Life can be fragile and thinking about a future where you are not around to care for your minor children is incredibly difficult. However, failing to plan for that possibility can leave them and the people entrusted with their care vulnerable and unprepared. Ensuring that the relevant provisions are in place, such as legal guardianship, financial security, a well drafted Will, and clear instructions about their care will give you peace of mind so let’s explore these further.

A Will is essential

If you have young children, you need a Will. Neglecting to put a Will in place can result in undesirable outcomes. Creating a Will empowers you to shape the narrative. You can choose the guardian for your children in the event of your passing, ensuring that the person you trust most will care for them. You also decide who will be the executor of your Will. The role of executor is vital, especially if your children are young. Your executor is the person you trust to manage your children's inheritance until they reach the age specified in your will. You executor will also liaise with your children’s guardian to ensure that your children’s education, living expenses and all other incidentals are paid. It's important to chat with the people who you would like to appoint as your children’s guardian and executor to ensure that they are happy to undertake the role as no one likes surprises. It’s an opportunity for you to convey to them personally how you would like your children to be cared for, and how you would like your executor to invest your children’s inheritance so that their financial future is secure.

Spring is upon us which means a busy time of year for the property market.  Spring is a time that we usually see more properties going on the market and more properties being sold by Auction. So, what is the difference between buying at Auction versus buying by Private Sale arrangements.  From a legal perspective there are many differences, and you should be aware of all of those before entering the market and bidding at Auction. Here are some of the key differences:-

COOLING OFF PERIODS

Private Sale

Purchasing under a Private Sale arrangement provides a purchaser with the right to a 3 day cooling off period.  The Cooling off period is 3 business days and begins from the date that YOU (the purchaser) sign the Contract of Sale.  It’s important to note that the Cooling off period does not start from the date that the Vendor countersigns.  Accordingly, do not wait until the Vendor signs to complete any further due diligence you may wish to complete within the 3 day cooling off period.

Auction
Purchasing under Auction Conditions means that legally you waive the right to any Cooling off period.  Auction conditions apply to any publicly marketed Auction and the 3 business days prior to the marketed Auction date and 3 business days after the marketed Auction date.  By way of example, if you purchased a property on Wednesday, 11 September 2024 and the advertised Auction date is Saturday, 14 September 2024 you will waive your right to any cooling off period as this is within the 3 business day period of the marketed auction.

It is becoming increasingly common for people to own assets overseas in addition to their Australian assets. This has led to the emergence of how you deal with assets, owned in another international jurisdiction and whether you can make provision for these assets in your Australian Will. Let’s explore how best to make provision for these assets.

International Wills

Depending on which jurisdiction your international assets are held, you may be able to put in place an international Will which allows you to make provision for both your Australian assets and your assets held in an overseas jurisdiction. Australia together with Bosnia-Herzegovina, Belgium, Canada, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal, Slovenia and the following USA states – Alaska, California, Colorado, Connecticut, Illinois, Minnesota, Montana, New Hampshire, New Mexico, North Dakota, Oregon, Virginia and Washington DC are signatories to the UNIDROIT Convention. Essentially, this means that if you hold assets in any of these countries you may put in place an international Will.

The International Will Process

An international Will is different to an Australian Will and there are processes that need to be adhered to in order for it to be a valid Will. Most importantly, it needs to executed in a manner that complies with both the UNIDROIT Convention and the jurisdiction in which the Will is made.  It is important that you seek the appropriate advice from an estate planning lawyer to assist you in putting an international Will in place, that meets all relevant requirements.

There are so many options around what type of Retirement Village you may wish to move into - they vary in size, price and options in regard to the price and how it can be paid.  Here are some helpful tips for your decision around the Retirement Village for you.

Get Financial Advice

It is extremely important to work with your financial advisor to seek the appropriate advice around how moving into a Retirement Village will financially affect you and potentially affect your Estate in the future. If you do not have a financial advisor, ask family and friends or speak with your legal advisor for a referral.

Obtain Legal Advice

Retirement Village Contracts and Agreements are not all the same and require a careful, considered review.  There are a number of different arrangements in which a Retirement Village can be purchased:

·  Purchase as you would a regular property and be the registered proprietor of the unit following settlement

·  Purchase under a lease arrangement whereby you will pay an “ingoing contribution” to allow you to reside at the Retirement Village

 Once the review is complete you will likely have further questions and the documents may require further clarification and discussion.

There is a misconception that if you are young, you do not need a Will. Often you don’t think you have a lot, but if you look at your car, that bit of cash in the bank and all your other loose ends, you may have more than you think. Life is full of curveballs, and unforeseen circumstances can arise at any time. Although it’s important to live in the moment, it is also important to prepare for the unexpected, at any age.

You go travelling

Almost 1000 Australians die each year whilst travelling overseas, usually as a result of an accident or illness. This reason alone is why you should put your Will and Power of Attorney documents in place prior to heading off to explore the world. Add it to your list of things to do when preparing for your holiday and it will all be done in no time at all, leaving you with peace of mind as your plane leaves the tarmac, as you begin your overseas adventure.

You have a social media account

Social media is a big part of our lives, with many young people active on one or more social media platforms. It’s important to leave instructions in your Will regarding who you would like to manage your accounts upon your death, together with what you would like to happen to your photos and documents stored on these accounts. You may wish for some of your accounts to be memorialised or closed upon your death and need to provide clear instructions in respect to this.

Spring is usually a busy time in Melbourne for those thinking of selling or buying and this year seems like it will be no different.  However we believe this year may be particularly busy with the sale of investment properties. There are a number of reasons that we are seeing an influx in the sale of investment properties including, but not limited to, the cost of living pressures, increase in land tax and the introduction of the Vacant Property Tax.  If you are thinking of selling your investment property this Spring here are some things you should consider before putting your property on the market:-

Land Tax

New laws introduced as of 1 January 2024 prevents the adjustment of land tax between the vendor and purchaser on Contracts for the sale of land, except for contracts in excess of ten million dollars. This means that when selling your investment property subject to land tax you will no longer have the right to have this apportioned between you and the purchaser. You will be required to pay all outstanding land tax associated with the investment property being sold at settlement. This is particularly important if you are negotiating a sale before or after the next assessment year especially if you wish to avoid paying a further year land tax. It may be worthwhile negotiating an earlier settlement date prior to Christmas 2024 to save yourself additional land tax for the 2025 assessment year.  Land Tax is re-assessed on 1 January of each year.

With the commencement of the new year, it has brought with it major Victorian property tax changes which came into effect from 1st January 2024. For those of you thinking of selling or purchasing a property, it is helpful to be informed about these changes, as they can be hidden costs that you may be unaware of.

Land Tax Changes

The new law prevents the adjustment of land tax between the vendor and purchaser in Contracts for the sale of land, except in contracts in excess of ten million dollars. This new law applies to all contracts entered into and signed subsequent to 1st January 2024.This means that when selling a property, the Vendor will be responsible for all land tax payable on a property. Contracts of Sale that were entered into and signed prior to 1st January 2024 will still have the land tax adjusted proportionately at settlement and the new legislative changes do not apply to these Contracts.

This means that the purchaser will pay the proportion of the land tax assessment for the period in which they will own the property in the specified calendar year, whilst the vendor will pay the proportion for the period in which they owned the property in the specified calendar year.

Life is busy and as we go through each day multitasking in order to achieve all that is packed into our daily schedule, we often don’t take the time to reflect what our legacy be. It’s too big to ponder… it’s a question for another day. As an Estate Planning and Probate lawyer, Legacy is something that I am immersed in often.

I am in the privileged position that my job allows me to work with people in putting a legacy in place for their loved ones by assisting them with putting in place their Will and Estate Planning. The other side of the coin is that I also assist loved ones left behind when they are gone. One thing I have discovered is that those left behind love legacies that their departed loved one has left behind, no matter how small or insignificant they may be.

It’s often not until someone has gone that we realise that there is so much we didn’t know about them. We all have so much within ourselves that we can leave behind for future generations to cherish, we all have stories to share and often we may be the sole or one of the few custodians of those stories. Here are some lovely ways that you can capture cherished memories and information for loved ones and leave a legacy.

One thing many people struggle with when putting a Will in place is determining who to appoint as the guardian of their minor children, if something happens to them. Often people put the decision in the too hard basket, but with a little thought and guidance there are ways to navigate this conundrum so that you comfortably appoint someone who you feel is the best fit for the very important role of taking care of your children.

Someone Your Children Know

It’s important to appoint someone that your children know well and have a fantastic relationship with. Placing them in an environment with someone they have a strong relationship with will provide them with comfort and ongoing security. You only need to think of the anguish they will feel, no longer having you in their life – their sense of loss and despair. You want to make things gentle and supportive for them as they navigate their new world without you. If your children are loving school, have strong and closely connected friendship groups and a wonderful sense of community around them, would sending them to the other side of the country where your sister resides so she can care for them and raise them as their guardian really be the right thing to do? Or would they be better of remaining in the community where they feel connected and supported so they can continue to thrive?

You don’t have to choose a family member

Often people feel inclined to appoint a family member to be their children’s guardian. You shouldn’t be inclined to feel this way. It’s an important role and you should consider the most appropriate person to undertake this role, and this may not necessarily be a family member. I have clients who elect not to appoint siblings as their children’s guardian because their values are not aligned and they have chosen a guardian whose values aligned with their own.

Many people come unstuck thinking that you can make provision for all of your assets in a Will – you can’t. A Will only allows you to make provision for assets that you own in your own individual name.

Superannuation

Superannuation is an asset that catches many people unaware, as they think they can make provision for this asset in their Will, and we often see Will kits that make provision for super. The thing is, superannuation is a trust asset that is held on trust by the Trustee of your superannuation fund until you reach the age that you can access your superannuation or you die. Given that for many of you, your superannuation will be one of your biggest assets, you need to ensure you make adequate provision for where this ends up. You can do this by putting in place a Binding Death Nomination or a Non-Lapsing Binding Death Nomination. These forms can be downloaded from your superannuation fund’s website and allow you to stipulate where you would like your superannuation to be paid if something happened to you. By providing the Trustee of your superannuation fund with a direction of where you would like your superannuation paid, you will have peace of mind that your superannuation will end up with those you would like to receive it. It is also important to consider the tax implications of paying superannuation to dependents and non-dependents when putting your Binding Death Nomination or Non-Lapsing Binding Death Nomination in place and your superannuation should be looked at holistically with your Will, when considering who you would like to receive your assets upon your death.