important thing you would not want left unsaid?
It might be a simple as saying, "thank you" in your own words.
Write it down – you've begun.
You are not trying to write for the Pulitzer Prize.
What you create is a gift of yourself, made for those you love, not for an imaginary panel passing judgment on your life or your writing.
What do I want to make sure my loved ones know and have in writing?
What messages, feelings and information do I want to endure beyond my life?
Start small and add to it over time if you wish.
It's natural to expect that what seems most important to share might grow and change as you and your audience age.
The reach of your words is unknowable.
Keep it in an accessible file, so you can add to it effortlessly.
Keep it with your legal papers or refer to where it can be found.
Make sure your words find their intended audience.
Note: Using our Digital Safe Custody Vault will ensure you accomplish these objectives.
Even as you know you may augment or change your document over time, think of the rewards of creating a monologue that will promote dialogue.
Credits:
This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
Important Notice:
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.
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