Reviewing Wills and Trust Deeds

Are all of your assets covered by your Will? This is becoming an increasingly relevant question as a large proportion of assets are now owned by trusts or superannuation funds rather than by individuals in their personal capacity. Many people utilising such structures may not realise that assets held by trusts and superannuation funds do not form part of their Estate and as such may not be covered by the provisions in their Wills.

It is wise to review your Will and succession plan regularly to ensure that all assets are dealt with appropriately and in accordance with your wishes.

Issues for consideration include:

• Control of assets: You will need to determine who should control family trusts, businesses and self-managed superannuation funds after your death, and review whether your existing Will, trust deeds and other legal documentation will achieve your wishes in this respect. Amendments to these documents may be required in order to ensure that control of assets passes as intended.
• Division of assets: You should review your beneficiary nominations under superannuation and trust funds, and consider whether non-Estate assets have been taken into account in the overall division of your Estate.
• Location of key documents: You should make sure that you and your proposed executor know where your original Will and original trust deeds are held. We strongly recommend that such documents be stored in a fire proof safe or an accountant’s or solicitor’s deeds register.

Recording and review of key dates and details: It is important to be aware of vesting dates under any trusts, to review whether all relevant persons named in trust deeds are living, and to ensure that provision has been made for what is to happen upon their death.

Review of stamp duty and taxation implications: The State Revenue Office currently takes the position that properties passed to testamentary trusts via a Will may not be exempt from stamp duty. Your Will should allow for flexibility in the creation of any testamentary trusts to avoid adverse stamp duty implications.
Revision of Wills following any changes to your circumstances: Wills should be immediately reviewed following any major changes to your circumstances, such as marriage or divorce, or the death or incapacity of a proposed executor, guardian or trustee.

We recommend reviewing your and your family’s Wills at least every 3-5 years to ensure that they adequately provide for your current family and financial circumstances.

If you require any assistance in relation to your Wills and succession planning, please contact Nicholas Brand or Ruth McNamara.