Discretionary trusts are established inter vivos i.e. before death by Deed or can come into existence after death by being created under the terms of a Will. They are used for asset protection and income streaming purposes.

There is no pro forma for a discretionary trust but they always at a minimum, invest a trustee with powers and discretions in relation to the distribution of income and capital among beneficiaries. There are numerous other features that must be decided and documented according to the particular circumstances of each person.

Life Interest

A trust can be created to grant to a beneficiary a “life interest” i.e. the right to receive income from a particular asset or the right to reside in a residence to a “life tenant” during their lifetime. The interest may allow the life tenant the right to request that their home he or she is permitted to occupy be sold and another in a different locality, be acquired.

Right to Reside

A “right to reside” in a home can be given to a spouse or other family member living with you to allow them to continue to reside in that home after your death not for the remainder of their life but until a date or event specified in your Will. Once the interest ceases, the residuary beneficiaries can deal with the property in such manner as they see fit.

As with a “life interest” it is important to specify in your Will who is to meet expenses such as rates, insurance, utilities, maintenance etc, i.e. the occupier or the estate.

Protective Trust

Protective Trusts can be created inter vivos or by a Will to protect the interests of a vulnerable beneficiary, for example a person who is subject to high business risk. In those circumstances the person might be entitled to a trust asset at e.g. age 30 yrs but not if they are bankrupt or insolvent. Such trust is designed to prevent a benefit intended for a beneficiary falling into the hands of their creditors. A Discretionary Trust can also achieve much the same outcome.
Another species of Protective Trust can be used to provide how the special needs of a family member will be met into the future.

Special Disability Trust

The Federal Government provides for tax concessions where a trust is established for a person who has a special disability. That trust must have mandatory terms included in it.

These are special disability trusts, and the mandatory terms require benefits to be solely for the disabled beneficiary during their lifetime, and for prescribed purposes including accommodation and their care.

Specific Purpose Trust

You can set aside funds in a trust to be used for specific purposes, such as education or charity.
The trustee decides what distributions are made to meet the specific purpose, and terms can be set as to how the trustee makes such distributions including who can receive them.

Superannuation Proceeds Trust

So that tax benefits of superannuation can be maximised, you can provide in your Will that any superannuation benefits paid to your estate are held in a trust that only benefits people who are entitled to tax concessions, being either a spouse or dependent children.

Estate Proceeds Trust

If your Will is prepared so as to allow it, a beneficiary may elect to receive their benefit by way of a trust rather than receiving it personally. This can be useful where the beneficiary seeks to insulate the benefit from adverse (e.g. creditor or estranged partner) claims or minimise income they would otherwise generate in circumstances where the Will does not address such contingencies.

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You can make this same request when someone dies without a will. To formally ask for a greater share based on your needs, you can make what is called a “Family Provision Application”. One of these applications can also be made on the behalf of someone else, for example, if the person is underage.

Not just any family member is entitled to consideration for a Family Provision Application. The only people who may apply are spouses, children, or dependants.

For the application to be successful, the applicant must show that “adequate provision” has not been made from the estate for the applicant’s “proper maintenance and support”.

The post Is it possible to dispute the split of the estate when someone dies intestate? appeared first on QLD Estate Lawyers.

Property in the sole name of the deceased (or their share of assets co-owned other than as “joint tenants”) must be distributed to a spouse and children. If there is no spouse or children, they generally go to the parents of the person who passed away or to others down the list of kin.

In Queensland, the spouse receives the first $150,000, plus one third of the residue where there is more than one child. If there is only one child, though, the spouse gets half of what’s left. The surviving child or children share in the remaining half or two thirds of the amount left over.

The post How is the estate split between family members? appeared first on QLD Estate Lawyers.

For more information on contesting a will, visit our will disputes page. Alternatively, feel free to contact our friendly team – we can help you figure out the best course of action for your specific situation.

The post How Much Does It Cost To Contest A Will? appeared first on QLD Estate Lawyers.

In our experience as will dispute lawyers, we have come across some common questions that people need answers to when it comes to contesting wills. We’ve answered some of the main ones here, so you know where you stand before taking action.

Can A Will Be Challenged After Probate Has Been Granted?

An application to challenge a will must be brought within 9 months. A will can be challenged after probate has been granted provided it is still within the 9 months after the will-maker’s death.

Contesting A Will After Probate Is Granted

Probate is the Supreme Court’s official recognition that a will is legally valid. Contesting a will after probate has been granted makes the process more difficult – you will need to meet a range of conditions before your application proceeds.

Because probate has already been granted, the onus is on the person contesting the will to prove the will is invalid, usually based on new information that wasn’t available before probate was granted. New information could include situations where:

• An older will that contains conflicting wishes to the will that was granted probate was discovered.
• The executor is not performing their duties correctly after probate was granted, causing beneficiaries to receive assets of reduced value or not receive them at all.

How To Contest A Will After Probate

A person wishing to contest a will must serve an application giving notice of their intention to the executor. The application must be accompanied by an affidavit setting out the grounds why they believe adequate provision has not been made for them in the will-maker’s will.

Is There A Time Limit To Probate A Will?

There is no time limit to obtain probate. However, an executor becomes liable to pay interest on any legacy not distributed within 1 year of the will-maker’s death.

The post Getting started on Contesting a Will appeared first on QLD Estate Lawyers.

Have more questions you need answered? Get in touch with the experienced team at QEL – we’re always happy to help.

The post Who Can Contest a Will? appeared first on QLD Estate Lawyers.

1. You should ensure there are two witnesses to your will.
2. The witnesses should not stand to receive any gift from the will.

Following both of these conditions means your will is more likely to be executed as you wish, helping your loved ones manage a difficult time.

Do you need help making your will? Contact our experienced team of estate lawyers to discuss what we can do for you.

The post Who can witness a will? appeared first on QLD Estate Lawyers.

When writing a will in Australia, you are required to consider several issues:

• Decide who to appoint as your Executor or Executors. The Executor is responsible for carrying out your wishes
• Decide who should inherit your property.
• If you have children under 18 years of age, who should be appointed as their guardian?
• If your gift may go to a child or person with a disability, how should their gift be managed? Should a trust be established?

The post What do I need to make a will? appeared first on QLD Estate Lawyers.

When deciding whether you need a lawyer to help make your will, consider the following:

Pros

• A lawyer can provide advice on drafting your will to ensure it is structured in a manner that will ultimately see your wishes effected. This may include advice about inter vivos gifts and testamentary trusts.
• A lawyer can guide you as to the potential ramifications of your intended gifts.
• A lawyer can provide you with advice about gifts to spouses and children in blended family arrangements.

Cons

• A will drafted by a lawyer usually costs more than a DIY will-kit.

Advice provided by a lawyer regarding the structure of your will can safeguard your estate from challenges and may save your loved ones a great deal of stress and expense down the track.

The post Do you need a lawyer to make a will? appeared first on QLD Estate Lawyers.

• The Public Trustee of Queensland
• A law firm
• DIY will kits.

If you have any complexities in your will, it’s always best to make your will alongside a qualified expert. Fill out the form below for an obligation free chat about your circumstances.

The post Where can I make a will? appeared first on QLD Estate Lawyers.