General Estate Planning issues (Wills, PoA, AHDs)

[MARTINE]

Why do people use the Public Trustee? Do they create wills for free so people think they are saving legal fees? And then of course, how predictable, likely encouraged? to nominate the public trustee as executor. Maybe they think it would be a burden for the kids?

They would be the last I would use for this purpose — glacial pace — takes months to get basic decision — handing over your assets to the state gov to administer. No thanks!

 

[love_the_life]

They would be the last I would use for this purpose — glacial pace — takes months to get basic decision — handing over your assets to the state gov to administer. No thanks!

My late FIL used State Trustee in Vic - he had a hate on solicitors for some reason and decided to use the PT. In the will he left the house to his wife as a life Interest but then it was to go to the children. She outlived him by over 20 years and spent the last 3 yrs in a nursing home, with the house empty as she had dementia and wouldn't sign her interest away. Eventually her children did convince her. The first thing MrLtL and sister did was to transfer home into their names and get rid of PT.

 

[Brissy1]

An employee in the Public Trustee SA gave my Aunt good, honest, advice... strongly suggested she use a solicitor as it would be much much cheaper.

 

[cove]

Yes I know our WA Public Trustee charges commissions that can be pretty large.

 

[Flyfrequently]

Mr Flyfrequently's maiden aunt used her trusted solicitor for her will, 7 nieces and nephews as beneficiaries.
Nominated 2 nephews as executors. They decided they were "too busy" and without consultation handed it over to the State Trustees.
Apart from charging more than the 5% quoted, ST did not follow (our) instructions and sold  all her blue chip shares - we wanted to keep 3 of them.
Complaint fell on deaf ears - their response was everyone else wanted to sell and they missed our instruction.
Needless to say, one of said nephews ( BIL) has been removed as Mr Flyfrequently's executor.

Post automatically merged: Dec 14, 2024

Yes I know our WA Public Trustee charges commissions that can be pretty large.

Ditto in Victoria @cove

 

[cove]

My mother was a straight A mathematician when she attended WA Uni.
She split her estate into quarters so three sons received a quarter and seven grandchildren received one 28th. I was impressed……
I handled the estate wind up.
I could never beat my mother at scrabble.

I do remember the corporate raider/lawyer died without a will so that would have been messy. He was a diabetic so he should have known better.

 

[Buzzard]

A problem with wills is, who's there to ensure that the will is actually administered correctly? No one.

 

[Pushka]

A problem with wills is, who's there to ensure that the will is actually administered correctly? No one.

The Executor you've nominated does this. If you don't think they could do the work then choose someone else. Or an independent person like a lawyer. In the past when we were executors to the MIL estate we engaged the lawyer who drew up the will to do all the legal requirements.

 

[tgh]

Our kids share all the leftover dosh and are expected to manage the process, being grown up 'n all….
The lawyer ends up with some input and I opine that this can be useful, if expensive.

 

[Brissy1]

Maybe I'll just leave it all to the cat.

 

[Happy Dude]

My FiL has just got through two years of stress and misery as the executor of his SiL's will. She died with about $1m in assets. Long-term partner wasn't in the will but didn't make any claim. Assests explicitly left to a nephew and a foreign student that became like a daughter. Actual daughter reappears after being estranged for 20 years displeased that only a nominal sum has been left for her and her child (ie deceased's grand-daughter).

Despite the will being clear and explicit and including rationale for the daughter's provision, she ended up with the lion's share. Lawyers did very well out of it too. Hard to see the point of a will with wishes if it can be so readily disregarded.

 

[tgh]

Sil was poorly informed,.
It is common knowledge that wills do not hold up in court.
If something contentious is intended it must be done before death

 

[MARTINE]

Sil was poorly informed,.
It is common knowledge that wills do not hold up in court.
If something contentious is intended it must be done before death

Exactly
You give it away when you are alive is the only way to keep it out of the hands of people you specifically do not wish to have it (and into those you do).
Even if an estranged family member litigates for their share (and loses) - financial and emotional costs reduce the size of the pot.

 

[Pushka]

Exactly
You give it away when you are alive is the only way to keep it out of the hands of people you specifically do not wish to have it (and into those you do).
Even if an estranged family member litigates for their share (and loses) - financial and emotional costs reduce the size of the pot.

Well in a perfect world that's what we plan to do, however I've had too many friends die suddenly and well before the age that you've been able to think about how much you will need for aged care purposes. So it's a balancing act.

 

[Brissy1]

Exactly
You give it away when you are alive is the only way to keep it out of the hands of people you specifically do not wish to have it (and into those you do).
Even if an estranged family member litigates for their share (and loses) - financial and emotional costs reduce the size of the pot.

Yes precedent law has gone off the rails and needs legislation to fix, not as in France although that does show that legislation can stop wasteful litigation by people with this sense of "I'm more entitled" than you.

Unfortunately the primary asset is often the family home, giving that away before you die can be fraught, even with conditions there are many cases of bullying.

I wonder, is a superannuation Binding Nomination (i.e. not part of a will) absolutely fixed and not appealable?

 

[cove]

I was surprised that an unsigned will was accepted in Western Australia. The court concluded that the intent was clear by the deceased.
Still that isn’t the smartest way to do things.
If you want to not provide much for an estranged relative it seems to be a good idea to detail this in your will. Potential beneficiaries can use the funds in the estate to cover their costs.
Hopefully most of us don’t have estranged relatives.

 

[Pushka]

Yes precedent law has gone off the rails and needs legislation to fix, not as in France although that does show that legislation can stop wasteful litigation by people with this sense of "I'm more entitled" than you.

Unfortunately the primary asset is often the family home, giving that away before you die can be fraught, even with conditions there are many cases of bullying.

I wonder, is a superannuation Binding Nomination (i.e. not part of a will) absolutely fixed and not appealable?

That's the only thing that can't be altered but it needs to be updated every three years or it lapses. Partners I understand will simply inherit everything from each other as well.

Post automatically merged: Thursday at 8:47 AM

I was surprised that an unsigned will was accepted in Western Australia. The court concluded that the intent was clear by the deceased.
Still that isn’t the smartest way to do things.
If you want to not provide much for an estranged relative it seems to be a good idea to detail this in your will. Potential beneficiaries can use the funds in the estate to cover their costs.
Hopefully most of us don’t have estranged relatives.

But according to Happy Dude they did exactly explain. But it was overturned.

Despite the will being clear and explicit and including rationale for the daughter's provision, she ended up with the lion's share. Lawyers did very well out of it too. Hard to see the point of a will with wishes if it can be so readily disregarded

 

[Solid]

I wonder, is a superannuation Binding Nomination (i.e. not part of a will) absolutely fixed and not appealable?

Unfortunately not.

If you are in NSW there is a concept called the notional estate provisions which can include super and assets held in trusts and companies to the pool in an estate challenge. There have been cases overturning a nomination because of them,

Everywhere else it is commonly attacked as the wording must be exactly perfect and in accordance with what the super deed requires to be effective. Often the description of who to pay to is incorrect or the process required under the deed is not complied with meaning it is invalid.

 

[Buzzard]

The Executor you've nominated does this. If you don't think they could do the work then choose someone else. Or an independent person like a lawyer. In the past when we were executors to the MIL estate we engaged the lawyer who drew up the will to do all the legal requirements.

My point being, and maybe I wasn't clear, when the executor(s) do not administer the Will correctly. I've seen this happen twice. There is no one to check if it has been done correctly. Sure, you could spend possibly an enormous amount of money by taking legal action, but it may not be financially viable. Then there's the potential stress involved.

 

[Pushka]

My point being, and maybe I wasn't clear, when the executor(s) do not administer the Will correctly. I've seen this happen twice. There is no one to check if it has been done correctly. Sure, you could spend possibly an enormous amount of money by taking legal action, but it may not be financially viable. Then there's the potential stress involved.

Ok. Then I'd go with a Lawyer as executor who must follow the will as stated.