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Partnership of Discretionary Trusts (Pros and Cons)

Partnership of Discretionary Trust should be carefully considered before making a decision on the business structure

Table of Contents

Partnership of Discretionary Trust as a Form of Ownership

When contemplating the acquisition of an asset or commencing a new business, the first question that should be considered is the form of ownership.  When more than one family group is involved, the usual options are a company or unit trust.

When determining the suitability of a structure, you must bear in mind the particular advantages and disadvantages of the entity being considered.  No one entity is suitable in all circumstances.

In recent times, some have suggested the use of a partnership of discretionary trusts.  

The purpose of this article is to set out the key advantages and disadvantages of the Partnership of Discretionary Trusts structure which will identify key planning points for this structure.

The advantages and disadvantages of the Partnership of Discretionary Trusts are identified by comparing the features of a company/unit trust alternative.

Partnership of Discretionary Trusts Advantages

Maximum Net Asset Value Test

The small business capital gain tax concessions enable most privately owned businesses to sell their business without triggering this tax.  

To be eligible for ...

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Aussiegolfa Appeal: Relief For Grandfathered Trusts?

The Aussiegolfa appeal (Aussiegolfa Pty Ltd (Trustee) v FC of T [2018] FCAFC 122) involved the provision of residential accommodation to a related party of a superannuation fund. Amongst the range of investment rules that apply to superannuation funds, two key issues require consideration for this kind of transaction: the in-house asset rules and the sole purpose test in s 62 and 71 of the Superannuation Industry (Supervision) Act 1993 (SISA). These issues were considered and clarified in the Aussiegolfa appeal. ...

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Why You Should Care What Legacy You Leave

When you die, you can gift your physical possessions, but you also have an opportunity to pass on your values, attitudes and philosophies.

When considering your Will and Legacy, create opportunities for flexibility and choice (within a structured environment).  Too many limitations can exacerbate poor relationships and create unnecessary expense – stay true to your ideals and make practical choices! ...

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Law Society Warns Against Will Kits

The Queensland Law Society has issued a warning against do-it-yourself will kits:

“A large percentage of Australians believe that filling out a will kit from their local news agency or downloaded from the internet, will cover them when they pass away. Decades ago that might have been true. But in a modern complex technological world, it is not.

Gone are the days where people simply had a house, a car and a few dollars in the bank. Once upon a time a will might have dealt with those assets. That is no longer the case.

Anyone who relies on a downloaded will to give effect to the distribution of your assets on your death, is taking dangerous risks for yourself, your family and loved ones.

Why?

These days we have far more complex ways of saving for our future. Unlike 40 years ago, we all now have Superannuation. Our banks are no longer that large sandstone building in the middle of town. Banks accounts are online. A growing number of us have insurance as a safety net for our families. Many of us have shares - Australian and international. The list goes on.

Many mistakenly believe that all their assets are covered under a simple will that, once signed, means their wishes will be carried out following their death.

In reality, many of these modern day assets are not covered by a will, and those that are, remain exposed to claims. They can be exposed because the laws change according to where you live and where your asset is kept.

On top of that, we are living longer and that is resulting in more and more people losing capacity. Many people overlook the impact a Power of Attorney can have on assets in a will.

Also unlike 40 years ago, many people are now living in retirement villages or nursing homes. Retirements plans and nursing home care impacts on your estate.

These are just a few of the matters that are not covered by filling out that will kit. Seeking legal advice from your trusted, local solicitor is key to ensuring your wishes are carried out when you lose ...

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Are You Putting Off Making A will? Don’t Wait. Here’s Why.

Putting Off Making A Will? Don’t Wait. Here’s Why.
We are never able to predict when or how our time will come. Of all the things on our lengthy to-do lists, making a will is one of the most important things you can do for your family’s future. Have you been putting off drawing up your will?

If this is something you haven’t managed to do yet, you’re not alone. We at Rouse Lawyers’ Estate Planning department understand that it can be very difficult to think about your own death. It’s even harder to imagine yourself in a situation where you’re unable to make vital decisions for yourself.

Sadly, however, life is uncertain and the consequences of not planning ahead can make things very difficult for your loved ones. They will already be battling to cope with the fact that they have lost you, but the situation will be made far worse for them if you didn’t make a will.
What happens if you die without a will?
We have an article on our practice’s website that describes more fully what happens when you die intestate (without having drawn up a will). Here are a few key points to consider:

• Your loved ones must assume the whole burden of sorting out your affairs and arranging the funeral.
• Your assets will be distributed according to the intestacy rules, which might not be what you wanted.
• It may not be the most tax-efficient way of distributing the assets and could cut down on income flexibility. The beneficiaries will be paid out their shares directly upon your estate being wound up.
• The administrative burden of demonstrating entitlement to various banks, corporations and government institutions will be greater without a will.

The situation will be almost as bad for your loved ones if you don’t die but are left unable to make decisions for yourself if there is nobody with your Power of Attorney who can make them for you.
Can I write my will myself?
Yes, you could – in ...

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Estate Planning: Passing On Your Success Not Distress

Estate Planning: How To Pass On Your Success Without Distress

No one likes to think about life coming to an end, but if you’ve worked hard and reaped the rewards of your efforts, you’ll want to pass the fruits of your success to loved ones – without distress. Estate planning and making a legally binding will are just some of the ways to ensure your family is looked after and your assets are not left in limbo.

Failing to plan for your death can have serious consequences for your estate

Have you worked hard, whether to a plan or otherwise, and found your efforts rewarding for both you and your loved ones?

How do you plan to share that success, after you have gone?

Have you failed to plan and, therefore, planned to fail in death? No doubt this is contrary to how successfully you live your life now!

Is your inaction in preparing a will and estate plan going to cause:

• disharmony within your family
• confusion as to what you wanted
• distress over what you were perceived to have really intended, or
• unnecessary delays and expense, diminishing your successful legacy?

Too many people (a reported 45%) have not given their families the luxury of a will or plan to make their death a little less agonizing, time-consuming, emotionally draining and costly.

We all know someone who has allowed their distress in the grieving process to morph into unnecessary and expensive disputes. Why not minimize that by making a plan now?

You have two options. Simple!

Your options are simple: fail to plan (therefore planning to fail) or plan to succeed.

Fail to plan

The easiest option is to take the casual approach. Do nothing, keep letting your busy life control your lack of direction after death and let your loved ones deal with the consequences. Simply…

• Rely on the Intestacy Provisions: if you have a spouse or children, this can mean only a portion of your assets will ...

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4 Things to Consider After a Relationship Breakdown

Living arrangements, access to children and the division of property are usually the main priorities for people when a relationship breaks down. However, when going through a breakup, it’s not uncommon for important issues to be put on the backburner. If you’re not careful, this can lead to some unintended and catastrophic results.

Here’s 4 things you should bear in mind:

1. Enduring Power of Attorney (EPA)

Regardless of whether a separation actually occurs, it’s a good idea to have an enduring power of attorney set up. An EPA can only be revoked by the termination of a registered relationship or divorce (and even then, only to the extent it gives the divorcee power). This helps to protect your interests in a worse-case scenario.

Let’s face it: finalizing a divorce or termination is a messy affair at the best of times. Getting yourself a new EPA will ensure that the right people are appointed to make personal, health and financial decisions if the need arises.

2. Your Will

Okay, here’s the bad news: you’re dead. The good news is, you got your affairs in order before meeting your maker. It’s important to be proactive when dealing with life-after-death, and your family are glad that you had a will prepared before you went on that ill-fated skiing trip. (They just wish you’d taken some skis).

Like an EPA, only a divorce or termination of a registered relationship can revoke a will. After you and your beau part ways, it’s important to create a new will that reflects your changed circumstances. Remember that until your divorce or termination is finalised, that person remains your “spouse”. In other words, it doesn’t matter how long you’ve been apart for: if you didn’t finalise the paperwork, your ex can still make a claim against your estate.

3. Your Superannuation

For a word that starts with “super”, superannuation may be one of the more boring topics in the world. Still, there’s a reason it’s on this list. Bear in mind that, on top of your ...

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What happens if you die without a Will?

In the event that you do not have a valid Will, on the date of your death, your estate will be distributed in accordance with the rules of intestacy, which are as follows:

If you have a Spouse and no Children

Your entire estate will go to your spouse.

If you have a Spouse and Children

If the value of the estate is less than $150,000.00 excluding household chattels, then all to your spouse.  If the value exceeds $150,000 excluding household chattels then household chattels to the spouse, $150,000 to the spouse and:

  • If one child -  one half of the rest of the estate, with the child receiving the other half; or
  • If more than one child – one third of the rest of the estate, with the remainder of the estate being divided equally among the children.  If a child of yours has predeceased you, leaving children, then their children take the interest of that your child would have taken, equally. 

Example:  Bill dies leaving his wife Mary and two children Peter and Mark.  His estate is worth $500,000.00 (excluding household chattels).  Mary receives $150,000.00, household chattels and $116,666.66.  Peter and Mark each receive $116,666.66.

No spouse but have Children: children receive estate divided equally between them.

If you have a De facto spouse: to receive a spousal entitlement they must be the sole partner of yours in a de facto relationship with you, for a continuous period of not less than 2 years prior to death.

De facto relationships are defined as two adult persons, who live together as a couple, and who are not married to one another or related by family.

Example: Bill and Mary have been dating for two and a half years, but only living together for 18 months.   Bill has two children from his previous marriage: Peter and Mark.   His estate is worth $500,000.00.  In addition, ...

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