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Being reminded every single day about mortality, I am drafting wills,

 

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I'm doing deathbed wills, I'm administering someone's estate.

 

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Just constantly being reminded about mortality has become incredibly life-affirming

 

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because it's a reminder that it' ... Read More

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Being reminded every single day about mortality, I am drafting wills,

 

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I'm doing deathbed wills, I'm administering someone's estate.

 

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Just constantly being reminded about mortality has become incredibly life-affirming

 

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because it's a reminder that it's all going to end one day and who knows when

 

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and who knows how long we've got.

 

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And so for me, it's just an absolute no-brainer and it's not that hard to make provision for that.

 

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A lot of people that don't do the job that I've got that don't have the luxury

 

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of being reminded every day about mortality is just a refusal to accept that.

 

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And it's not a criticism. There's no vague judgments in that observation.

 

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But you ask most people just to start talking about death, and they're just not comfortable.

 

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We're not comfortable having the conversation about ourselves, about not being here.

 

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And, you know, of course, we worry about our kids, and we just can't face it, can we?

 

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intro:

Welcome to Don't Be Caught Dead, a podcast encouraging open conversations about

 

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dying and the death of a loved one.

 

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I'm your host, Catherine Ashton, founder of Critical Info, and I'm helping to

 

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bring your stories of death back to life.

 

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Because while you may not be ready to die, at least you can be prepared.

 

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Don't Be Caught Dead acknowledges the lands of the Kulin Nations and recognises

 

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their connection to land, sea and community.

 

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We pay our respects to their elders, past, present and emerging and extend that

 

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respect to all Aboriginal and Torres Strait Islander and First Nation peoples around the globe.

 

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Today we are speaking with Greg Russo, one of Victoria's most experienced and

 

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respected succession law solicitors.

 

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I had the privilege of meeting Greg earlier this year when I had the idea to

 

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put together a guide, what to do when your loved one dies.

 

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So I reached out to Greg because I

 

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needed someone to make sure it was

 

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accurate with its legal content and so I didn't get in trouble so since then

 

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I have had quite a few occasions where people have come up to me and asked what

 

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are the legal ramifications of this question or that question So,

 

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I thought we would get Greg back on the show for the first time to actually

 

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answer some of your questions.

 

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Welcome to the show, Greg. Thanks, Catherine. Great to be here.

 

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Thanks for inviting me on.

 

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So tell me, how did you get involved in law?

 

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That's a good question. It's got a short answer and a long answer.

 

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I'll give you the short answer.

 

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I was a very good student at school and I had a father who was very keen for

 

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me to do medicine or law or engineering, which he saw as, you know,

 

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would set me up very well.

 

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And I just love maths. I love numbers and maths and logic. And I negotiated

 

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with him. And he said, let's, you know, I want you to do medicine.

 

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Why don't we look at that?

 

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And we argued about that. and I kept coming back. I just want to do science. I want to do numbers.

 

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I want to learn about maths. So, in the end, I read a lot as well as having a love for maths.

 

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So, he and I struck a deal. He said, do science and law and if you don't like

 

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law, you can drop it. So, that's how I ended up starting the law degree.

 

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I think with a lot of people, maybe of my generation, we weren't exactly sure what we wanted to do.

 

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So, I finished the law degree because I started it and then I started working

 

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in the law for a couple of years and then I was going to go and do a PhD in

 

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maths, but it kind of got me interested and I kept learning new things.

 

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And it was about 15 years ago that I started working exclusively in this area

 

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that we're going to talk about today, succession.

 

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And it's the one area of the law where a lot of the logic and the maths and

 

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the numbers comes into play.

 

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You have to be very good with understanding the consequences of finances and tax.

 

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It's an area where there's a lot of old law, so we still quote cases from the

 

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16th and the 17th and the 18th century, but it's one where you have to keep absolutely up to date.

 

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And on top of all of that, there's a real human element to it.

 

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Your guide is a kind of a guide which is robust in the information it gives,

 

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but it's designed, as I understand it, and certainly having worked on it with

 

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you, that it's meant to be a very pragmatic document for people at a time when

 

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when they're at a very low ebb, when they're about to or they've just suffered a tragedy.

 

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So the same with me. It's a real privilege for me to be able to be there for

 

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people at what is a really bad time in their life and to kind of just be the

 

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objective, rational person, say, yes, okay, this is what you need to do.

 

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This is how you do it. And this is the process. I really take that as an absolute

 

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privilege. So that's the short version.

 

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Well, that makes sense because from where I sit as the host of this show,

 

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I've heard many stories about the emotions associated when someone dies and

 

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just how vulnerable people are.

 

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And to be an expert that someone can trust and look to for guidance and support

 

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at that time is really, really valuable.

 

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No, it's great to be able to do. Yep.

 

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So, let's launch into some of the questions that we've received.

 

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Looking at legal documents that we should have in place prior to death,

 

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what are the important documents that we should have and why are they important? Yeah.

 

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So it's a really good starting point. And so what you have to think about is

 

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death from a succession perspective is about change of ownership or change of control. So I'm alive.

 

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I own my car. When I pass away, what's going to happen to the ownership of my car?

 

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I'm alive I'm a member of a super fund when

 

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I die or lose capacity what happens to my

 

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super fund member balance what happens to the running of the fund I'm

 

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running a business I die or lose capacity what's going to

 

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happen so the answer to the question is what documents you need is the answer

 

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to that question is what documents do you need in order to continue the ownership

 

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of assets while you're incapacitated and in order to transfer the ownership

 

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or control of assets that's after you pass away.

 

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So, you definitely need a will to deal with things that you own.

 

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You need super nominations to deal with super because you don't actually own your super.

 

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That's another session, but you need super nominations to deal with your super.

 

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You need to have made arrangements in relation to your business.

 

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People often enter into business succession plans and you need to have made

 

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arrangements in relation to trusts.

 

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They all cover the circumstances about what happens when you die and then sort

 

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of mirrored to that if you're covering also what's going to happen if you were

 

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to lose capacity the ability to make decisions there's a whole another set of

 

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documents which mirror those that we generally refer to as powers of attorney.

 

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Guardianship documents depending on what state you're in powers of attorney

 

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guardianship documents advanced care directives medical treatment plans things

 

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like that so you need wills and those sort of documents and you need powers

 

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of attorney and those sort of documents.

 

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So, just to make it clear in my head, if I had a child who was under the age

 

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of 18 and if I was to become incapacitated or die, what would I need in return for them?

 

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Okay, so what wills and powers of attorney are really good at dealing with is assets and ownership.

 

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Guardianship what they're not so good at dealing with is the

 

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care of children under the age of 18 after your

 

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passing or after your inability to care for them the the

 

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the care of children after 18 from a guardianship perspective is generally dealt

 

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with in the family court or the children's court depending on what what what

 

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what jurisdiction you're in but you certainly can in your will you can express

 

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a desire you can say look uh if i was to pass away and there's no other guardian in my son, Bob.

 

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It's my desire that my sister and brother-in-law or whoever it is would be his

 

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testamentary guardian.

 

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So you can certainly make a recommendation and the court would look at that

 

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if it was asked to and say, well, here's the person that loved Bob the most

 

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in the world and they recommend that such and such and such and such be appointed

 

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his guardian. And that probably won't be countermanded.

 

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The other thing you can do in wills is you can look after Bob's financial future

 

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by creating trusts and things like that.

 

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So, you can allocate money, but that's sort of separate.

 

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That's under a will, an executor looking after Bob's financial interest because

 

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Bob, while he's under 18, can't give a receipt.

 

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So, he can't receive any money from your estate until he turns 18 as a minimum.

 

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So, with these sort of documents, you can make recommendations and express a

 

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desire about guardianship and you can put in place testamentary trust and financial

 

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care. And you can do those across both documents.

 

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Okay, that's good to know. And tell me, there was also documents you mentioned

 

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like powers of attorney, advanced care directive, advanced plan.

 

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Could you just sort of give us an example with those?

 

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I know it's quite complex, but as best as you can.

 

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Yep, yep. So, what you learn once you start digging below the surface is that

 

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the word capacity is just this group word that from a legal perspective covers

 

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a lot of different types of capacity.

 

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So there's capacity to do a will, there's capacity to make financial decisions,

 

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there's capacity to make medical decisions.

 

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You know, if you need to have an operation on your foot, you have to make informed,

 

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you have to give informed consent to the doctor, you have to have capacity to

 

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make medical decisions to do that. All right. So if you ever die.

 

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Wills come into effect and other you know things like binding

 

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death nominations if you lose so so

 

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if if if you've got capacity and you're alive you

 

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make your own medical decisions make your own financial decisions look after

 

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your own kids if there's that period of time between being mentally competent

 

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and alive and not being here anymore if you lose one or other of your capacities

 

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and you could lose one you could lose the inner you could lose the ability to

 

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make financial decisions,

 

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but still be really clear about what you want medically.

 

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If you lose one or other of your capacities, there are mechanisms that you can

 

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put in place while you've got capacity or that can be put in place for you after

 

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you lose capacity that can allow a substituted decision maker to make decisions for you.

 

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So, a power of attorney, as that term is generally understood,

 

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generally refers to financial decision-making authority.

 

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So, if I appointed you, Catherine, to be my attorney under a power of attorney

 

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to make financial decisions subject to the terms.

 

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If I then lost capacity, you would step into my shoes and make financial decisions for me.

 

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And then there's this whole family of documents that you can use to assist in

 

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your medical care at a time when you might not be able to express a desire to

 

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communicate or have capacity to make decisions.

 

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Depending on what state you're in, you might be doing a medical treatment decision -maker appointment.

 

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You might be doing a medical power of attorney. You might be doing an advanced

 

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care plan or an advanced care document of some sort.

 

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And ultimately, you might be doing documents to assist with the voluntary assisted

 

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dying process, which is also available in each state.

 

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So, those suite of documents, in different ways,

 

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are a way of you, while you're competent, setting in mechanisms and appointing

 

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people to sign off written consent for operations and other medical procedures, dental procedures,

 

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but also in appropriate circumstances to make an end of life decision for you.

 

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And so those advanced care plans talk about things that you would like to happen.

 

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I would like to be able to experience a particular religious service once a

 

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week, or I don't want my brother to come and visit me, things like that,

 

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things that you can express a desire about, but also you can put in stipulations.

 

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You can say, I am not to have have blood transfusions. I'm not to receive chemotherapy.

 

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You can put out black areas where if those procedures are then undertaken would constitute an assault.

 

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So with those documents, you can achieve a degree of future autonomy at a time

 

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when you have lost decision making capacity.

 

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Generally state by state, so you need to sort of look carefully at which state

 

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you're in and what the relevant legislation says.

 

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And so the first thing that comes to mind for me is about resuscitation as well.

 

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That would be covered under that suite of documents, wouldn't it?

 

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Yeah, there are some states have specific rules about that and specific forms,

 

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you know, not to be, because it's such a common one. It's a great one to raise.

 

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Tick, I do not want to be resuscitated. And I guess the other thing to say here

 

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is this, it's always a good idea to not be paranoid about this,

 

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but to think about your own circumstances and to put as many checks and balances in place.

 

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Because what you want to do is you want to remove the necessity for judgment

 

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calls to be made by the medical profession, if possible, because some doctors

 

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and some nurses and some health providers are fantastic.

 

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Others are not so, and it's a bit of a luck of the draw. So the more directions

 

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you give, I do not want to be resuscitated.

 

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I do not want to be kept on life support if that's what you want.

 

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The more directions you can give that are on your medical file,

 

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the easier it is for the medical staff to respect your wishes.

 

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And that would also help for organ donation, wouldn't it?

 

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Yeah, organ donation is a little bit tricky.

 

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So you almost have to have a tattoo, I reckon, saying I'm an organ donor,

 

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because it's just a practical problem that if it's important for you that you're

 

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able to donate your organs,

 

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then you need to make sure that medical staff are aware of that so that there

 

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is a pre-death communication about that.

 

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And sometimes people die in circumstances where it's not clear.

 

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There can be an organ donor card that can be kept in a wallet and there can

 

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be a search done, but it's a bit hit and miss.

 

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Bottom line is if there is no positive understanding that you are an organ donor,

 

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your organs won't be donated and it might not be learned until there's a meeting

 

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with the family sometime after death, at which time it might be too late.

 

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So, it's important, I think, if you do want to donate your organs,

 

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that there are processes for you to sign up and to register,

 

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and then that you notify as many people, your GP, your specialist,

 

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your family members, anyone that's likely to be involved,

 

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with your passing, and notify them that, make sure you tell people that I want

 

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to donate my organs, because otherwise, it might be an opportunity lost.

 

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I think what I hear with stories being told to me is that whatever our wishes seem to be,

 

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it's always good to have conversations about them because sometimes those assumptions

 

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can vary according to family member as well.

 

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Oh, absolutely. People want to do what they think is right, but the clearer you make it, the better.

 

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My father passed away three or four years ago, and he was very clear about what

 

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he wanted. And even though it was a pretty tough decision to make,

 

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we had the knowledge that this was okay.

 

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This is what he wanted. This was something that he would have consented to and

 

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he would have, you know, he would have allowed it.

 

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It was almost like he was sitting there going, yeah, it's all good. That's fine.

 

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At a time when he could no longer communicate.

 

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The other thing to say about that, Catherine, is as many conversations as possible

 

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is important because at the end of the day, the medical profession is as much

 

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a vocation as a profession. People that go into and stay in the medical profession

 

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are there because they love the work.

 

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And the clearer you can be about what your expectations and wishes are,

 

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the more readily they'll be able to enforce those and the more readily they'll want to.

 

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You know, if I've got a client who's really clear about what's something that

 

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they want, I mean, it just really makes an impression on me.

 

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And it's the same with the medical profession. Yeah.

 

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So, yeah, bang a loud, ring a loud bell. Yeah, I totally agree with you.

 

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Now, next of kin, that always seems to me to be quite a tricky one because the

 

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definition depends on what states.

 

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Can you talk a little bit about next of kin, what it means and what those implications are?

 

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Yeah, it's a really good example to just sort of reinforce that point that you

 

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and I have already made individually about having a good think about these things

 

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and putting checks and balances and protocols in place.

 

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The next of kin is, at its fundamental, is just a fallback position.

 

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The law operates on the basis of presumptions, you know, presumption of innocence,

 

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presumption of, you know, whether a will's been destroyed or not,

 

243

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and a presumption as to who the person should be talking on your behalf when

 

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you can no longer speak or communicate.

 

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And that's your next of kin. And it does vary from state to state.

 

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It's usually the spouse.

 

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In the absence of a spouse, it's usually the oldest child, a parent if there

 

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are no children, a sibling.

 

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And it's worked out based on proximity on a family tree.

 

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The next of kin is generally supplanted if you nominate an attorney,

 

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if you nominate a medical treatment decision maker, if you nominate an executor.

 

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But if you don't have one or other of those people, then the next of kin will

 

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be asked to come in and make a decision.

 

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And that might be okay if there's an intersection between who they are and who

 

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the best person to make the decision is, but often that's not the case.

 

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So, if for no other reason than having the right decision maker making these

 

257

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hard decisions for you, these sort of documents that we've been talking about

 

258

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are absolutely essential.

 

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I suppose the first thing that comes to my mind is the amount of blended families

 

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we have nowadays, and sometimes the conventional structure of next of kin may not be appropriate.

 

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Yeah, no, that's a really good point that the next of kin formula was created

 

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at a time when blended families just didn't exist, I think.

 

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So yeah, quite often the second spouse and the siblings will be in violent disagreement.

 

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And of course, what that does is it sometimes exacerbates a conflict that already

 

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exists, but often it creates a conflict that otherwise didn't exist.

 

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Exist and so yeah and if I'm in

 

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a blended family and I'm being sensible and pragmatic about it

 

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I might recognize that my partner may have

 

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different views than my son and you

 

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know what if I'm pragmatic and sensible I'm going to sit

 

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down with the two of them and say right you know I'm

 

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not going to be here forever I've had some bad news what are we going to do

 

273

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about my burial what are we going to do about this what are we going to do about

 

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that and to put it all on the table because a lot of these disputes that occur

 

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during incapacity or after death death have to do with what it is presumed I

 

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would have wanted if I was still alive.

 

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And the best way of addressing that is to talk about it while you still can.

 

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And resolve those disputes before they arise. Yeah.

 

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And I'm assuming you've seen quite a bad scenario or quite a few if they're

 

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arriving at your office that there might have been disputes where you just can't

 

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come to an amicable solution.

 

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Oh, yeah. I mean, it's a horrible observation, but to a degree it's my bread

 

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and butter that we do, you know, one of the cornerstones of my practice for

 

284

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the last 15 years has been negotiating.

 

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Litigating and trying to resolve estate disputes. And of course, an estate dispute,

 

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whether it's over, you know, the burial of a body or the disposal of a body

 

287

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or the distribution of an estate or something that seems quite bizarre and quite

 

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discreet, whatever it's about,

 

289

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an estate dispute is, it's a horrible dispute and it's a really hard dispute

 

290

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to run because it's like watching a movie where you've scrubbed out the main

 

291

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character or reading a play and all the lines of the main characters because

 

292

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the main character's not there.

 

293

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If it's a dispute about me, there's everyone saying what Greg would have wanted,

 

294

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what Greg would have wanted, but I'm not there.

 

295

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And so it's just layer on layer of hearsay. So yeah, very, very challenging, very tough.

 

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And the more direction and the more communication you can have whenever,

 

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as early as possible, but certainly towards an end of life situation,

 

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the more pragmatic you can be about what will happen.

 

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I'm not going to live forever, so what will happen next year when I'm no longer around.

 

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These are the things that are important to me. These are my expectations.

 

301

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And I know the two of you don't get on, so let's sort it out now.

 

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You know, the more discussion you can have, the better.

 

303

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And then you back that up with some really solid documents that give authorities

 

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that can't be countermanded.

 

305

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And you're not relying on an archaic formula of next of kin that was designed,

 

306

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you know, a hundred years ago.

 

307

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And that's bringing me to my next point and you know how early should we be

 

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planning for this what at what age should we be riding a wheel.

 

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Oh, I'm a will writer. So you should write a will as early as possible and you

 

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should update it every year.

 

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No, I think, look, I think it's about, I mean, it makes sense to have a will.

 

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A lot of people think they don't need one.

 

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If you don't have a will, there's a formula, an intestacy formula,

 

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but nobody has any authority to do anything for you until a court orders it.

 

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Whereas if you have a will, the will speaks from the date of death.

 

316

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It comes alive, it appoints an executive and it starts organizing things.

 

317

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So even if you've got a very basic will, for adults that don't have family,

 

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that don't have a partner and children, just a will that says,

 

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I appoint my parents as my executors and my beneficiaries, or I give everything to charity, whatever.

 

320

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A very basic will. There should be something in place, I think.

 

321

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And then you'd look at reviewing it and updating it. Anytime there's a significant

 

322

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life event, like a marriage, a marriage revokes a will anyway.

 

323

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So So, like a marriage, a separation or a divorce, birth of a child.

 

324

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An increase in wealth, an increase in complexity of financial position, anything like that.

 

325

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And, you know, we keep it simple, keep it as simple as possible.

 

326

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But, you know, sometimes, Catherine, it seems like there's no such thing as

 

327

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a simple will anymore because everyone's financial position is so complex.

 

328

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So many people have self-managed super and they've got a trust over here and

 

329

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they've got a business over there and they've got assets. They went to,

 

330

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you know, the UK and they went halves in a property, investment property over

 

331

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there. They've got some shares on the US stock market, whatever.

 

332

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And so the financial position is complex, but also family dynamics.

 

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You mentioned before blended families. That's just one type of dynamic.

 

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Family dynamics are getting really complicated, as is parenthood.

 

335

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You know, you can be a parent now. You can be a sole mother and be a parent

 

336

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through IVF. You can adopt.

 

337

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You can foster. You can have blended families. You can have stepkids, adopted kids.

 

338

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So there is such a complex definition of family and such a complex manner in

 

339

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how we hold our finances.

 

340

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It's never too early to start. And you'll find if you do start very basic,

 

341

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you'll gradually get a little bit more complex.

 

342

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episode:

And then if you live long enough, you'll go back to basic again.

 

343

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As things wind down. There's two ways that I can go with this.

 

344

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So probably the first one is the complexities you were talking about,

 

345

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about mothers that are single mothers now that can have IVF and have children

 

346

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episode:

themselves without being partnered.

 

347

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What about queer people? Is

 

348

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there any specific things that they need to be taking into consideration?

 

349

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episode:

So yes and no, there's a lawyer's answer.

 

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So it's a good idea to, so the law does recognize same-sex relationships.

 

351

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It recognizes marriages.

 

352

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It recognizes non-marriages. It recognizes interdependency relationships.

 

353

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It recognizes the whole gamut. What I'd suggest is, and this wouldn't be exclusive

 

354

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for queer people, but for anybody that is in a relationship,

 

355

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they might be a queer or a straight or a gay or whatever couple,

 

356

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living together, not living together, with a house each, dividing their time

 

357

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between them, whatever their situation is,

 

358

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go and get some advice about your situation and then draft succession documents accordingly.

 

359

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There are fallback positions, you know, in a relationship. Spouses have certain

 

360

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rights and certainly same-sex relationships are recognized,

 

361

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but there are some marriages out there where people have separated that wouldn't

 

362

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be recognized as a marriage for superannuation purposes,

 

363

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for instance, and there are other situations where two people that aren't in

 

364

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a sexual relationship but are living together would be recognized as a relationship

 

365

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for superannuation purposes.

 

366

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So, it really is case by case. It's partly gender-based.

 

367

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It's partly sexuality-based. It's partly, you know, reputational-based,

 

368

00:25:10,154 --> 00:25:11,734

episode:

the commitment that you've got.

 

369

00:25:11,834 --> 00:25:15,614

episode:

And you could have two friends who, you know, absolutely adore each other and

 

370

00:25:15,614 --> 00:25:19,094

episode:

are life partners but have no physical relationship because of a particular

 

371

00:25:19,094 --> 00:25:22,454

episode:

reason, could still be regarded as a couple for succession law.

 

372

00:25:22,594 --> 00:25:25,854

episode:

So really, really bespoke. And the best thing to do is...

 

373

00:25:26,177 --> 00:25:31,417

episode:

Yeah, if you, well, I think all of us to make sure when you go and see a lawyer,

 

374

00:25:31,557 --> 00:25:33,257

episode:

you give them warts and all the situation.

 

375

00:25:33,597 --> 00:25:37,217

episode:

This is what we do. This is what we don't do. This is how we live our life because

 

376

00:25:37,217 --> 00:25:39,117

episode:

things get really complex.

 

377

00:25:39,257 --> 00:25:41,857

episode:

I think it's based on a real life situation.

 

378

00:25:42,137 --> 00:25:46,857

episode:

I heard a story about a household where there were, I think there were two or

 

379

00:25:46,857 --> 00:25:50,277

episode:

three couples and they had this really complex roster of who was sleeping with

 

380

00:25:50,277 --> 00:25:52,877

episode:

who, when, and the situation, the question was

 

381

00:25:52,977 --> 00:25:56,217

episode:

who's in a relationship and who's not and it

 

382

00:25:56,217 --> 00:25:59,077

episode:

really it took three lawyers to sort of sit down and unwind that

 

383

00:25:59,077 --> 00:26:02,057

episode:

and go okay well we've got to make some judgment calls about

 

384

00:26:02,057 --> 00:26:04,957

episode:

about this and to see where and they adopted a collaborative approach

 

385

00:26:04,957 --> 00:26:07,657

episode:

in the end about what would happen if one of them passed away and so on

 

386

00:26:07,657 --> 00:26:11,937

episode:

and so forth but and it's not a value judgment about any of that it's like whatever

 

387

00:26:11,937 --> 00:26:18,617

episode:

whatever dynamic people are in the law can accommodate provided you're up front

 

388

00:26:18,617 --> 00:26:23,717

episode:

about it and you set out what the parameters are and you then prepare documents

 

389

00:26:23,717 --> 00:26:25,177

episode:

and make decisions accordingly.

 

390

00:26:25,577 --> 00:26:28,617

episode:

I mean, they're in the vast minority, but they do exist.

 

391

00:26:28,777 --> 00:26:34,017

episode:

And I think as time goes on, more blended families, more or probably less traditional

 

392

00:26:34,017 --> 00:26:35,037

episode:

marriages, aren't there?

 

393

00:26:35,077 --> 00:26:37,537

episode:

There's less traditional mums and dads and kids out there.

 

394

00:26:37,717 --> 00:26:40,617

episode:

Just a lot of marriages don't seem to last the distance.

 

395

00:26:40,837 --> 00:26:43,657

episode:

And there are a lot of blended families, a lot.

 

396

00:26:44,657 --> 00:26:53,817

episode:

Yeah. The once, you know, nuclear family with the 2.5 children is not the norm anymore. No, no.

 

397

00:26:55,077 --> 00:27:01,097

episode:

Now, the other way in which I was going to take this was online wheels.

 

398

00:27:02,057 --> 00:27:05,557

episode:

Are they safe to use? Well, they can be.

 

399

00:27:05,677 --> 00:27:11,297

episode:

I never recommend them though because, again, it's like a one-size-fits-all

 

400

00:27:11,297 --> 00:27:14,317

episode:

and even though you might end up.

 

401

00:27:14,960 --> 00:27:19,240

episode:

Back at a one-size-fits-all. I've got documents that, you know,

 

402

00:27:19,360 --> 00:27:25,660

episode:

within a range of variation are sort of template documents that I use three

 

403

00:27:25,660 --> 00:27:26,520

episode:

or four different types.

 

404

00:27:26,660 --> 00:27:32,320

episode:

And quite often where I start with a client and where I end up is not too far from where I start.

 

405

00:27:32,500 --> 00:27:35,680

episode:

So, there's a long journey to get back to where we started or near to it,

 

406

00:27:35,720 --> 00:27:37,200

episode:

but there still is a process.

 

407

00:27:37,400 --> 00:27:41,420

episode:

And what the online process does is it ignores that process.

 

408

00:27:41,520 --> 00:27:45,680

episode:

It gives you a document that's the final document and you fill in the blanks

 

409

00:27:45,680 --> 00:27:47,860

episode:

and that's it, one size fits all.

 

410

00:27:47,980 --> 00:27:51,460

episode:

It doesn't take into account things like blended families.

 

411

00:27:51,660 --> 00:27:53,760

episode:

There'll be a definition of I give to my children.

 

412

00:27:54,020 --> 00:27:57,640

episode:

And you've got to think about, well, I want my children and my stepchildren,

 

413

00:27:57,700 --> 00:28:00,620

episode:

but then what does that word mean? What does stepchildren mean in your context?

 

414

00:28:00,840 --> 00:28:03,920

episode:

If you've got a partner who's got children and stepchildren,

 

415

00:28:04,020 --> 00:28:06,040

episode:

are the steps of the steps stepchildren?

 

416

00:28:06,220 --> 00:28:10,080

episode:

And I'm not trying to be silly about that, but you do need to think very clearly about

 

417

00:28:10,180 --> 00:28:13,120

episode:

your situation yeah and so quite often the

 

418

00:28:13,120 --> 00:28:16,320

episode:

powers of attorney and the wills and the those sort

 

419

00:28:16,320 --> 00:28:19,340

episode:

of documents that get drafted as a result of an online process

 

420

00:28:19,340 --> 00:28:25,940

episode:

are not drafted all that well and I would say a fairly large proportion of the

 

421

00:28:25,940 --> 00:28:31,940

episode:

the estate claims that I've been involved in in the last 15 years have involved

 

422

00:28:31,940 --> 00:28:37,980

episode:

homemade or an online will and the one of the arguments has been about what does the will mean?

 

423

00:28:38,560 --> 00:28:42,400

episode:

What did the testator intend? What did the willmaker intend when they said,

 

424

00:28:42,420 --> 00:28:43,520

episode:

I give to all my children?

 

425

00:28:43,740 --> 00:28:47,540

episode:

Because in this paragraph, they've referred to children, including stepchildren.

 

426

00:28:47,600 --> 00:28:50,960

episode:

But in this paragraph, they've referred to children, just gender.

 

427

00:28:51,060 --> 00:28:53,400

episode:

Does it include the stepchildren as well or not?

 

428

00:28:53,640 --> 00:28:56,080

episode:

And we're talking about big money sometimes.

 

429

00:28:56,480 --> 00:29:03,140

episode:

So, yeah, if you're smart enough to be able to take an online will and look

 

430

00:29:03,140 --> 00:29:07,740

episode:

at all all the things that should be in it and fix them all before you sign

 

431

00:29:07,740 --> 00:29:11,300

episode:

it, you probably don't need the online will. So I think it's pretty dangerous to use an online will.

 

432

00:29:13,340 --> 00:29:17,700

episode:

Okay, that's good advice. And I'm assuming that would also go for your,

 

433

00:29:17,840 --> 00:29:24,500

episode:

you know, ones that you can pick up at a post office or along that line as well.

 

434

00:29:24,740 --> 00:29:27,920

episode:

Yeah, same for the thing. Yeah, I mean, look, they fill a need but really it's

 

435

00:29:27,920 --> 00:29:33,040

episode:

not that expensive to sit down with a solicitor for an hour or two and to get a bespoke document.

 

436

00:29:33,340 --> 00:29:35,640

episode:

If you're averse to that, then yeah, just do the best you can,

 

437

00:29:35,760 --> 00:29:39,780

episode:

but just be aware that it's an important document and it'll be read by someone

 

438

00:29:39,780 --> 00:29:43,040

episode:

other than you and interpreted by someone other than you after you're gone.

 

439

00:29:43,140 --> 00:29:44,680

episode:

So you won't be there to clarify what it means.

 

440

00:29:46,190 --> 00:29:51,510

episode:

And what sort of price are we talking about for a will, would you say?

 

441

00:29:52,090 --> 00:29:57,170

episode:

Yeah, so it varies. I mean, I think that you generally, if you're off to do

 

442

00:29:57,170 --> 00:30:00,630

episode:

a will, you're usually doing wills and powers of attorney and having a look

 

443

00:30:00,630 --> 00:30:01,410

episode:

at your superannuation.

 

444

00:30:01,590 --> 00:30:03,390

episode:

And you can spend anywhere from

 

445

00:30:03,390 --> 00:30:08,490

episode:

a few hundred to less than $1,000 to get something fairly simple done.

 

446

00:30:08,650 --> 00:30:13,350

episode:

And you can spend anywhere north of $3,000 or $4,000 if you're wanting testamentary

 

447

00:30:13,350 --> 00:30:16,230

episode:

trusts and, you know, due diligences and all those sort of things done.

 

448

00:30:16,390 --> 00:30:22,410

episode:

I think generally, I tend to have a wide range of clients and we probably range

 

449

00:30:22,410 --> 00:30:24,070

episode:

from somewhere a bit less than.

 

450

00:30:24,710 --> 00:30:31,790

episode:

$1,000 for a single to maybe $1,500 for a couple, somewhere in that range at a fairly,

 

451

00:30:31,950 --> 00:30:36,530

episode:

you know, comprehensive but not too complicated level to about,

 

452

00:30:36,630 --> 00:30:40,170

episode:

yeah, $5,000 or $6,000 where where there are trusts and businesses and things like that.

 

453

00:30:40,470 --> 00:30:45,430

episode:

And then what happens is the wills, the processes that are in place,

 

454

00:30:45,590 --> 00:30:49,670

episode:

more and more, Catherine, we're having family meetings at the end of the process.

 

455

00:30:49,750 --> 00:30:54,270

episode:

So after the documents have been discussed, formulated, executed,

 

456

00:30:54,670 --> 00:30:57,770

episode:

we then sit down with the kids, whether it's a blended family or not,

 

457

00:30:57,870 --> 00:31:01,470

episode:

and go through, okay, this is what's going to happen if and when mum and dad die.

 

458

00:31:01,670 --> 00:31:05,510

episode:

This is where things are. These are the testamentary trusts. This is how it works.

 

459

00:31:05,650 --> 00:31:08,030

episode:

This is the decisions that have been made, yada, yada, yada.

 

460

00:31:08,130 --> 00:31:09,890

episode:

And then has anyone got queries?

 

461

00:31:09,950 --> 00:31:12,510

episode:

And sometimes there are legitimate queries like, well, so yes,

 

462

00:31:12,570 --> 00:31:14,430

episode:

so how would we value things?

 

463

00:31:14,570 --> 00:31:17,850

episode:

Or what about this? What about that? But what I find it does more than anything

 

464

00:31:17,850 --> 00:31:22,850

episode:

else is it takes something that was something we never spoke about and it turns

 

465

00:31:22,850 --> 00:31:29,170

episode:

it into something that we're okay talking about for half an hour every two or three years.

 

466

00:31:29,822 --> 00:31:32,582

episode:

And it's a bit of a signpost from one to

 

467

00:31:32,582 --> 00:31:35,342

episode:

the other and it means that and the feedback I get is those

 

468

00:31:35,342 --> 00:31:38,762

episode:

meetings are really really beneficial and

 

469

00:31:38,762 --> 00:31:42,622

episode:

mainly from the will makers the will makers usually shake my hand very firmly

 

470

00:31:42,622 --> 00:31:45,742

episode:

and so that that was a really really good I'm very comfortable now that you

 

471

00:31:45,742 --> 00:31:48,302

episode:

know we had some decision points we weren't sure about the business we weren't

 

472

00:31:48,302 --> 00:31:51,742

episode:

sure about this and we know that Michael has a bee in his bonnet because I gave

 

473

00:31:51,742 --> 00:31:55,662

episode:

Gavin some money when I and to just sort of clear the air and to communicate

 

474

00:31:55,662 --> 00:31:58,002

episode:

mum and dad love you both and And they're trying to be fair,

 

475

00:31:58,122 --> 00:32:01,602

episode:

but being fair when there are lumpy assets, properties and business,

 

476

00:32:01,682 --> 00:32:03,742

episode:

it's really hard, but we're doing the best we can.

 

477

00:32:03,942 --> 00:32:07,922

episode:

And it really reinforces that idea that there's no rule book with parenthood

 

478

00:32:07,922 --> 00:32:13,242

episode:

and there's no rule book with will making and sometimes, and unless you liquidate

 

479

00:32:13,242 --> 00:32:17,942

episode:

everything and divide it all like a cake, there are going to be differences.

 

480

00:32:18,182 --> 00:32:22,922

episode:

And provided the purpose and the reason for those differences has been ventilated,

 

481

00:32:22,942 --> 00:32:27,062

episode:

not not in hospital and not at the funeral and not after death,

 

482

00:32:27,102 --> 00:32:29,962

episode:

provided they've been ventilated in a collaborative,

 

483

00:32:30,962 --> 00:32:35,482

episode:

conducive environment, most people have nothing else to be upset about.

 

484

00:32:35,642 --> 00:32:38,942

episode:

And I think that moving forward I'm going to hopefully have a lot less litigation

 

485

00:32:38,942 --> 00:32:41,222

episode:

than I have in the past because of these sort of processes.

 

486

00:32:44,382 --> 00:32:48,202

episode:

Let's hope. Let's hope you can be put out of work, Greg. Yeah,

 

487

00:32:48,202 --> 00:32:49,502

episode:

that's my objective, yeah.

 

488

00:32:51,182 --> 00:32:55,382

episode:

When you retire, though, how's that? I'm still happy to draft the wills,

 

489

00:32:55,382 --> 00:32:58,782

episode:

but yeah, we could close the litigation part of the practice, yeah.

 

490

00:32:59,874 --> 00:33:03,634

episode:

Yeah, that'd be nice, wouldn't it? And it's interesting for me,

 

491

00:33:03,754 --> 00:33:07,514

episode:

my father was a clerk of courts in the coroner's court.

 

492

00:33:07,674 --> 00:33:12,334

episode:

So, I always grew up with, you're 18, you have to have a will.

 

493

00:33:12,554 --> 00:33:18,474

episode:

And so, I found it really quite strange when I met my husband and he had no idea.

 

494

00:33:18,834 --> 00:33:21,534

episode:

And you're right. Anarchist. He's an anarchist. Yeah.

 

495

00:33:22,994 --> 00:33:26,374

episode:

And you're right. Having those conversations

 

496

00:33:26,374 --> 00:33:29,174

episode:

you know once you know

 

497

00:33:29,174 --> 00:33:32,194

episode:

a year and then you know it goes

 

498

00:33:32,194 --> 00:33:34,994

episode:

three four years and then you maybe something happens and

 

499

00:33:34,994 --> 00:33:38,194

episode:

you have a conversation again but it's amazing

 

500

00:33:38,194 --> 00:33:44,474

episode:

to know that you've got it covered and it's not really an issue any longer yeah

 

501

00:33:44,474 --> 00:33:49,594

episode:

it demystifies it a little bit it you know it i find it empowering ultimately

 

502

00:33:49,594 --> 00:33:56,874

episode:

to to have these discussions about mortality to recognize that it exists and it's part of life.

 

503

00:33:56,974 --> 00:34:01,934

episode:

Death is part of life and let's plan for it. Let's not welcome it with open

 

504

00:34:01,934 --> 00:34:03,294

episode:

arms, but let's plan for it.

 

505

00:34:03,394 --> 00:34:07,314

episode:

And people are generally a lot happier knowing that they've provided for their

 

506

00:34:07,314 --> 00:34:11,994

episode:

loved ones and knowing that they have taken some steps to promote,

 

507

00:34:12,074 --> 00:34:17,694

episode:

not insure, but to promote a dignified passing for themselves and that if they lose capacity,

 

508

00:34:18,014 --> 00:34:21,794

episode:

they'll be looked after and their finances will be also looked after.

 

509

00:34:21,934 --> 00:34:25,654

episode:

And most Most people find that an incredibly empowering position to be in as

 

510

00:34:25,654 --> 00:34:27,794

episode:

physically and mentally they're failing.

 

511

00:34:28,174 --> 00:34:32,434

episode:

If someone like me and someone like you through your guide can come along and

 

512

00:34:32,434 --> 00:34:36,814

episode:

say, well, everything's okay and this is what will need to be done now,

 

513

00:34:37,014 --> 00:34:41,334

episode:

it's very important, very empowering and it's not that hard to do if you just

 

514

00:34:41,334 --> 00:34:46,194

episode:

set aside a bit of time every couple of years to put it in place initially and

 

515

00:34:46,194 --> 00:34:47,374

episode:

then to tweak it and update it.

 

516

00:34:49,227 --> 00:34:55,907

episode:

Very true. Now, what happens, I know you've mentioned it briefly before,

 

517

00:34:56,247 --> 00:34:58,907

episode:

but I just want to make sure it's cut off.

 

518

00:34:59,047 --> 00:35:04,267

episode:

What does happen if you die without help? Well, what doesn't happen is that

 

519

00:35:04,267 --> 00:35:05,267

episode:

the government gets everything.

 

520

00:35:05,407 --> 00:35:08,727

episode:

So my area is an area where there's lots of urban myths, you know,

 

521

00:35:08,727 --> 00:35:12,007

episode:

and so the government doesn't suddenly, you know, rub its hands together and

 

522

00:35:12,007 --> 00:35:12,927

episode:

say, great, we've got everything.

 

523

00:35:13,047 --> 00:35:18,047

episode:

What happens is that your nearest next of kin becomes the person responsible

 

524

00:35:18,047 --> 00:35:19,367

episode:

to administer your estate.

 

525

00:35:19,627 --> 00:35:24,567

episode:

And that usually coincides with the person who has the greatest interest in

 

526

00:35:24,567 --> 00:35:25,387

episode:

your estate financially.

 

527

00:35:25,727 --> 00:35:29,107

episode:

The theory being that people look after their own money better than anybody else.

 

528

00:35:29,287 --> 00:35:34,227

episode:

And so if you've got a partner, it's usually the partner that would be entitled

 

529

00:35:34,227 --> 00:35:37,587

episode:

to be the equivalent of the executor to administer your estate.

 

530

00:35:37,867 --> 00:35:41,707

episode:

If you've got no partner, but you've got children, it'll be the oldest child

 

531

00:35:41,707 --> 00:35:45,387

episode:

and then down the line. And if you've got no partner and children, it'll be your parents.

 

532

00:35:45,547 --> 00:35:48,007

episode:

So that's the who does the administration.

 

533

00:35:48,547 --> 00:35:53,287

episode:

And as to what happens to the estate, there's a formula and it depends on when

 

534

00:35:53,287 --> 00:35:56,687

episode:

you die and it changes from time to time. But currently, and it changes from state to state.

 

535

00:35:56,887 --> 00:36:01,647

episode:

Currently in Victoria, where I mainly practice, if you have a partner and you

 

536

00:36:01,647 --> 00:36:07,367

episode:

die without a will, the partner gets the first X dollars. It's called the partner's amount.

 

537

00:36:07,527 --> 00:36:10,587

episode:

It's about half a million dollars and it's indexed in today's money.

 

538

00:36:10,807 --> 00:36:14,707

episode:

And then after that, if you've only got children with the partner,

 

539

00:36:14,847 --> 00:36:19,187

episode:

then the partner gets half of what's left and the children get half of what's

 

540

00:36:19,187 --> 00:36:20,407

episode:

left. So the partner doesn't get everything.

 

541

00:36:20,767 --> 00:36:23,687

episode:

I know, sorry, if you've got a partner in Victoria at the moment,

 

542

00:36:23,707 --> 00:36:26,147

episode:

if you've got a partner and only children with the partner, the partner gets everything.

 

543

00:36:26,327 --> 00:36:30,387

episode:

If you've got a partner and you've got children, maybe with the partner,

 

544

00:36:30,447 --> 00:36:33,147

episode:

but also children independent of the partner,

 

545

00:36:33,447 --> 00:36:38,987

episode:

then the partner gets his or her amount and a half, and all the children share

 

546

00:36:38,987 --> 00:36:41,327

episode:

the other half of what's left.

 

547

00:36:41,447 --> 00:36:44,487

episode:

And then it gets more complex from there. There's provision in the legislation

 

548

00:36:44,487 --> 00:36:48,607

episode:

for multiple partners, because you might have a husband and you might have a

 

549

00:36:48,607 --> 00:36:49,987

episode:

girlfriend or a boyfriend.

 

550

00:36:50,127 --> 00:36:52,567

episode:

You know, they might have multiple partners that you might have not divorced

 

551

00:36:52,567 --> 00:36:54,827

episode:

the one partner before you've hooked up with another.

 

552

00:36:55,007 --> 00:36:57,527

episode:

So it's very messy, but there is a process.

 

553

00:36:57,787 --> 00:37:01,947

episode:

It's pretty fair. You know, if you die and you've got no partner and no kids,

 

554

00:37:01,967 --> 00:37:05,327

episode:

straight to your parents equally. If they've separated, 50-50, right?

 

555

00:37:05,447 --> 00:37:08,067

episode:

If your parents have passed away, goes to your siblings.

 

556

00:37:08,207 --> 00:37:11,227

episode:

And if any of your siblings have passed away, usually goes down the bloodline.

 

557

00:37:11,387 --> 00:37:16,107

episode:

The intestacy formula, apart from your partner, only follows the blood though.

 

558

00:37:16,167 --> 00:37:17,347

episode:

So it doesn't recognize steps.

 

559

00:37:17,727 --> 00:37:22,407

episode:

So that's a big change. So blended families are in trouble when it comes to intestacy.

 

560

00:37:24,838 --> 00:37:27,578

episode:

Oh, that's really good to know. It doesn't go to the government, okay?

 

561

00:37:27,698 --> 00:37:33,178

episode:

So that's one takeaway point from this session that your viewers can take is it does not go.

 

562

00:37:33,298 --> 00:37:38,918

episode:

It goes to the government. If your family tree is so sparse that you've got

 

563

00:37:38,918 --> 00:37:42,598

episode:

no one that they can identify to about, I think it's three or four degrees.

 

564

00:37:42,698 --> 00:37:46,518

episode:

You know, if you start a person, you go up, you know, like to a grandparent and back down.

 

565

00:37:46,758 --> 00:37:50,578

episode:

If after about five or six, I think it is connections. If there's nobody,

 

566

00:37:50,898 --> 00:37:53,178

episode:

then it goes to the government, like unclaimed monies.

 

567

00:37:54,838 --> 00:38:00,978

episode:

Oh, that's very good to clarify. Now, with children, if there's not been around

 

568

00:38:00,978 --> 00:38:06,158

episode:

to care for them when you do die or become incapacitated, what happens in that scenario?

 

569

00:38:06,838 --> 00:38:10,578

episode:

So, there are courts in each jurisdiction and tribunals.

 

570

00:38:10,678 --> 00:38:15,098

episode:

So, depending upon what would normally happen is a well-meaning relative would

 

571

00:38:15,098 --> 00:38:19,378

episode:

normally make an application to be appointed as guardian of the child to look

 

572

00:38:19,378 --> 00:38:20,558

episode:

after them until they're 18.

 

573

00:38:20,838 --> 00:38:25,758

episode:

And in that regard, the court or tribunal would be guided by any appointment,

 

574

00:38:25,978 --> 00:38:29,778

episode:

appointment you'd made in your will, because you can't actually appoint a guardian in your will.

 

575

00:38:29,838 --> 00:38:33,218

episode:

What you can do is you can say, I would like, I could say I'd like Catherine

 

576

00:38:33,218 --> 00:38:37,198

episode:

to look after my son if both my wife and I pass away.

 

577

00:38:37,398 --> 00:38:42,138

episode:

And that is an expression of a desire from me that I reckon she'd be a fantastic guardian.

 

578

00:38:42,278 --> 00:38:47,058

episode:

But if between me making the appointment, you become an unsuitable person,

 

579

00:38:47,138 --> 00:38:49,898

episode:

you know, you become depressed, you become come unwell, anything like that,

 

580

00:38:49,918 --> 00:38:54,758

episode:

or you pass away, the court can always step in and appoint someone it believes is more appropriate.

 

581

00:38:54,938 --> 00:38:57,978

episode:

But you've got some say into what happens, but not a lot.

 

582

00:38:59,758 --> 00:39:06,598

episode:

Okay, that's great. That's fantastic. Now, probate, the word that you hear,

 

583

00:39:06,618 --> 00:39:10,218

episode:

but you really don't know about. What is it?

 

584

00:39:11,278 --> 00:39:16,798

episode:

I think the best way of thinking about probate is, so we can all drive a car.

 

585

00:39:18,259 --> 00:39:21,259

episode:

Well, most of us can drive a car. We have the skill set, but you need a license

 

586

00:39:21,259 --> 00:39:22,459

episode:

to be able to drive a car legally.

 

587

00:39:22,819 --> 00:39:27,339

episode:

And so if I'm an executor appointed by will, I can go and do stuff.

 

588

00:39:27,399 --> 00:39:32,499

episode:

But in order for what I do to be legally recognized, you have to obtain probate.

 

589

00:39:32,799 --> 00:39:39,439

episode:

Otherwise, the law, the Supreme Court won't recognize you as the executor. And that's fine.

 

590

00:39:39,559 --> 00:39:42,699

episode:

Quite often, you don't need to get probate. You only need to get probate if

 

591

00:39:42,699 --> 00:39:44,399

episode:

for some reason you need to to be recognised.

 

592

00:39:44,699 --> 00:39:49,659

episode:

So, any time where someone dies in this real estate, you need probate because

 

593

00:39:49,659 --> 00:39:53,159

episode:

the land titles office in the state won't process a transfer from a deceased

 

594

00:39:53,159 --> 00:39:55,779

episode:

person to a beneficiary without probate.

 

595

00:39:55,879 --> 00:40:01,279

episode:

And really, to look at it pragmatically, probate is basically a registrar in

 

596

00:40:01,279 --> 00:40:06,919

episode:

the Supreme Court looking for any reason to find a problem with the will and the deceased.

 

597

00:40:07,119 --> 00:40:11,479

episode:

Is the name on the death certificate different to the will? Are there issues with capacity?

 

598

00:40:11,799 --> 00:40:15,779

episode:

Is the will, is the signature shaky? Do we have any, if there's any problems whatsoever?

 

599

00:40:16,099 --> 00:40:20,319

episode:

And if they can't find a problem with the will, they will grant probate.

 

600

00:40:20,419 --> 00:40:24,079

episode:

And so, it's almost like an insurance policy then that once probate's been granted,

 

601

00:40:24,339 --> 00:40:27,159

episode:

it's the Supreme Court in the state saying, you know what?

 

602

00:40:27,499 --> 00:40:30,299

episode:

Everything's fine with this estate. So, if you were my executor,

 

603

00:40:30,319 --> 00:40:34,159

episode:

Catherine, and I passed away and you had probate, the Supreme Court's telling

 

604

00:40:34,159 --> 00:40:38,059

episode:

the world, we authorize Catherine to administer Greg's estate.

 

605

00:40:38,299 --> 00:40:39,499

episode:

We've checked it. It's all okay.

 

606

00:40:39,779 --> 00:40:42,019

episode:

And then land titles office are happy.

 

607

00:40:42,559 --> 00:40:45,779

episode:

Banks are happy. Share registries are happy.

 

608

00:40:46,019 --> 00:40:50,139

episode:

Sometimes you can get money out of a bank without probate if you sign an indemnity.

 

609

00:40:50,299 --> 00:40:55,879

episode:

It costs X dollars to get probate and we want the bank to dispense with us having to do that.

 

610

00:40:56,199 --> 00:41:01,239

episode:

And probate can be expensive. It's somewhere from a couple of thousand dollars

 

611

00:41:01,239 --> 00:41:04,639

episode:

to some tens of thousands of dollars depending upon what's in the estate.

 

612

00:41:04,639 --> 00:41:09,719

episode:

And there's a fee you have to pay to the Supreme Court like a filing fee and

 

613

00:41:09,719 --> 00:41:14,579

episode:

they're set to increase in Victoria in December and other states may follow suit.

 

614

00:41:14,719 --> 00:41:20,739

episode:

So, it can be expensive to get probate and it can be expensive to go through that process.

 

615

00:41:21,944 --> 00:41:28,484

episode:

Okay. And in my scenario, or the scenario we found ourselves in last year,

 

616

00:41:28,604 --> 00:41:33,284

episode:

was that Roland's family had come over from the States.

 

617

00:41:33,884 --> 00:41:37,844

episode:

He had very little money in his bank account. He had no real estate.

 

618

00:41:38,184 --> 00:41:41,044

episode:

And when we rang the probate office,

 

619

00:41:41,184 --> 00:41:45,884

episode:

they said it would be, whether we needed to go through the grant of probate,

 

620

00:41:45,984 --> 00:41:48,264

episode:

they said it would be deemed whether

 

621

00:41:48,264 --> 00:41:53,324

episode:

the bank would require it or his superannuation fund would require it.

 

622

00:41:53,684 --> 00:41:59,564

episode:

So we've had to ring those particular organisations and see what their requirements were.

 

623

00:41:59,824 --> 00:42:04,044

episode:

And fortunately, the kids could get access to the money and what they needed

 

624

00:42:04,044 --> 00:42:06,084

episode:

to before having to go to probate.

 

625

00:42:06,904 --> 00:42:10,024

episode:

Yeah, and that's a really good example. Sometimes banks will say,

 

626

00:42:10,144 --> 00:42:11,724

episode:

we don't need you to get probate.

 

627

00:42:11,864 --> 00:42:15,364

episode:

There are other reasons why you might want to get probate. If you have to deal

 

628

00:42:15,364 --> 00:42:18,704

episode:

with the tax office, you generally have to get probate because they won't recognise

 

629

00:42:18,704 --> 00:42:22,664

episode:

anyone one that's not formally probated as the executor.

 

630

00:42:22,864 --> 00:42:25,764

episode:

There are some claims that can be made in different jurisdictions.

 

631

00:42:26,484 --> 00:42:30,864

episode:

Challenges can be brought against an estate. Sometimes those claims are tied

 

632

00:42:30,864 --> 00:42:35,644

episode:

in with a period of time that elapses after probate.

 

633

00:42:35,744 --> 00:42:39,164

episode:

So if you get probate on the 1st of July and it's six months,

 

634

00:42:39,224 --> 00:42:42,584

episode:

then after six months from the 1st of July, no one can bring a claim.

 

635

00:42:42,724 --> 00:42:46,504

episode:

So getting probate sometimes starts a clock ticking that you might want the

 

636

00:42:46,504 --> 00:42:48,484

episode:

clock to tick and it to come to an end.

 

637

00:42:48,584 --> 00:42:52,424

episode:

If you don't get probate, there's always the risk that a claim could be brought in the future.

 

638

00:42:52,524 --> 00:42:56,084

episode:

So there are some tactical reasons why you might and might not get probate.

 

639

00:42:56,184 --> 00:42:58,384

episode:

The only reason you might not get it is because of the cost.

 

640

00:42:58,724 --> 00:43:01,424

episode:

But there are reasons why you might get it because you have to,

 

641

00:43:01,464 --> 00:43:05,924

episode:

to satisfy banks and land titles office or the end users, or for another sort

 

642

00:43:05,924 --> 00:43:08,364

episode:

of tactical reason that the solicitor comes up with.

 

643

00:43:10,180 --> 00:43:17,360

episode:

Okay, that's great. Thanks for that, Greg. Now, I think we have mentioned scenarios

 

644

00:43:17,360 --> 00:43:20,080

episode:

where it's best to use a lawyer.

 

645

00:43:20,600 --> 00:43:23,520

episode:

Let's cover off on how's the best way to find one.

 

646

00:43:24,040 --> 00:43:29,200

episode:

Yep. So, the area that I do is one of those sort of bread and butter,

 

647

00:43:29,300 --> 00:43:31,680

episode:

or has been one of those bread and butter areas probably until recently.

 

648

00:43:31,780 --> 00:43:33,700

episode:

So, until recently, most lawyers

 

649

00:43:33,700 --> 00:43:37,840

episode:

could do a will, could transfer a property, could do a simple lease.

 

650

00:43:38,620 --> 00:43:42,300

episode:

Leasing's got really complex in each state as has conveyancing and it's all

 

651

00:43:42,300 --> 00:43:43,860

episode:

online and you've got to be registered now.

 

652

00:43:44,260 --> 00:43:48,720

episode:

And my area is lagging a bit. So, if you've got a simple will to do,

 

653

00:43:48,820 --> 00:43:52,700

episode:

if you've got a simple estate to administer, you'll find most lawyers will say

 

654

00:43:52,700 --> 00:43:53,720

episode:

that they're able to do it.

 

655

00:43:53,760 --> 00:43:56,880

episode:

And if it's a simple estate, most lawyers will be able to do it.

 

656

00:43:57,000 --> 00:44:02,440

episode:

If there's any degree of complexity, if there's a self-managed super fund, if there's a trust,

 

657

00:44:02,760 --> 00:44:07,260

episode:

if there's a homemade will or an online will, if there is anything apart from

 

658

00:44:07,260 --> 00:44:11,520

episode:

like a house and a bit of money in the bank, my recommendation would be to get

 

659

00:44:11,520 --> 00:44:16,740

episode:

in touch with one of the legal bodies, the legal institute bodies in the state.

 

660

00:44:16,800 --> 00:44:19,620

episode:

So, the Queensland Law Society, the Law Institute of Victoria,

 

661

00:44:19,980 --> 00:44:24,520

episode:

the New South Wales Law Society, and just ask for a list of their accredited

 

662

00:44:24,520 --> 00:44:26,760

episode:

specialists because most states in Australia

 

663

00:44:26,920 --> 00:44:31,360

episode:

have the ability for solicitors to choose to specialise in an area and to be

 

664

00:44:31,360 --> 00:44:33,520

episode:

recognised amongst their peers as a specialist.

 

665

00:44:33,760 --> 00:44:37,820

episode:

So, I'm a specialist in Victoria and Wilson Estates and there are other states

 

666

00:44:37,820 --> 00:44:39,000

episode:

have that specialisation.

 

667

00:44:39,300 --> 00:44:42,820

episode:

And if you've got anything that's out of the ordinary, my recommendation would

 

668

00:44:42,820 --> 00:44:45,280

episode:

be use a specialist because it's more cost effective,

 

669

00:44:45,460 --> 00:44:50,000

episode:

it's more time effective and we get to the issues straight away and we tend

 

670

00:44:50,000 --> 00:44:54,780

episode:

to, having seen a lot of it before, we can give you a sort of reassurance about

 

671

00:44:54,780 --> 00:44:58,520

episode:

how things are going to go and we can warn you about where the problems are going to be.

 

672

00:44:58,640 --> 00:45:02,500

episode:

So, yeah, get onto the referral list from one of the industry associations and

 

673

00:45:02,500 --> 00:45:04,020

episode:

ask for a specialist would be my recommendation.

 

674

00:45:06,200 --> 00:45:10,200

episode:

And what about Doyle's List? What's Doyle's List?

 

675

00:45:11,400 --> 00:45:18,000

episode:

Doyle's List is controversial. Doyle's List is a list that, and it's actually

 

676

00:45:18,000 --> 00:45:20,840

episode:

a very useful list. So there are some people that question its utility.

 

677

00:45:21,120 --> 00:45:27,440

episode:

So it's a list of peer-recognized specialists in particular fields.

 

678

00:45:27,600 --> 00:45:32,440

episode:

And I'm told, I've never been the recipient of a survey request,

 

679

00:45:32,600 --> 00:45:39,400

episode:

but I'm told that practitioners are randomly requested to nominate who they

 

680

00:45:39,400 --> 00:45:44,620

episode:

believe is a particular leading light in a particular area.

 

681

00:45:44,620 --> 00:45:48,760

episode:

Area, criminal law, family law, succession, you know, administration of estates,

 

682

00:45:48,780 --> 00:45:51,060

episode:

will-making, administrative law, whatever.

 

683

00:45:51,280 --> 00:45:57,800

episode:

And so, it's a law, it's a database that is apparently compiled through that database

 

684

00:45:58,169 --> 00:46:03,649

episode:

process of asking peers to nominate for no reward who they think are leading

 

685

00:46:03,649 --> 00:46:04,869

episode:

lights in particular areas.

 

686

00:46:05,049 --> 00:46:09,269

episode:

And if you jump onto Doyle's list, you'll be able to see in each state who the

 

687

00:46:09,269 --> 00:46:14,509

episode:

recommended solicitors and barristers in particular areas, including willmaking

 

688

00:46:14,509 --> 00:46:18,029

episode:

or estate planning and will disputes or estate disputes are.

 

689

00:46:18,149 --> 00:46:24,069

episode:

And yeah, I have a look at Doyle's. I'm involved on Doyle's and it's great to

 

690

00:46:24,069 --> 00:46:25,209

episode:

be recognized like that.

 

691

00:46:26,909 --> 00:46:30,709

episode:

It's just another one of those things that there are, I guess the more sources

 

692

00:46:30,709 --> 00:46:35,149

episode:

of information you get, it's a bit like if you only decided to use products

 

693

00:46:35,149 --> 00:46:39,469

episode:

or services based on Google reviews, you might be misinforming yourself.

 

694

00:46:39,729 --> 00:46:43,389

episode:

And I think if you only relied on Doyle's list, you might be misinforming yourself.

 

695

00:46:43,489 --> 00:46:47,129

episode:

But I think it's a really useful tool and certainly a good place as part of that process.

 

696

00:46:47,509 --> 00:46:51,389

episode:

But my advice also, Catherine, would be to not overthink it too much unless

 

697

00:46:51,389 --> 00:46:53,449

episode:

it's a super complex situation.

 

698

00:46:54,049 --> 00:46:59,409

episode:

If you're an executor and you've already got a solicitor, maybe ask that solicitor,

 

699

00:46:59,529 --> 00:47:02,709

episode:

can they assist you? And if they can't, can they recommend someone who can?

 

700

00:47:03,109 --> 00:47:06,849

episode:

If you're an executor and you don't have a solicitor, then I'd be saying,

 

701

00:47:06,869 --> 00:47:08,929

episode:

yeah, go to Doyle's, go to the Law Institute.

 

702

00:47:09,089 --> 00:47:12,749

episode:

And if you can get someone who's on both a referral list from one of the Law

 

703

00:47:12,749 --> 00:47:15,769

episode:

Institutes and on Doyle's, that's got to be a pretty high recommendation.

 

704

00:47:17,709 --> 00:47:19,209

episode:

That's fantastic. Thanks for

 

705

00:47:19,209 --> 00:47:24,909

episode:

that because a previous guest on the show had talked about Doyle's List.

 

706

00:47:24,989 --> 00:47:28,309

episode:

So I just wanted to get your opinion on that. That's great. Thank you.

 

707

00:47:28,429 --> 00:47:32,489

episode:

With being the role of the executor, what are the responsibilities?

 

708

00:47:33,609 --> 00:47:37,689

episode:

Yes. So the executor has two main responsibilities.

 

709

00:47:37,989 --> 00:47:43,229

episode:

The first relates to the body. They've got to arrange for the proper disposal

 

710

00:47:43,229 --> 00:47:44,509

episode:

of the body or the remains.

 

711

00:47:44,809 --> 00:47:49,009

episode:

So don't have to have a funeral, but it's the executor's right and obligation

 

712

00:47:49,009 --> 00:47:49,969

episode:

to organize the funeral.

 

713

00:47:51,589 --> 00:47:55,289

episode:

Clients that come to see me often very clear about what they want and what they

 

714

00:47:55,289 --> 00:47:57,309

episode:

don't want to occur in their funeral.

 

715

00:47:57,749 --> 00:48:02,389

episode:

And those requests, those desires are unenforceable.

 

716

00:48:02,449 --> 00:48:06,329

episode:

It's really up to the executor. So if you're choosing an executor,

 

717

00:48:06,369 --> 00:48:10,569

episode:

make sure the executor knows what you want, what your expectations are and ask

 

718

00:48:10,569 --> 00:48:11,549

episode:

them to fulfill fill those.

 

719

00:48:11,809 --> 00:48:14,829

episode:

It's their call. So, they have to do that. They've got to take responsibility

 

720

00:48:14,829 --> 00:48:19,889

episode:

for the remains and for disposing of the remains, whether they're cremated remains or whatever.

 

721

00:48:20,509 --> 00:48:25,549

episode:

The second set of responsibilities the executor has then are financial. So, it's about.

 

722

00:48:26,455 --> 00:48:29,595

episode:

Ending your social time on earth, I guess.

 

723

00:48:29,675 --> 00:48:36,455

episode:

It's memorializing all of your social media accounts, identifying all of your assets, securing them.

 

724

00:48:36,635 --> 00:48:40,015

episode:

If you've got a house, check with the insurance company, it's still insured.

 

725

00:48:40,135 --> 00:48:42,815

episode:

If you've got a car, make sure that it's insured.

 

726

00:48:43,135 --> 00:48:45,935

episode:

Securing it, make sure things are locked up, make sure the house is secured,

 

727

00:48:46,035 --> 00:48:48,255

episode:

make sure the car's locked up, things like that.

 

728

00:48:48,455 --> 00:48:52,435

episode:

And it's then once identifying the assets, identifying and paying the debts,

 

729

00:48:52,435 --> 00:48:57,995

episode:

and then using the will as a bit of a roadmap to determine who gets what and

 

730

00:48:57,995 --> 00:49:02,615

episode:

dividing the estate between the beneficiaries nominated in the will.

 

731

00:49:03,235 --> 00:49:10,355

episode:

Finalising things like Centrelink notifications, Medibank, Medicare notifications, all that sort of stuff.

 

732

00:49:10,455 --> 00:49:14,595

episode:

Notifying people that need to be notified, tax obligations, making sure that

 

733

00:49:14,595 --> 00:49:16,695

episode:

all the deceased tax affairs are up to date.

 

734

00:49:16,755 --> 00:49:20,555

episode:

If the estate earns some income, making sure the estate pays tax.

 

735

00:49:20,915 --> 00:49:25,995

episode:

Basically, it's It's putting everything in a bag, putting a knot in the top,

 

736

00:49:26,095 --> 00:49:33,295

episode:

and then making sure that it's disposed of and that your business on earth, financial,

 

737

00:49:33,655 --> 00:49:38,175

episode:

all of your chattels, all of your assets are distributed to your beneficiaries

 

738

00:49:38,175 --> 00:49:40,475

episode:

and there's nothing left of you. That's an executor's job.

 

739

00:49:42,315 --> 00:49:45,835

episode:

So just a few things you can do on a Sunday afternoon.

 

740

00:49:46,515 --> 00:49:53,375

episode:

Very onerous job. I'm an executor for a very few number of clients who insist

 

741

00:49:53,375 --> 00:49:57,315

episode:

and ask and don't have anyone else. It is a very onerous job.

 

742

00:49:57,495 --> 00:50:01,395

episode:

It's a privilege, of course, to be an executor. And in the distant future,

 

743

00:50:01,475 --> 00:50:03,275

episode:

I'll be my mum's executor with my siblings.

 

744

00:50:03,395 --> 00:50:05,795

episode:

But it's a big responsibility.

 

745

00:50:06,135 --> 00:50:10,775

episode:

And if you make a mistake, you're personally liable. If you make a mistake and

 

746

00:50:10,775 --> 00:50:13,435

episode:

there's money in the estate, you might be able to get reimbursed from the estate.

 

747

00:50:13,635 --> 00:50:16,315

episode:

But if you make an estate and there's not. So if you distribute everything and

 

748

00:50:16,315 --> 00:50:18,815

episode:

you miss a beneficiary, you've got to pay them out of your own pocket.

 

749

00:50:18,895 --> 00:50:20,355

episode:

So it's a big responsibility.

 

750

00:50:22,634 --> 00:50:27,654

episode:

Yeah, I think that's something that a lot of people aren't aware of, just how big a job it is.

 

751

00:50:27,974 --> 00:50:33,294

episode:

What sort of companies do you think makes a good executor that you've seen in your experience?

 

752

00:50:34,634 --> 00:50:38,734

episode:

Yeah, it's another really good question. I think the, and this is going to sound

 

753

00:50:38,734 --> 00:50:41,234

episode:

self-serving, but the ability to know what you don't know.

 

754

00:50:41,374 --> 00:50:44,954

episode:

So a good executor will get tax advice from an accountant.

 

755

00:50:45,134 --> 00:50:50,954

episode:

A good executor who has to administer an estate for two years while an estate

 

756

00:50:50,954 --> 00:50:54,974

episode:

claims is being dealt with will get financial advice about how to invest the

 

757

00:50:54,974 --> 00:50:56,834

episode:

funds in the meantime and the assets in the meantime.

 

758

00:50:57,194 --> 00:51:01,314

episode:

A good executive will get proper legal advice. So, it's the ability to recognize

 

759

00:51:01,314 --> 00:51:05,694

episode:

what they do and don't know and to source appropriate advice.

 

760

00:51:06,134 --> 00:51:09,734

episode:

And then the other thing is the ability to make decisions and judgment calls,

 

761

00:51:09,934 --> 00:51:12,614

episode:

you know, and you make those based on advice.

 

762

00:51:12,934 --> 00:51:17,454

episode:

But, you know, if a property has to be sold and it's being auctioned and the

 

763

00:51:17,454 --> 00:51:21,674

episode:

the reserve's a million dollars and it gets to $975,000, what do you do? Do you sell?

 

764

00:51:21,934 --> 00:51:25,174

episode:

Do you go back to the beneficiaries and get their consent? Or do you have it

 

765

00:51:25,174 --> 00:51:26,734

episode:

pass in and then go to private sale?

 

766

00:51:27,114 --> 00:51:29,934

episode:

And so, you've got to make judgment calls and not second guess yourself.

 

767

00:51:30,014 --> 00:51:31,694

episode:

You've got to make a decision and be able to move on.

 

768

00:51:31,834 --> 00:51:35,454

episode:

So, yeah, someone, if you were choosing an executive, it'd be usually someone

 

769

00:51:35,454 --> 00:51:40,934

episode:

who has a degree of familiarity with business matters and a degree of business

 

770

00:51:40,934 --> 00:51:47,194

episode:

acumen and someone who is going to use their head or is able to use their head

 

771

00:51:47,194 --> 00:51:50,434

episode:

independent of their heart from time to time,

 

772

00:51:50,454 --> 00:51:56,014

episode:

because it's about bringing objectivity into an environment which is generally pretty emotionally,

 

773

00:51:56,254 --> 00:51:59,054

episode:

you know, is an emotional environment.

 

774

00:51:59,174 --> 00:52:03,554

episode:

So someone who can be objective and pragmatic, make decisions and delegate would

 

775

00:52:03,554 --> 00:52:04,734

episode:

be the perfect executor.

 

776

00:52:06,495 --> 00:52:13,035

episode:

And would you say those qualities are something that should also be represented in a power of attorney?

 

777

00:52:14,415 --> 00:52:17,535

episode:

Yep, absolutely. A power of attorney is a slightly different role.

 

778

00:52:17,635 --> 00:52:20,975

episode:

So an executor's role starts, escalates, and then finishes.

 

779

00:52:21,115 --> 00:52:24,135

episode:

It might be three months, six months, 12 months, but it's a role.

 

780

00:52:24,435 --> 00:52:29,815

episode:

Once the body is dealt with, a state is dealt with, it's identified, it's a defined thing.

 

781

00:52:29,815 --> 00:52:32,935

episode:

An attorney so that's like

 

782

00:52:32,935 --> 00:52:35,935

episode:

an executive is like a 400 meter runner

 

783

00:52:35,935 --> 00:52:39,355

episode:

or an 800 meter runner whereas potentially an attorney

 

784

00:52:39,355 --> 00:52:42,175

episode:

has to be a marathon runner because they might have to just

 

785

00:52:42,175 --> 00:52:47,535

episode:

keep administering your estate for years you might lose capacity at age 75 and

 

786

00:52:47,535 --> 00:52:53,175

episode:

linger till 95 and they have to administer your estate on an ongoing basis so

 

787

00:52:53,175 --> 00:53:00,415

episode:

the an attorney's role is more so I think more important quality is to be able

 

788

00:53:00,415 --> 00:53:01,735

episode:

to be a bit schizophrenic,

 

789

00:53:01,735 --> 00:53:06,795

episode:

to be able to separate your finances and your interests from those of the person

 

790

00:53:06,795 --> 00:53:11,675

episode:

you're looking after and to have those two running in place for an indefinite

 

791

00:53:11,675 --> 00:53:14,075

episode:

period of time, which is quite different to an executor's role.

 

792

00:53:14,235 --> 00:53:16,475

episode:

The other qualities are all the same though, getting advice,

 

793

00:53:16,735 --> 00:53:20,835

episode:

being objective and making decisions, but you also then need the ability to

 

794

00:53:20,835 --> 00:53:26,395

episode:

be able to juggle two sets of accounts and make decisions for someone on an ongoing basis.

 

795

00:53:28,128 --> 00:53:34,308

episode:

And in your experience, is it better or worse to have the power of attorney

 

796

00:53:34,308 --> 00:53:36,368

episode:

and the executive in the same person?

 

797

00:53:37,288 --> 00:53:42,168

episode:

Makes sense to me. I recommend to my clients if there can be.

 

798

00:53:42,248 --> 00:53:45,728

episode:

So there are kind of three different things you have to think about while someone's

 

799

00:53:45,728 --> 00:53:47,068

episode:

alive. There's medical decisions.

 

800

00:53:47,388 --> 00:53:51,128

episode:

And that's, I reckon, the most important because, you know, the dignity in dying,

 

801

00:53:51,248 --> 00:53:57,608

episode:

having your last wishes about your physical life on earth being respected.

 

802

00:53:57,608 --> 00:54:02,368

episode:

It incredibly important and sometimes the hardest role to fulfill because it

 

803

00:54:02,368 --> 00:54:04,328

episode:

does require a certain personality.

 

804

00:54:04,728 --> 00:54:08,968

episode:

My mum asked me to do that for her and dad, what my parents did when he was

 

805

00:54:08,968 --> 00:54:13,388

episode:

alive, and I politely refused and said, I wouldn't be able to turn the machine off on your mum.

 

806

00:54:13,468 --> 00:54:17,228

episode:

I wouldn't be able to do it. My sister is a nurse and she's very pragmatic.

 

807

00:54:17,348 --> 00:54:19,368

episode:

She said, I'll do it. I know what mum wants and I'd hate it,

 

808

00:54:19,388 --> 00:54:22,108

episode:

but I'll do it. She was the right choice and I would have been the wrong choice.

 

809

00:54:22,388 --> 00:54:26,328

episode:

When it comes to personal matters, guardianship type matters,

 

810

00:54:26,388 --> 00:54:28,928

episode:

again, and there's usually someone that has a degree of empathy.

 

811

00:54:29,288 --> 00:54:32,808

episode:

When it comes to financial matters, because they're the only thing that's left

 

812

00:54:32,808 --> 00:54:34,448

episode:

after you die is financial matters, right?

 

813

00:54:34,568 --> 00:54:39,468

episode:

So, when it comes to appointing a financial attorney, it makes sense to me that

 

814

00:54:39,468 --> 00:54:44,048

episode:

there'd be either the same person as a financial attorney as the executor or

 

815

00:54:44,048 --> 00:54:48,928

episode:

the same group as the executor and the financial attorney, or that there's a common thread.

 

816

00:54:49,028 --> 00:54:53,628

episode:

So, that if you and I were Bob's financial attorneys, and then when Bob dies,

 

817

00:54:53,848 --> 00:54:56,948

episode:

you and someone else would be the executors, so there's

 

818

00:54:56,948 --> 00:54:59,768

episode:

that common thread and that you already know you don't have to reinvent you have

 

819

00:54:59,768 --> 00:55:02,608

episode:

to go so what's why we got all these telstra shares why do we buy those

 

820

00:55:02,608 --> 00:55:06,008

episode:

you know what's going on and you transition from you

 

821

00:55:06,008 --> 00:55:08,748

episode:

take one hat off you put the other hat on

 

822

00:55:08,748 --> 00:55:11,528

episode:

but you're in the same vehicle okay so you're just a different role that that

 

823

00:55:11,528 --> 00:55:16,588

episode:

makes sense to me and it makes sense to me that the person you would trust to

 

824

00:55:16,588 --> 00:55:21,068

episode:

tidy up your affairs after you die has got to have a lot of the same qualities

 

825

00:55:21,068 --> 00:55:24,408

episode:

as the person you would trust to do that if you lost capacity while you're alive

 

826

00:55:24,408 --> 00:55:26,548

episode:

So yeah, should be the same person if possible.

 

827

00:55:28,652 --> 00:55:34,992

episode:

That's great. Thanks, Greg. I appreciate that. Now, how can I contest a will in Australia?

 

828

00:55:35,772 --> 00:55:41,332

episode:

Oh, yes. Well, so there are two main ways that a will can be contested or two

 

829

00:55:41,332 --> 00:55:46,092

episode:

reasons you might contest a will or someone might not have done a will and what

 

830

00:55:46,092 --> 00:55:48,352

episode:

happens under intestacy you might not be happy about.

 

831

00:55:48,692 --> 00:55:53,552

episode:

If we're talking about a will to start with, you might want to argue you that

 

832

00:55:53,552 --> 00:55:55,852

episode:

the will is invalid, okay?

 

833

00:55:55,912 --> 00:56:00,972

episode:

So, it might be that the mum's will always divided everything three ways between her kids.

 

834

00:56:01,072 --> 00:56:05,612

episode:

And for the last year, Frank's been living with her and he's got in her ear

 

835

00:56:05,612 --> 00:56:08,412

episode:

and suddenly mum dies and there's a will that gives everything to Frank.

 

836

00:56:08,652 --> 00:56:09,852

episode:

What's that all about, okay?

 

837

00:56:10,172 --> 00:56:13,792

episode:

So, the first thing you can do is you can look at whether or not you can argue

 

838

00:56:13,792 --> 00:56:15,372

episode:

the will is not a valid document.

 

839

00:56:15,792 --> 00:56:19,452

episode:

And without going into too much detail, there are limited limited basis to do that.

 

840

00:56:19,492 --> 00:56:23,092

episode:

You can say in that case that mum didn't have capacity to do a will,

 

841

00:56:23,132 --> 00:56:27,252

episode:

she didn't have testamentary capacity, the capacity to do a will. It's very specific.

 

842

00:56:27,692 --> 00:56:31,652

episode:

You can argue that she was placed under undue influence, which is a very high

 

843

00:56:31,652 --> 00:56:37,352

episode:

bar, but effectively, it wasn't her own volition, her will to do that will.

 

844

00:56:37,492 --> 00:56:39,252

episode:

It was someone else forcing her to do it.

 

845

00:56:39,432 --> 00:56:42,092

episode:

Or you can argue that she hadn't read it. She didn't know it was in it.

 

846

00:56:42,292 --> 00:56:43,512

episode:

She never would have signed that.

 

847

00:56:44,352 --> 00:56:46,592

episode:

Someone just put a bit of paper in front of her and she signed it,

 

848

00:56:46,612 --> 00:56:47,572

episode:

not even knowing it was a will.

 

849

00:56:47,972 --> 00:56:53,872

episode:

Pretty limited basis. And if a will is formally executed, you know how before

 

850

00:56:53,872 --> 00:56:57,572

episode:

I said the law operates on presumptions, there's a presumption that if a will

 

851

00:56:57,572 --> 00:56:59,752

episode:

is formally executed, that it's valid.

 

852

00:56:59,972 --> 00:57:03,572

episode:

And there are different rules for formal execution of wills in each state,

 

853

00:57:03,612 --> 00:57:08,232

episode:

but generally in writing, signed somewhere on the will, but we always sign at

 

854

00:57:08,232 --> 00:57:11,272

episode:

the foot of each page and witnessed by at least two people.

 

855

00:57:11,392 --> 00:57:16,392

episode:

And the two people have to be there when the will maker signs and the will maker

 

856

00:57:16,392 --> 00:57:18,432

episode:

has got to be there when they each sign. Okay.

 

857

00:57:18,752 --> 00:57:22,532

episode:

And so if that happens, if there's a will, if there's a document that says will.

 

858

00:57:23,101 --> 00:57:26,981

episode:

And it looks like a will, and it's been signed by the test data and two witnesses.

 

859

00:57:27,521 --> 00:57:32,161

episode:

It's generally deemed to be a formal will, and there is a presumption that the

 

860

00:57:32,161 --> 00:57:36,441

episode:

test data had, the willmaker had capacity, and there's a presumption that they

 

861

00:57:36,441 --> 00:57:38,181

episode:

knew of and approved the contents.

 

862

00:57:38,481 --> 00:57:43,841

episode:

So it's a much higher bar that you've got to jump over to start arguing that

 

863

00:57:43,841 --> 00:57:47,681

episode:

the person or that the person didn't know what they were doing or that the will's not valid.

 

864

00:57:47,901 --> 00:57:51,761

episode:

Anyway, the first grounds that you would challenge a will, Catherine,

 

865

00:57:51,841 --> 00:57:53,341

episode:

is that you'd say it's an invalid document.

 

866

00:57:53,601 --> 00:57:57,261

episode:

The second basis is you might look at it and say, well, we can't challenge that

 

867

00:57:57,261 --> 00:58:00,421

episode:

it's a valid document. We accept it's valid, but you know what?

 

868

00:58:00,701 --> 00:58:05,621

episode:

Mum got it wrong. She just, you know how she decided late in life to give everything to Frank?

 

869

00:58:05,801 --> 00:58:09,761

episode:

She shouldn't have done that. She got it wrong. And so what you can do is,

 

870

00:58:09,801 --> 00:58:14,161

episode:

again, on a really limited basis, and it really varies from state to state,

 

871

00:58:14,301 --> 00:58:19,581

episode:

a limited class of people can say, I accept the will's a valid a document,

 

872

00:58:19,761 --> 00:58:21,841

episode:

but I'm unhappy with its contents.

 

873

00:58:22,161 --> 00:58:26,481

episode:

And that's called a family provision claim. Basically, we say that the will

 

874

00:58:26,481 --> 00:58:29,501

episode:

doesn't adequately provide for me.

 

875

00:58:29,741 --> 00:58:34,541

episode:

And in Victoria, that the sort of the basic test, and it's pretty similar in

 

876

00:58:34,541 --> 00:58:39,281

episode:

other states, is that you've got to establish that the deceased person had an obligation.

 

877

00:58:39,281 --> 00:58:43,001

episode:

We call it a moral obligation, but that word moral, who knows what it means,

 

878

00:58:43,101 --> 00:58:48,081

episode:

a moral obligation to provide for me and that the will doesn't satisfy that obligation.

 

879

00:58:48,421 --> 00:58:54,601

episode:

Okay. So, if I've got no assets, I'm suffering from mental illness,

 

880

00:58:54,701 --> 00:59:00,361

episode:

I'm living on the street, mum's got $2 million, I've got a sibling who's comfortable

 

881

00:59:00,361 --> 00:59:02,081

episode:

and mum gives everything to the sibling.

 

882

00:59:02,721 --> 00:59:06,961

episode:

It's not about fairness. It's not about 50-50 or anything like that.

 

883

00:59:07,081 --> 00:59:12,681

episode:

It's basically the court saying to mum, you brought Greg into the world and

 

884

00:59:12,681 --> 00:59:19,061

episode:

you got an obligation to make basic provision for him, he needs it and your will doesn't do that.

 

885

00:59:19,261 --> 00:59:25,401

episode:

And so then what a court will do is it'll vary the will just enough so that my needs are met.

 

886

00:59:25,701 --> 00:59:28,541

episode:

That's all it does. And so they're called family provision claims.

 

887

00:59:28,721 --> 00:59:29,801

episode:

They've been around for years.

 

888

00:59:30,101 --> 00:59:34,341

episode:

Their law changes all the time. The time limits are different in every state.

 

889

00:59:34,661 --> 00:59:38,241

episode:

The people who can claim are different in every state and the case law,

 

890

00:59:38,321 --> 00:59:40,101

episode:

what you might expect is different in every state.

 

891

00:59:40,241 --> 00:59:43,981

episode:

And so if you're looking at contesting a will, the best advice I can give you

 

892

00:59:43,981 --> 00:59:50,661

episode:

is whatever state you're in, ring a solicitor straight away as early as possible and ask questions.

 

893

00:59:50,701 --> 00:59:53,281

episode:

Because sometimes if there's assets in different jurisdictions,

 

894

00:59:53,541 --> 00:59:55,621

episode:

there's different claims made in different jurisdictions.

 

895

00:59:56,021 --> 00:59:59,021

episode:

And if the person lived in one jurisdiction, there's a claim made in that as

 

896

00:59:59,021 --> 01:00:02,681

episode:

well. So it can get quite complex, but they're the two bases.

 

897

01:00:02,761 --> 01:00:05,981

episode:

You challenge that the will's valid or you challenge what the will does.

 

898

01:00:07,930 --> 01:00:11,770

episode:

And just on that point, Greg, that's something that I hadn't actually noted

 

899

01:00:11,770 --> 01:00:17,650

episode:

down here was, as you were saying, if you make a will in one state and then

 

900

01:00:17,650 --> 01:00:22,110

episode:

you have assets in other states, how does that work?

 

901

01:00:22,670 --> 01:00:26,190

episode:

That's another good question. And to just broaden that question a bit,

 

902

01:00:26,290 --> 01:00:29,350

episode:

people nowadays have assets in lots of different jurisdictions.

 

903

01:00:29,470 --> 01:00:33,010

episode:

I think I mentioned before, you know, I've got an uncle and he's recommended.

 

904

01:00:33,210 --> 01:00:36,970

episode:

So I gave him $100,000 and I've got assets. I've got shares in the American

 

905

01:00:36,970 --> 01:00:40,070

episode:

stock exchange. or I worked for a couple of years in the States and I've got,

 

906

01:00:40,090 --> 01:00:43,150

episode:

you know, what they call their superannuation over there, or I,

 

907

01:00:43,190 --> 01:00:45,330

episode:

you know, I inherited a property in the UK.

 

908

01:00:45,490 --> 01:00:48,750

episode:

So, people have not only assets in different states of Australia,

 

909

01:00:48,950 --> 01:00:50,730

episode:

they have assets in different countries.

 

910

01:00:51,210 --> 01:00:57,690

episode:

And so, so the bottom line is that you've got to do documents that are going

 

911

01:00:57,690 --> 01:01:03,090

episode:

to be valid and recognized in the jurisdiction that you die in.

 

912

01:01:03,170 --> 01:01:06,610

episode:

So, you're domicile at the date of death. So, wherever you're living at the

 

913

01:01:06,610 --> 01:01:14,490

episode:

date of death, that's a really important factor for working out what happens with your assets, okay?

 

914

01:01:14,850 --> 01:01:19,490

episode:

But the other thing is that if you've got immovable property,

 

915

01:01:19,570 --> 01:01:23,490

episode:

if you've got real estate, basically, if you've got real estate in a particular

 

916

01:01:23,490 --> 01:01:26,830

episode:

state of Australia or overseas,

 

917

01:01:27,270 --> 01:01:32,430

episode:

then it's the law of the land that the real estate is in that applies.

 

918

01:01:32,790 --> 01:01:35,650

episode:

So, So, to answer your question with a really silly example,

 

919

01:01:35,850 --> 01:01:39,950

episode:

if I've got assets in Australia and I've got assets in, say,

 

920

01:01:40,130 --> 01:01:44,470

episode:

France, and I do a will that simply says I give all my assets to Catherine,

 

921

01:01:44,630 --> 01:01:49,890

episode:

in Australia, that'll be effective because I know how to do a will in Australia.

 

922

01:01:50,270 --> 01:01:52,630

episode:

But in France, it might not be effective.

 

923

01:01:53,329 --> 01:01:56,329

episode:

Because there might be rules about who gets the assets.

 

924

01:01:56,389 --> 01:01:59,709

episode:

When I die, half of them might go to my parents, half of them might not go to

 

925

01:01:59,709 --> 01:02:03,089

episode:

you. So, there might be what we call forced airship rules, okay?

 

926

01:02:03,289 --> 01:02:07,249

episode:

There might be other formalities with the will. Here, we need a signature and two witnesses.

 

927

01:02:07,629 --> 01:02:12,369

episode:

Over there, they might need three. I don't know. So, the longer answer to your

 

928

01:02:12,369 --> 01:02:15,589

episode:

question is if you ever have assets in multiple jurisdictions,

 

929

01:02:16,069 --> 01:02:19,729

episode:

find someone like me that can talk about each jurisdiction in Australia,

 

930

01:02:19,929 --> 01:02:24,509

episode:

but someone like me will then say to you, we need to have a conference or you

 

931

01:02:24,509 --> 01:02:26,689

episode:

need to have a meeting with a solicitor.

 

932

01:02:26,769 --> 01:02:29,009

episode:

I've got one at the moment where there are assets in Thailand,

 

933

01:02:29,089 --> 01:02:31,569

episode:

and we're going to have a meeting with the Thai solicitor.

 

934

01:02:31,629 --> 01:02:36,049

episode:

And I'm going to say, right, what do we need to do to make sure that this happens

 

935

01:02:36,049 --> 01:02:40,329

episode:

across the board in relation to death or disability?

 

936

01:02:40,929 --> 01:02:45,269

episode:

And what I generally recommend is that you do a will that basically says at

 

937

01:02:45,269 --> 01:02:50,929

episode:

the start of the will to the world, this will will only deal with and distribute

 

938

01:02:50,929 --> 01:02:53,909

episode:

assets in, and then you list out where it is in Australia.

 

939

01:02:54,269 --> 01:02:58,669

episode:

And then in the case of this Thai couple that I've got, I'm recommending that

 

940

01:02:58,669 --> 01:03:01,949

episode:

they do a will in Australia and I'm recommending they do a will in Thailand

 

941

01:03:01,949 --> 01:03:05,049

episode:

and that the two of them are separate. They're independent of each other.

 

942

01:03:05,369 --> 01:03:08,529

episode:

So yeah, multiple wills, multiple powers of attorney.

 

943

01:03:08,929 --> 01:03:13,429

episode:

It's again, it's just about being pragmatic and thinking if I die or lose capacity

 

944

01:03:13,429 --> 01:03:20,289

episode:

in a particular geographical location, what are the laws of that area and how

 

945

01:03:20,289 --> 01:03:23,889

episode:

are they going to impact on what happens to me, to my body, to the choices that are made?

 

946

01:03:25,309 --> 01:03:30,109

episode:

And just clarifying, so I made my will in Victoria.

 

947

01:03:30,629 --> 01:03:38,349

episode:

So if I died in another state, probate is my Victorian will still valid?

 

948

01:03:38,469 --> 01:03:42,329

episode:

Yeah, in Australia, most of the wills acts are similar enough that if you do

 

949

01:03:42,329 --> 01:03:47,029

episode:

a will in one state, it'll be regarded as it'll apply to all of your assets.

 

950

01:03:47,309 --> 01:03:50,389

episode:

If you don't stipulate, if you simply say, I give everything I own at the date

 

951

01:03:50,389 --> 01:03:54,329

episode:

of my death to Catherine, then wherever you own assets, you might have to get

 

952

01:03:54,329 --> 01:03:57,689

episode:

probate in two or three different places, but each of the different states will

 

953

01:03:57,689 --> 01:03:58,849

episode:

recognise that as a will.

 

954

01:03:58,989 --> 01:04:02,989

episode:

It doesn't matter where you signed it. What matters is whether the probate office

 

955

01:04:02,989 --> 01:04:05,749

episode:

can recognise it as a will at the date of your death.

 

956

01:04:05,969 --> 01:04:10,669

episode:

And in Australia, all the rules are similar enough that the probate offices would.

 

957

01:04:12,493 --> 01:04:17,973

episode:

Okay, that's good to know. But what a trend we must have seen what emerged over

 

958

01:04:17,973 --> 01:04:23,553

episode:

the last 15, 20 years is that's the change with people being more mobile.

 

959

01:04:24,233 --> 01:04:27,573

episode:

Yep. A lot more things online, definition of family changing,

 

960

01:04:27,713 --> 01:04:29,193

episode:

definition of property changing,

 

961

01:04:29,533 --> 01:04:34,513

episode:

Bitcoin, you know, all of this stuff that, you know, the, I think,

 

962

01:04:34,533 --> 01:04:38,373

episode:

you know, I reckon in the the last three years, I've had one estate,

 

963

01:04:38,693 --> 01:04:43,813

episode:

which has been as simple as a house, money in the bank and chattels.

 

964

01:04:43,973 --> 01:04:46,633

episode:

I've had one. Everything else has had a degree of complexity.

 

965

01:04:47,713 --> 01:04:53,093

episode:

And that's fine. It is what it is. But it is an area that it does argue towards

 

966

01:04:53,093 --> 01:04:55,373

episode:

using people that specialize.

 

967

01:04:55,573 --> 01:04:59,533

episode:

Like if I was needing a family lawyer, I'd go to a family law specialist.

 

968

01:04:59,713 --> 01:05:02,593

episode:

And if I'm getting a lease done, I'll go to a commercial law specialist.

 

969

01:05:02,753 --> 01:05:06,733

episode:

So this is an area that is becoming sufficiently complex that I think generally

 

970

01:05:06,733 --> 01:05:12,293

episode:

warrants that you at least think about the benefits of, yeah,

 

971

01:05:12,573 --> 01:05:16,253

episode:

speaking to a financial advisor, speaking to an accountant and speaking to a

 

972

01:05:16,253 --> 01:05:18,993

episode:

specialist solicitor, and particularly if you're an executor.

 

973

01:05:19,013 --> 01:05:21,733

episode:

Because executors, their reputation

 

974

01:05:21,733 --> 01:05:25,293

episode:

and financially, they're on the hook for anything they do wrong.

 

975

01:05:25,413 --> 01:05:30,293

episode:

So, make sure that if you are an executor, you think about carefully whether you want to do the job.

 

976

01:05:30,373 --> 01:05:33,413

episode:

And I've been an executor and I've taken it on board because it's a,

 

977

01:05:33,413 --> 01:05:36,813

episode:

you know, It's a responsibility and it's a privilege, but you do need to dot

 

978

01:05:36,813 --> 01:05:39,233

episode:

the I's, cross the T's and make sure you're covered.

 

979

01:05:41,547 --> 01:05:47,167

episode:

Yeah, it certainly sounds like it. And is there any way to exclude someone from a will?

 

980

01:05:48,187 --> 01:05:51,367

episode:

Yep, there is. So, there's two ways to do it. One is to, well,

 

981

01:05:51,447 --> 01:05:54,567

episode:

three ways. One is to simply not include them in the will and do nothing more.

 

982

01:05:54,927 --> 01:06:00,627

episode:

A better way is to not include them in the will and to explain blandly in the

 

983

01:06:00,627 --> 01:06:02,807

episode:

will that you've not included them.

 

984

01:06:03,227 --> 01:06:08,087

episode:

And then external to the will, you can put more detail about why you've excluded

 

985

01:06:08,087 --> 01:06:11,027

episode:

them. So, if I wanted to cut out Simon from my estate.

 

986

01:06:11,387 --> 01:06:15,947

episode:

I could put in my will. I give everything to my two children, Mary and Bob.

 

987

01:06:16,167 --> 01:06:18,907

episode:

A better way to go would be to say, I give everything to my two children,

 

988

01:06:18,927 --> 01:06:22,827

episode:

Mary and Bob. I declare that I've made no provision for Simon.

 

989

01:06:23,027 --> 01:06:25,987

episode:

And the reasons for me doing that are known to my executors.

 

990

01:06:26,127 --> 01:06:29,167

episode:

And then external to the will, you would set out all the reasons.

 

991

01:06:29,407 --> 01:06:33,087

episode:

The reason for that is that there are two reasons. One's a legal reason.

 

992

01:06:33,127 --> 01:06:34,047

episode:

One's a pragmatic reason.

 

993

01:06:34,207 --> 01:06:37,687

episode:

The legal reason is anything Anything you put in your will can be scrutinized

 

994

01:06:37,687 --> 01:06:40,347

episode:

by a court and a judge after you're dead.

 

995

01:06:40,567 --> 01:06:44,187

episode:

And if you put in things that are inaccurate, it might impact.

 

996

01:06:44,367 --> 01:06:49,387

episode:

It's rare, but it might impact on other aspects of the will and ultimately the validity of the will.

 

997

01:06:49,507 --> 01:06:53,367

episode:

So if you put something stupid in the will, like I've excluded Simon because

 

998

01:06:53,367 --> 01:06:55,967

episode:

he never visits me and I haven't spoken to him for 20 years.

 

999

01:06:56,107 --> 01:06:59,007

episode:

And Simon was regularly visiting the test data.

 

1000

01:06:59,187 --> 01:07:03,707

episode:

That might be evidence of a delusion. So you wouldn't put that in the will.

 

1001

01:07:03,707 --> 01:07:08,067

episode:

And the will becomes a public document so that everyone can see it and it's

 

1002

01:07:08,067 --> 01:07:09,127

episode:

got to be presented to the court.

 

1003

01:07:10,027 --> 01:07:15,627

episode:

The other reason though from a pragmatic basis why you might not include any detail in the will,

 

1004

01:07:16,502 --> 01:07:22,902

episode:

is, sometimes, Simon might not care. If Simon's excluded, and the only evidence

 

1005

01:07:22,902 --> 01:07:26,222

episode:

is that, well, Simon's excluded for reasons that are known to my executor,

 

1006

01:07:26,582 --> 01:07:27,922

episode:

Simon might just take it on the chin.

 

1007

01:07:28,082 --> 01:07:32,162

episode:

But if you take a red rag, and if you wave it in front of his face and go,

 

1008

01:07:32,282 --> 01:07:36,482

episode:

well, Simon's a terrible son, and he never visits me, and his wife's horrible,

 

1009

01:07:36,622 --> 01:07:40,242

episode:

it's all these reasons why Simon says, hang on, that's not true.

 

1010

01:07:40,462 --> 01:07:41,762

episode:

I've now got to defend myself.

 

1011

01:07:42,042 --> 01:07:45,982

episode:

And so, Simon issues proceedings meetings to clear his name and he wouldn't have done it otherwise.

 

1012

01:07:46,162 --> 01:07:53,222

episode:

So, yeah. So, that's the first two ways to do it is to bland with a declaration or simply exclude.

 

1013

01:07:53,522 --> 01:07:57,902

episode:

But a better way, because it's generally only in a state that can be challenged.

 

1014

01:07:58,002 --> 01:08:01,862

episode:

So, we're talking about excluding a beneficiary on a basis that they won't be

 

1015

01:08:01,862 --> 01:08:04,082

episode:

able to do anything about it. They won't be able to challenge.

 

1016

01:08:04,242 --> 01:08:07,742

episode:

They won't be able to, as unhappy as they are, they won't be able to effectively

 

1017

01:08:07,742 --> 01:08:14,862

episode:

change the distribution that your client or that the person wants their estate

 

1018

01:08:14,862 --> 01:08:16,102

episode:

to be distributed pursuant to.

 

1019

01:08:16,482 --> 01:08:21,702

episode:

And so a better way of doing it is to actually not have those assets fall into the estate.

 

1020

01:08:21,862 --> 01:08:26,262

episode:

So if I've got a client with a million dollars in cash and two kids,

 

1021

01:08:26,262 --> 01:08:28,422

episode:

and one of them he wants to exclude, the other one he doesn't,

 

1022

01:08:28,422 --> 01:08:35,742

episode:

and there's time, I'll be saying just distribute $950,000 out while you're alive.

 

1023

01:08:36,022 --> 01:08:39,582

episode:

Because then when you die, you die owning $50,000. And if the son wants to argue

 

1024

01:08:39,582 --> 01:08:41,422

episode:

for half of $50,000, well, good luck to him.

 

1025

01:08:41,642 --> 01:08:47,022

episode:

So the forward estate planning comes into play. Now, that's a very bland statement.

 

1026

01:08:47,142 --> 01:08:49,622

episode:

You've got to think about stamp duty. You've got to think about capital gains

 

1027

01:08:49,622 --> 01:08:51,502

episode:

tax. You've got to think about longevity.

 

1028

01:08:51,642 --> 01:08:54,522

episode:

You've got to think about a lot of things and get financial advice and tax advice.

 

1029

01:08:54,682 --> 01:09:00,962

episode:

But the best way to exclude a beneficiary from your estate is to die without an estate.

 

1030

01:09:01,322 --> 01:09:04,782

episode:

And that can sometimes be achieved depending on the circumstances of your passing.

 

1031

01:09:07,220 --> 01:09:17,480

episode:

Wow, that's a really interesting thought. Some people want to control from beyond the grave.

 

1032

01:09:17,700 --> 01:09:21,840

episode:

A lot of people want to control as they are entering the grave.

 

1033

01:09:22,020 --> 01:09:24,120

episode:

And yeah, it can be incredibly empowering.

 

1034

01:09:24,500 --> 01:09:28,180

episode:

With the appropriate checks and balances, I had one client who was absolutely

 

1035

01:09:28,180 --> 01:09:30,520

episode:

adamant that his son was going to contest.

 

1036

01:09:30,700 --> 01:09:34,400

episode:

From his perspective, he'd been a very good father. He tried and tried and tried.

 

1037

01:09:34,400 --> 01:09:38,860

episode:

But I think it was alcohol, drugs, and other bad choices that had intervened and got in the way.

 

1038

01:09:39,040 --> 01:09:43,420

episode:

And he didn't want his daughter to suffer as a result of the son's claim,

 

1039

01:09:43,560 --> 01:09:47,320

episode:

which was going to take six to 12 to 18 months to resolve and going to cost

 

1040

01:09:47,320 --> 01:09:48,840

episode:

the estate hundreds of thousands of dollars.

 

1041

01:09:49,020 --> 01:09:54,160

episode:

So we took him from having a net worth of about $3 million all the way down

 

1042

01:09:54,160 --> 01:09:59,080

episode:

to about $700,000 by getting a property and putting it in the joint names of

 

1043

01:09:59,080 --> 01:10:02,220

episode:

him and his daughter and getting his super and making sure it went to his daughter

 

1044

01:10:02,220 --> 01:10:05,840

episode:

and getting money that was in cash and putting it in a trust, things like that.

 

1045

01:10:06,360 --> 01:10:11,220

episode:

He was very unwell. He was mentally fine, but he was only going to be around for a few months.

 

1046

01:10:11,340 --> 01:10:14,660

episode:

It was some end-stage cancer that hadn't affected his capacity.

 

1047

01:10:15,000 --> 01:10:18,560

episode:

So, we got capacity assessments. We made sure he knew what he was doing, all that sort of stuff.

 

1048

01:10:18,800 --> 01:10:23,440

episode:

And when he died, he had about $700,000 left and the son challenged.

 

1049

01:10:23,880 --> 01:10:29,640

episode:

And the son ended up taking about $150,000 as a settlement because there was

 

1050

01:10:29,640 --> 01:10:32,240

episode:

so little money there relative to what they thought was going to be there.

 

1051

01:10:32,440 --> 01:10:38,680

episode:

They found out towards the end of the negotiations that the father had divested himself of assets.

 

1052

01:10:39,220 --> 01:10:44,240

episode:

And unfortunately, even though that firm there resolved to be unhappy about

 

1053

01:10:44,240 --> 01:10:45,920

episode:

it, they couldn't do anything about it.

 

1054

01:10:45,980 --> 01:10:49,320

episode:

So he would be very happy if there is an afterlife, I'm sure.

 

1055

01:10:49,440 --> 01:10:53,160

episode:

And if I end up where he is, he will thank me and congratulate me because it

 

1056

01:10:53,160 --> 01:10:55,280

episode:

was very important to him. Some people don't care.

 

1057

01:10:55,540 --> 01:11:02,100

episode:

I'm going, I don't care what they've sorted out. To him, it was incredibly important that his son,

 

1058

01:11:02,240 --> 01:11:07,680

episode:

he took it as a personal affront that his son would be able to do something

 

1059

01:11:07,680 --> 01:11:11,920

episode:

after his death that my client was able to prevent before he died.

 

1060

01:11:12,060 --> 01:11:16,280

episode:

So this was a way of him achieving some form of self-determination so far as

 

1061

01:11:16,280 --> 01:11:18,860

episode:

his assets were concerned. So yeah, we do a fair bit of that, Catherine.

 

1062

01:11:20,399 --> 01:11:24,939

episode:

And so, this question that's next that says inheritance planning,

 

1063

01:11:25,259 --> 01:11:29,379

episode:

really it's dependent on each individual situation, isn't it?

 

1064

01:11:29,559 --> 01:11:34,159

episode:

That's right. Yeah. So, some people want to, you know, minimise tax consequences

 

1065

01:11:34,159 --> 01:11:36,939

episode:

for their beneficiaries. So, we talk about testamentary trusts.

 

1066

01:11:37,199 --> 01:11:40,099

episode:

Some people want to protect them from bad relationships. So,

 

1067

01:11:40,099 --> 01:11:41,759

episode:

we talk about protective trusts.

 

1068

01:11:41,859 --> 01:11:45,859

episode:

Some people are concerned about Centlink. think, you know, they've got a child

 

1069

01:11:45,859 --> 01:11:49,479

episode:

with a disability and they want to maximise the prospects of the child maintaining

 

1070

01:11:49,479 --> 01:11:50,679

episode:

a special disability pension.

 

1071

01:11:50,979 --> 01:11:55,619

episode:

So, there are all different ways that we can look at doing, at addressing those needs.

 

1072

01:11:55,759 --> 01:11:59,819

episode:

Some people write about a claim being made and yeah, it really is an opportunity

 

1073

01:11:59,819 --> 01:12:03,819

episode:

to, it's a bit of a, you know, not to get philosophical but it is a bit of a

 

1074

01:12:03,819 --> 01:12:08,859

episode:

journey of self-discovery where people find out just how important this stuff is to them.

 

1075

01:12:08,859 --> 01:12:12,079

episode:

To some people it's amazingly important and to

 

1076

01:12:12,079 --> 01:12:15,039

episode:

other people it's not it turns out it's not that important at

 

1077

01:12:15,039 --> 01:12:17,759

episode:

all a lot of times i send my letters of advice and they come back and

 

1078

01:12:17,759 --> 01:12:20,379

episode:

go yeah look down right it's fine it's all good i couldn't be bothered it's

 

1079

01:12:20,379 --> 01:12:23,099

episode:

you know whatever they do let them if they want to fight about it they'll fight

 

1080

01:12:23,099 --> 01:12:26,599

episode:

about it okay i'm not going to waste any energy on it i'll keep spending my

 

1081

01:12:26,599 --> 01:12:30,119

episode:

money whatever i leave that'll that's when i'm handing over the baton for them

 

1082

01:12:30,119 --> 01:12:35,459

episode:

but whether they're at one end of the spectrum or the other on the care factor They all want,

 

1083

01:12:35,539 --> 01:12:38,459

episode:

and my job is to make sure they're in a position to make an

 

1084

01:12:38,459 --> 01:12:43,339

episode:

informed decision about that and to take responsibility for how simple or complex

 

1085

01:12:43,339 --> 01:12:49,019

episode:

their estate plan is and how much or how little they want to control from beyond

 

1086

01:12:49,019 --> 01:12:56,299

episode:

the grave and how much they want to actually reduce their estate to take preemptive

 

1087

01:12:56,299 --> 01:12:58,339

episode:

strikes against potential claims being made.

 

1088

01:12:58,339 --> 01:13:02,279

episode:

People learn a lot about themselves when they consider their own mortality and

 

1089

01:13:02,279 --> 01:13:05,179

episode:

what's going to happen and what the world's going to look like without them in it.

 

1090

01:13:07,799 --> 01:13:14,499

episode:

And tell me, when have you seen it go quite bad, Greg, because things haven't been planned for?

 

1091

01:13:14,859 --> 01:13:21,579

episode:

So where we plan well, things can still go bad, but the risk is minimised.

 

1092

01:13:21,619 --> 01:13:27,099

episode:

Where there's some inadequate planning, it's usually people that are unwilling

 

1093

01:13:27,099 --> 01:13:28,519

episode:

to be honest with themselves.

 

1094

01:13:28,519 --> 01:13:31,439

episode:

Themselves so it's usually people that are living in

 

1095

01:13:31,439 --> 01:13:34,179

episode:

denial you know and that i just you know they

 

1096

01:13:34,179 --> 01:13:37,559

episode:

just refuse to accept that the

 

1097

01:13:37,559 --> 01:13:43,459

episode:

wife and their kids so stepmother and the kids aren't going to get on they just

 

1098

01:13:43,459 --> 01:13:47,579

episode:

refuse to accept that they've got rose-colored glasses with that so i had a

 

1099

01:13:47,579 --> 01:13:52,319

episode:

i had a client who's who was in that situation he had a a wife and she had no

 

1100

01:13:52,319 --> 01:13:55,079

episode:

children and he had three children of his own.

 

1101

01:13:55,159 --> 01:14:00,139

episode:

And it was obvious that they didn't respect her and she had given up on trying

 

1102

01:14:00,139 --> 01:14:02,359

episode:

to secure their respect, but

 

1103

01:14:02,359 --> 01:14:05,299

episode:

he couldn't see it. And he refused to put any checks or balances in place.

 

1104

01:14:05,639 --> 01:14:11,999

episode:

And they argued for years about her entitlement and what adequate need was and

 

1105

01:14:11,999 --> 01:14:17,639

episode:

all that sort of stuff, because he just left everything to them to look after her.

 

1106

01:14:17,799 --> 01:14:20,259

episode:

And she didn't want to be looked after. She wanted her own money.

 

1107

01:14:20,319 --> 01:14:21,079

episode:

She wanted her own assets.

 

1108

01:14:22,619 --> 01:14:26,139

episode:

She She didn't want them to be waiting for her to die so they could get their

 

1109

01:14:26,139 --> 01:14:29,019

episode:

inheritance. So, yeah, when it goes wrong, it goes wrong in a big way.

 

1110

01:14:29,899 --> 01:14:34,319

episode:

And sometimes the planning process can address that. I often will recommend,

 

1111

01:14:34,539 --> 01:14:37,899

episode:

you know, and as you said, it's very bespoke, so I'll often recommend if there's

 

1112

01:14:37,899 --> 01:14:42,439

episode:

intractable disputes, if the only thing keeping this family together is the

 

1113

01:14:42,439 --> 01:14:45,659

episode:

willmaker and once the willmaker goes, people are just going to drift apart.

 

1114

01:14:46,579 --> 01:14:48,619

episode:

I always recommend there be a separation.

 

1115

01:14:48,939 --> 01:14:51,159

episode:

If they can afford it, if they've got a big enough estate –,

 

1116

01:14:51,978 --> 01:14:55,798

episode:

wife or husband should get that, kids should get that. If you want to keep in

 

1117

01:14:55,798 --> 01:14:57,558

episode:

touch, that's fine, but you don't have to.

 

1118

01:14:58,218 --> 01:15:01,918

episode:

Otherwise, if there's not enough money or if there's a desire to maintain assets,

 

1119

01:15:02,138 --> 01:15:05,878

episode:

we can do things like life interest where the partner can reside in a property,

 

1120

01:15:06,018 --> 01:15:07,998

episode:

but ultimately it will pass to the children.

 

1121

01:15:08,558 --> 01:15:11,858

episode:

They've got to be really carefully thought of and they've got to be really carefully

 

1122

01:15:11,858 --> 01:15:16,278

episode:

drafted and there's lots of tax and other consequences, but we can do those sort of things as well.

 

1123

01:15:16,598 --> 01:15:19,398

episode:

Yes, I think that's probably a longish answer your question.

 

1124

01:15:19,518 --> 01:15:24,438

episode:

It can go wrong very seriously, but it's usually whether or not you use a solicitor.

 

1125

01:15:24,438 --> 01:15:30,958

episode:

It'll go wrong if you don't think practically, pragmatically, and really honestly.

 

1126

01:15:31,178 --> 01:15:33,258

episode:

You've got to hold up a mirror to what's going on. You've got to say,

 

1127

01:15:33,318 --> 01:15:37,538

episode:

you know what, this family's dysfunctional and we need to accommodate that dysfunction.

 

1128

01:15:38,038 --> 01:15:41,918

episode:

I usually try to reassure my clients, Catherine, where they'll come in and they'll start whispering.

 

1129

01:15:41,998 --> 01:15:45,538

episode:

They go, oh, you know, because, you know, and they've got these secrets. And I go, it's fine.

 

1130

01:15:45,538 --> 01:15:48,698

episode:

Mine tell me warts and all and I usually don't get

 

1131

01:15:48,698 --> 01:15:51,818

episode:

anybody above on my dysfunction scale because

 

1132

01:15:51,818 --> 01:15:55,478

episode:

I've seen some pretty bad things most of the people I see that think that they

 

1133

01:15:55,478 --> 01:15:59,038

episode:

are the worst family in the world they're so dysfunctional they're embarrassed

 

1134

01:15:59,038 --> 01:16:03,878

episode:

most people are about one or two out of ten on my dysfunction level most people

 

1135

01:16:03,878 --> 01:16:07,838

episode:

aren't as dysfunctional as I think they are so be honest with your lawyer would

 

1136

01:16:07,838 --> 01:16:09,658

episode:

be my advice make sure the lawyer knows everything.

 

1137

01:16:11,158 --> 01:16:17,218

episode:

And I think having those early conversations around the dinner table or whatever

 

1138

01:16:17,218 --> 01:16:20,998

episode:

space you're having them in, in a car where no one can leave,

 

1139

01:16:21,298 --> 01:16:27,578

episode:

it would highlight whether you're going to have conflicts of interest or points

 

1140

01:16:27,578 --> 01:16:34,578

episode:

of view that then perhaps you could start planning accordingly to what you're

 

1141

01:16:34,578 --> 01:16:35,678

episode:

seeing actually eventually.

 

1142

01:16:36,658 --> 01:16:40,238

episode:

Yeah, absolutely. You might not realize that someone's had to be in their bonnet

 

1143

01:16:40,238 --> 01:16:44,138

episode:

for so long about something. Yeah, really? Oh, let's sort that out. Yeah, absolutely.

 

1144

01:16:44,498 --> 01:16:48,298

episode:

And it's about, I think it's where parents continue to be parents,

 

1145

01:16:48,378 --> 01:16:52,598

episode:

that even though we're probably talking now about older families where everyone

 

1146

01:16:52,598 --> 01:16:57,338

episode:

who's relevant is an adult, but the parents get to be parents again.

 

1147

01:16:57,478 --> 01:17:00,418

episode:

So they sit down with their kids that are in their 30s and 40s that

 

1148

01:17:00,418 --> 01:17:03,278

episode:

are twice as wealthy as them now and three times as

 

1149

01:17:03,278 --> 01:17:06,158

episode:

smart and they go right so this is

 

1150

01:17:06,158 --> 01:17:08,818

episode:

what we've decided to do mum and i've talked about it or dad and i've

 

1151

01:17:08,818 --> 01:17:11,518

episode:

talked about it and this is what we've decided to do and to just

 

1152

01:17:11,518 --> 01:17:16,238

episode:

sort of set those out now you know sarah's not doing as well as the two of you

 

1153

01:17:16,238 --> 01:17:19,698

episode:

so we've decided we're going to allow her to keep the house and what we're doing

 

1154

01:17:19,698 --> 01:17:22,918

episode:

over here is giving you the super and we think that's fair because you know

 

1155

01:17:22,918 --> 01:17:25,418

episode:

we this that and the other and the boys can go well i don't think that's fair

 

1156

01:17:25,418 --> 01:17:30,478

episode:

at all dad i mean she's had the same as us and you can discuss Gus said, it's only money, right?

 

1157

01:17:30,658 --> 01:17:33,858

episode:

It's not like we're still a family at the end of the day and we don't have to

 

1158

01:17:33,858 --> 01:17:38,278

episode:

agree with everything, but it does allow these matters to be ventilated. And I can guarantee you.

 

1159

01:17:39,012 --> 01:17:43,992

episode:

That if the discussion's not had and mum and dad die and Sarah gets the house

 

1160

01:17:43,992 --> 01:17:47,372

episode:

and the boys didn't know she was going to get it, that's when there's trouble.

 

1161

01:17:47,552 --> 01:17:51,692

episode:

And it's not usually just the boys and their sister, it's the in-laws.

 

1162

01:17:51,972 --> 01:17:53,892

episode:

It's the in-laws saying, but you deserve more.

 

1163

01:17:54,232 --> 01:18:00,932

episode:

And that's where an issue that could have been resolved around the kitchen table

 

1164

01:18:00,932 --> 01:18:04,032

episode:

or the dining room table over a couple of years then becomes intractable.

 

1165

01:18:04,132 --> 01:18:08,732

episode:

And once you lawyer up, things that are problematic made it become resolved

 

1166

01:18:08,732 --> 01:18:11,092

episode:

and become very, very firm and fixed.

 

1167

01:18:11,172 --> 01:18:15,632

episode:

And people like me get involved and go through the process and say hello to

 

1168

01:18:15,632 --> 01:18:16,792

episode:

the barristers and the judges again.

 

1169

01:18:17,972 --> 01:18:21,412

episode:

It's not great, but yeah. And that sounds expensive.

 

1170

01:18:22,072 --> 01:18:28,212

episode:

It is expensive. It's very expensive depending on which barrister you use and how it's run.

 

1171

01:18:28,672 --> 01:18:33,092

episode:

Mostly, to get to a mediation between an estate and a claimant,

 

1172

01:18:33,092 --> 01:18:37,592

episode:

you'll have spent about $50,000 and that's sort of the first pit stop.

 

1173

01:18:37,772 --> 01:18:41,072

episode:

And then to get to a final hearing in most estate type claims,

 

1174

01:18:41,172 --> 01:18:43,112

episode:

you're spending something north of $100,000.

 

1175

01:18:43,652 --> 01:18:47,232

episode:

It's just a horrible amount of money so that if you've got an estate that's

 

1176

01:18:47,232 --> 01:18:51,632

episode:

worth say $1 million or $2 million, you're spending a significant percentage

 

1177

01:18:51,632 --> 01:18:55,992

episode:

of the gross value of that estate for the privilege of arguing.

 

1178

01:18:56,272 --> 01:19:01,252

episode:

And usually, Usually, quite often, the costs you end up spending can be similar

 

1179

01:19:01,252 --> 01:19:07,092

episode:

to or even more than the dispute that you end up, you know, how far apart you are.

 

1180

01:19:07,192 --> 01:19:12,072

episode:

So, yeah, any early intervention, a colleague of mine coined the phrase preventative

 

1181

01:19:12,072 --> 01:19:15,312

episode:

lawyer and he sees, he saw himself and I think it's a really,

 

1182

01:19:15,372 --> 01:19:19,092

episode:

really good focus for estate planners who work in this space to see ourselves

 

1183

01:19:19,092 --> 01:19:21,592

episode:

as looking at all the possible things that.

 

1184

01:19:22,398 --> 01:19:26,718

episode:

Based on the family dynamic, based on an informal plus a robust conversation

 

1185

01:19:26,718 --> 01:19:29,498

episode:

with our clients, think of all the things that might go wrong,

 

1186

01:19:29,598 --> 01:19:34,658

episode:

and then trying to accommodate them and take steps to prevent them from happening.

 

1187

01:19:34,838 --> 01:19:38,138

episode:

And that's all we can do. I mean, that's the definition of self-determination.

 

1188

01:19:38,358 --> 01:19:41,118

episode:

You know, we put these advanced care plans into place in

 

1189

01:19:41,118 --> 01:19:44,898

episode:

the hope that medically our passing from

 

1190

01:19:44,898 --> 01:19:48,358

episode:

being alive to not being around is going to be characterized

 

1191

01:19:48,358 --> 01:19:51,438

episode:

by dignity but it's not always the case but we maximize the

 

1192

01:19:51,438 --> 01:19:54,918

episode:

chance of that occurring if we've got a good set of documents and

 

1193

01:19:54,918 --> 01:19:58,438

episode:

if you've got a good set of estate planning documents someone wants

 

1194

01:19:58,438 --> 01:20:01,178

episode:

to have a fight in your family they're always going to have a fight but you

 

1195

01:20:01,178 --> 01:20:03,938

episode:

minimize the prospect of that occurring if you've

 

1196

01:20:03,938 --> 01:20:07,918

episode:

got a good set of estate planning documents and if you have these conversations

 

1197

01:20:07,918 --> 01:20:12,678

episode:

so that not only are the documents robust but the expectations from the parents

 

1198

01:20:12,678 --> 01:20:17,498

episode:

are very very clear and even if I don't agree with what dad said if he told

 

1199

01:20:17,498 --> 01:20:21,278

episode:

me and he he looked me in the eye and he said, this is what I want and this is my will,

 

1200

01:20:21,438 --> 01:20:25,198

episode:

then it's much harder for me to then go to court and argue about that.

 

1201

01:20:27,418 --> 01:20:35,178

episode:

And what surprises me is that about 46% of Australians don't have a will,

 

1202

01:20:35,318 --> 01:20:38,138

episode:

roughly what the figure is.

 

1203

01:20:38,518 --> 01:20:44,278

episode:

And what surprises me is that these same people are going and getting their

 

1204

01:20:44,278 --> 01:20:49,678

episode:

tax done, putting putting extra money into their super, yet at the end of the

 

1205

01:20:49,678 --> 01:20:52,198

episode:

day, they're not taking the basic steps.

 

1206

01:20:53,358 --> 01:20:58,458

episode:

Why do you think that is? Well, I think I know from my experience that we –.

 

1207

01:20:59,811 --> 01:21:06,991

episode:

And we spend a lot of our time unable to actively accept our own mortality.

 

1208

01:21:07,231 --> 01:21:12,951

episode:

I mean, it's as simple as that. We live our life not prepared to realistically

 

1209

01:21:12,951 --> 01:21:15,971

episode:

consider the fact that we won't be here one day.

 

1210

01:21:16,151 --> 01:21:21,671

episode:

The benefit for me in working in this area, apart from the professional rewards

 

1211

01:21:21,671 --> 01:21:29,651

episode:

I get, is that being reminded every single day about mortality, I am drafting wills.

 

1212

01:21:29,651 --> 01:21:32,751

episode:

I'm doing deathbed wills. I'm administering someone's estate.

 

1213

01:21:32,931 --> 01:21:37,431

episode:

I have someone come in on day one, you know, very well, but just having some

 

1214

01:21:37,431 --> 01:21:40,891

episode:

tests and, you know, getting some bad news for a melanoma.

 

1215

01:21:40,991 --> 01:21:44,311

episode:

And then six weeks later, the widow comes in and says he passed away,

 

1216

01:21:44,531 --> 01:21:46,611

episode:

you know, and it was very, very sad at the end there.

 

1217

01:21:46,671 --> 01:21:51,291

episode:

Just constantly being reminded about mortality for me has become incredibly

 

1218

01:21:51,291 --> 01:21:55,531

episode:

life affirming because it's a reminder that it's all going to end one day and

 

1219

01:21:55,531 --> 01:21:57,471

episode:

who knows when and who knows how long we've got.

 

1220

01:21:57,671 --> 01:22:02,731

episode:

And so I'm very conscious of the fact that the end can come pretty quickly and

 

1221

01:22:02,731 --> 01:22:03,771

episode:

can come quite suddenly.

 

1222

01:22:04,531 --> 01:22:07,531

episode:

Or it can be the opposite and we can linger on and we can become unwell,

 

1223

01:22:07,611 --> 01:22:13,791

episode:

but the onset of debilitating illness can also be very sudden and can come on an unexpected basis.

 

1224

01:22:14,151 --> 01:22:20,491

episode:

And so for me, it's just an absolute no-brainer and it's not that hard to make provision for that.

 

1225

01:22:20,591 --> 01:22:24,611

episode:

But a lot of people that don't do the job that I've got, that don't have the

 

1226

01:22:24,611 --> 01:22:30,011

episode:

luxury of being reminded every day about mortality is just a refusal to accept that.

 

1227

01:22:30,131 --> 01:22:33,591

episode:

And it's not a criticism. There's no value judgments in that observation.

 

1228

01:22:33,811 --> 01:22:37,751

episode:

But you ask most people about just to start talking about death,

 

1229

01:22:37,811 --> 01:22:38,671

episode:

and they're just not comfortable.

 

1230

01:22:38,811 --> 01:22:42,831

episode:

We're not comfortable having the conversation about ourselves, about not being here.

 

1231

01:22:43,708 --> 01:22:47,708

episode:

So, and of course, we worry about our kids and we just can't face it, can we?

 

1232

01:22:47,848 --> 01:22:53,248

episode:

And that's just, it's impossible to formulate a strategy.

 

1233

01:22:53,388 --> 01:22:56,408

episode:

And I can deal with financial problems.

 

1234

01:22:56,568 --> 01:23:00,748

episode:

I can deal, I'd hate it, but if my wife left me, I'd have a way of coping with that.

 

1235

01:23:00,828 --> 01:23:05,848

episode:

But most people would say they've got no game plan for dealing with the process of dying.

 

1236

01:23:06,728 --> 01:23:10,468

episode:

I don't know what I'm going to do. And what's going to happen after you go on, I don't know.

 

1237

01:23:10,828 --> 01:23:15,528

episode:

So, it's just put in the too hard basket, Catherine. And I get that. I respect that.

 

1238

01:23:15,608 --> 01:23:20,168

episode:

But my job is to try to encourage it out of the too hard basket for a couple

 

1239

01:23:20,168 --> 01:23:24,008

episode:

of hours every few years. Let's sit down. We're going to shut the door.

 

1240

01:23:24,268 --> 01:23:28,728

episode:

Let's talk about mortality. Let's talk about what's going to happen if you lose each other.

 

1241

01:23:29,028 --> 01:23:30,968

episode:

Heaven forbid you lose your kids.

 

1242

01:23:31,288 --> 01:23:34,008

episode:

What happens if one of your kids dies before you? What about this?

 

1243

01:23:34,088 --> 01:23:36,508

episode:

What about that? What if they separate? Let's talk about all the things that

 

1244

01:23:36,508 --> 01:23:38,748

episode:

can go wrong. Let's put in some checks and balances.

 

1245

01:23:39,068 --> 01:23:42,488

episode:

And so when you walk out of here having the file done and closed,

 

1246

01:23:42,788 --> 01:23:47,628

episode:

at least you know that, well, the consequences, the financial consequences of

 

1247

01:23:47,628 --> 01:23:52,668

episode:

my death and the process of my passing, I've exerted a degree of will over and,

 

1248

01:23:54,128 --> 01:23:55,528

episode:

they're as certain as they can be.

 

1249

01:23:55,708 --> 01:24:00,188

episode:

And I can put it in the too hard basket again now with a jumping out,

 

1250

01:24:00,288 --> 01:24:03,308

episode:

with an alarm for two years time and we'll retweak it.

 

1251

01:24:03,408 --> 01:24:07,028

episode:

So, it's just about that. It's about taking it out of the too hard basket and

 

1252

01:24:07,028 --> 01:24:10,268

episode:

then putting it back in for a year or too. That's what I see my job as sometimes.

 

1253

01:24:12,546 --> 01:24:17,326

episode:

I like that analogy quite a lot. Now, Greg, tell me about superannuation.

 

1254

01:24:17,646 --> 01:24:22,926

episode:

Is that something covered in the will or is it separate? How does that work?

 

1255

01:24:23,506 --> 01:24:29,826

episode:

Okay. So, yeah, superannuation are assets that are owned in a superannuation trust.

 

1256

01:24:29,966 --> 01:24:34,206

episode:

So, superannuation is just a special type of a trust that attracts some pretty

 

1257

01:24:34,206 --> 01:24:35,986

episode:

good government tax benefits.

 

1258

01:24:36,206 --> 01:24:39,906

episode:

So, anytime you've got money in a trust like a family trust or a superannuation

 

1259

01:24:39,906 --> 01:24:42,906

episode:

fund, not automatically covered by your estate.

 

1260

01:24:43,246 --> 01:24:47,706

episode:

The way that I describe it is that when you die, the trust keeps going.

 

1261

01:24:47,826 --> 01:24:51,746

episode:

You don't own the assets at the date of your death. The trust owns them,

 

1262

01:24:51,786 --> 01:24:53,126

episode:

and the trust keeps going.

 

1263

01:24:53,266 --> 01:24:56,626

episode:

Now, with super, there are some pretty strict rules about getting the money

 

1264

01:24:56,626 --> 01:25:00,806

episode:

out of the trust pretty quickly after death, but the family trust, there aren't.

 

1265

01:25:00,986 --> 01:25:03,886

episode:

With a family trust, the family trust doesn't even know that you're dead.

 

1266

01:25:03,946 --> 01:25:06,546

episode:

You die, and the family trust just keeps going because you're just a passenger

 

1267

01:25:06,546 --> 01:25:09,646

episode:

in the backseat of the car and the trust keeps going.

 

1268

01:25:09,986 --> 01:25:14,686

episode:

With super and with family trust, you have to look at things specifically.

 

1269

01:25:15,086 --> 01:25:20,166

episode:

A simple will is generally not going to be enough for you to be able to work

 

1270

01:25:20,166 --> 01:25:24,386

episode:

out what happens with your super after you die, what happens with your trust after you die.

 

1271

01:25:24,546 --> 01:25:28,146

episode:

You usually have to look at the super deed and do what's called like a nomination.

 

1272

01:25:28,426 --> 01:25:32,466

episode:

You can do a nomination which can be binding, which will require the trustee

 

1273

01:25:32,466 --> 01:25:34,066

episode:

to pay the super in a particular way.

 

1274

01:25:34,206 --> 01:25:37,766

episode:

And there's only a limited number of recipients that you can nominate under

 

1275

01:25:37,766 --> 01:25:42,006

episode:

the superannuation law, or it can be non-binding, which in my personal view

 

1276

01:25:42,006 --> 01:25:45,366

episode:

is just a waste of time because a non-binding nomination is just an expression

 

1277

01:25:45,366 --> 01:25:47,366

episode:

of a wish and it doesn't have to be followed.

 

1278

01:25:47,606 --> 01:25:52,406

episode:

So, if you've got super, and just to wrap this up and give an example,

 

1279

01:25:52,506 --> 01:25:56,866

episode:

if you're someone who's got assets in your own name, you've got super and you've

 

1280

01:25:56,866 --> 01:25:59,906

episode:

got a family trust, and say you've got an asset overseas.

 

1281

01:26:00,366 --> 01:26:02,806

episode:

You're probably going to need a will for your local assets.

 

1282

01:26:03,226 --> 01:26:06,166

episode:

You're going to have to look at your trust deed of the family trust to work

 

1283

01:26:06,166 --> 01:26:09,846

episode:

out what happens to the trust after you go and put some checks and balances in place.

 

1284

01:26:10,246 --> 01:26:13,046

episode:

You're going to have to do a nomination for your super, okay,

 

1285

01:26:13,126 --> 01:26:14,546

episode:

to work out where that's going to go.

 

1286

01:26:14,646 --> 01:26:19,046

episode:

And you're going to have to do a will overseas to work out what happens overseas.

 

1287

01:26:19,266 --> 01:26:21,746

episode:

So, that's the sort of suite of documents that you would need.

 

1288

01:26:21,926 --> 01:26:24,286

episode:

And then if, say, in five years' time, your accountant says,

 

1289

01:26:24,366 --> 01:26:27,446

episode:

oh, let's get rid of the super fund, it's all too hard, then that's when you'd

 

1290

01:26:27,446 --> 01:26:30,106

episode:

come back to see a lawyer and say, we got rid of the super fund,

 

1291

01:26:30,166 --> 01:26:32,106

episode:

so how does that impact on the documents that are left?

 

1292

01:26:32,106 --> 01:26:35,426

episode:

And do we just leave those in place or do we do another, you know?

 

1293

01:26:35,426 --> 01:26:36,366

episode:

So, yeah, good question.

 

1294

01:26:36,426 --> 01:26:38,846

episode:

Super always requires a sort of a second look.

 

1295

01:26:39,566 --> 01:26:46,266

episode:

I think everyone's now rushing to their super documents to see who their nominated beneficiaries are.

 

1296

01:26:47,186 --> 01:26:53,846

episode:

Is there any other advice that you'd like to provide people or encouragement?

 

1297

01:26:55,046 --> 01:26:59,446

episode:

No, look, just generally my business model, and I think it's a business model

 

1298

01:26:59,446 --> 01:27:06,726

episode:

a lot of my colleagues share, is never be worried, embarrassed or concerned about ringing up and,

 

1299

01:27:07,470 --> 01:27:10,250

episode:

speaking to someone like me one-on-one there's lots

 

1300

01:27:10,250 --> 01:27:13,090

episode:

and lots of urban myths don't do the the the doctor google

 

1301

01:27:13,090 --> 01:27:15,970

episode:

the lawyer google thing there's so much misinformation out there

 

1302

01:27:15,970 --> 01:27:18,830

episode:

on the internet use resources like the resource that

 

1303

01:27:18,830 --> 01:27:21,790

episode:

you've created which is well considered which is you know a lot

 

1304

01:27:21,790 --> 01:27:26,570

episode:

of work has gone into and which is is is is a really valuable resource and gives

 

1305

01:27:26,570 --> 01:27:31,370

episode:

accurate and timely information use resources like that or you know get in touch

 

1306

01:27:31,370 --> 01:27:35,670

episode:

email if i get emails you know you don't know me but i just wanted to pick your

 

1307

01:27:35,670 --> 01:27:39,210

episode:

brain on a couple of things i hope you don't mind, we're more than happy to,

 

1308

01:27:39,370 --> 01:27:43,590

episode:

most of the people that are professionals like me, whether it's lawyers or accountants,

 

1309

01:27:43,590 --> 01:27:48,810

episode:

are more than happy to spend time to create a bit of clarity and to demystify,

 

1310

01:27:49,010 --> 01:27:51,430

episode:

particularly in an area like this where there are lots of urban myths,

 

1311

01:27:51,510 --> 01:27:54,750

episode:

you know, the government gets everything if you die without a will, or why do a will?

 

1312

01:27:54,870 --> 01:27:56,890

episode:

They can just be contested. They're a waste of time, you know,

 

1313

01:27:56,890 --> 01:28:01,470

episode:

all of that sort of stuff that has a tiny degree of truth in it,

 

1314

01:28:01,510 --> 01:28:05,230

episode:

but, you know, is only the start of the whole sort of conversation.

 

1315

01:28:05,350 --> 01:28:09,950

episode:

So, I'd encourage Get in touch with people like me or go to reputable sources.

 

1316

01:28:10,310 --> 01:28:13,270

episode:

Government publications, your publication, things like that,

 

1317

01:28:13,270 --> 01:28:18,130

episode:

that are clearly reputable, you know, that have been researched and find out for yourself.

 

1318

01:28:18,290 --> 01:28:22,230

episode:

And then when you've got a list of questions, maybe make a time to see someone

 

1319

01:28:22,230 --> 01:28:25,770

episode:

like me and say, right, well, mum died and we weren't happy with how that went.

 

1320

01:28:25,870 --> 01:28:29,030

episode:

So now we want to get our affairs in order and bang, bang, bang, bang, bang.

 

1321

01:28:29,030 --> 01:28:32,030

episode:

The other thing I'd say is when it comes to all professionals,

 

1322

01:28:32,250 --> 01:28:35,930

episode:

doctors, lawyers, it's a two-way interview process that just because you make

 

1323

01:28:35,930 --> 01:28:40,350

episode:

an appointment with someone, if the chemistry is not there, if the communication

 

1324

01:28:40,350 --> 01:28:42,890

episode:

isn't, then find someone else.

 

1325

01:28:42,970 --> 01:28:46,890

episode:

That you're entrusting – and I don't take it for granted and the people that

 

1326

01:28:46,890 --> 01:28:50,910

episode:

I work with regularly don't either – that you're entrusting us with really important

 

1327

01:28:50,910 --> 01:28:55,570

episode:

stuff and we don't take that for granted and we need to be able to make sure

 

1328

01:28:55,570 --> 01:28:58,310

episode:

you understand what we're telling you and we understand what you're telling

 

1329

01:28:58,310 --> 01:29:00,110

episode:

1. So, it's a two-way interview process.

 

1330

01:29:00,250 --> 01:29:05,390

episode:

Find someone that you can trust and respect and try to keep that person for

 

1331

01:29:05,390 --> 01:29:10,050

episode:

as long as you can because it's a really important asset for you to have moving forward.

 

1332

01:29:11,990 --> 01:29:17,150

episode:

That's great advice. I really appreciate that, Greg. And thank you so much for your time today.

 

1333

01:29:17,550 --> 01:29:21,950

episode:

That's all right. Again, thanks for the opportunity. It's been great talking to you. Thanks, Greg.

 

1334

01:29:22,890 --> 01:29:26,490

outro:

We hope you enjoyed today's episode of Don't Be Caught Dead.

 

1335

01:29:26,490 --> 01:29:28,690

outro:

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1336

01:29:29,090 --> 01:29:33,690

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01:29:33,690 --> 01:29:35,510

outro:

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01:29:35,690 --> 01:29:37,890

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01:29:38,310 --> 01:29:42,650

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01:29:43,190 --> 01:29:47,010

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01:29:47,270 --> 01:29:51,350

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01:29:51,350 --> 01:29:56,890

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outro:

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