How long can I tie up the kids inheritance?
As parents we want the best for our children and at times we feel that we have to save our children from themselves.
Solicitors are frequently asked, "How long can I make my children wait before they receive their inheritance after I die?". It is understandable in certain circumstances that a parent would ask this, because some inheritances which may be wasted if received at 18, might not be wasted if received at 25.
When considering this issue however, it is important to consider the rule in Saunders v Vautier. This old English case is binding on Australia Courts and is to the effect that when all beneficiaries under a Will are of adult age and under no disability, such beneficiaries may require the trustee to terminate the trust and transfer their shares in the Estate to them, regardless of the age specified in the Will.
Homemade Wills and Will kits
"I can do it myself. I'm not going to pay a solicitor to do my Will. Why should I?"
1. A properly drafted Will prepared by a solicitor, is your best insurance that your estate will be distributed in accordance with your wishes and that your loved ones will be properly provided for.
2. A solicitor can discuss with you when preparing your Will, ideas regarding the distribution of your estate which may:
- Maximise the benefit to your beneficiaries.
- Minimise the likelihood of an expensive family provisions claim being made against your estate.
3. A few hundred dollars now might prevent the estate having to expend $20,000 or so on an expensive construction or rectification application to the Supreme Court, to correct a defect in a badly prepared Will.
Do I really need a Will?
It might be that you think your estate is only small and therefore it is not worth the cost of having a Will prepared. Consider the following however:
1. Your estate may be much larger than you anticipate, if for example superannuation death benefits and the proceeds of insurance claims are paid into the estate.
2. Asset holders who would have paid monies into the estate or transferred assets to the estate on the basis of the Will, may now require the estate to go to the cost of obtaining a Grant of Letters of Administration because there is no Will.
3. Without a Will, your estate may well be divided in a manner in which you did not anticipate, and to the detriment of your loved ones. This is because without a Will, the Rules of Intestacy are applied.
4. The person appointed to administer your estate (and likely the one who will act as trustee for minor beneficiaries) may not be the person you would have chosen, as without a Will, such appointment will be made according to the "priority" set out in the Uniform Civil Procedure Rules 1999 and not in accordance with your wishes.
It is always prudent to have a valid and updated Will. At Springwood Lawyers, we can assist you in this regard.
Giftover to grandchildren
Section 33N of the Succession Act 1981 ensures that if you leave part of your estate to one of your children and that child predeceases you, then the share of your estate which you left to your now deceased child, will be divided equally amongst your deceased child's children (your grandchildren) upon your death.
This is how the law says that your Will works even if you Will does not say so and to change this, if you do not want the giftover to grandchildren to apply, then you must specifically say so in your Will.
Also, you need to be aware in these days of blended families, that the giftover to grandchildren does not apply in the case of a stepchild, unless your specifically state in your Will that this is what you want to happen.
It is always best to get an experienced solicitor to prepare your Will.
The FDR requirement
The Family Law Act provides that unless you fall within an exempt category (such as where there is urgency, risk of family violence or where one or both parties are unable to effectively participate) parties who seek to bring an Application to the Court seeking parenting orders, are first required to attend a Family Dispute Resolution ('FDR'). This is a mediation where a specially qualified mediator helps resolve some or all of the parties' dispute regarding parenting arrangements.
If one parent refuses to participate in the FDR, then the other parent will be issued with a 60I Certificate, which will allow that party to bring an application in the court seeking parenting orders. If the parties attend an FDR and either an agreement is reached or not reached, each party may be issued with a 60I Certificate.
There are two main choices of Family Dispute Resolution:
- Government funded organisations such as Family Relationship Centres or Legal Aid. This is usually a cheaper option for parties, however there can be delay in having a conference scheduled and most Family Relationship Centres do not allow parties to be represented by a solicitor.
- Private Family Dispute Resolution practitioner. This is a more expensive option, however choosing to use a private Family Dispute Resolution practitioner can help to eliminate significant delay and ensure that you are represented by your own choice of lawyers.
Springwood Lawyers is a specialised family law firm and is able to advise you regarding parenting matters and represent you at FDR.