Pre-nup Overruled On ‘Needs’ Basis
The High Court of England & Wales has nullified a pre-nuptial agreement between a wealthy heiress and her impecunious husband, because the now ex-husband needs GBP1.2 million to re-house himself.
The wife (Victoria), is the 36-year-old daughter of a wealthy businessman, and she had already been given a house by her parents when she married her husband (Francesco) in July 2005.
Even at the time, Victoria’s father thought Francesco was marrying her just for her money. So her father insisted that they sign a pre-nuptial property agreement to protect Victoria’s money and the assets which her father planned to give her on her marriage. The agreement stated that Victoria’s separate property and family gifts shall remain hers and Francesco shall not make any claim on them.
There was also a reciprocal clause that Victoria would make no claim against Francesco’s separate property, except that it did allow her to pursue him for maintenance if the marriage broke up. Francesco was allowed no such right. This clause proved significant in the subsequent divorce settlement, as it showed (according to Francesco’s lawyers) that the agreement was unfair to him – even though he had had independent legal advice before signing it.
Estate Planning for Farmers in South Australia
How many horror stories have you heard about farming families getting torn apart when the farm-owner dies? In my work as a lawyer specialising in estate planning and probate, I’ve heard quite a few.
They often have a common theme – where a relative (typically a younger son) worked for low wages on the family farm for years, with the expectation that the property would be passed on to them after the owner’s death.
There is a sense of expectation & entitlement – of having earned their inheritance – often fuelled by a lack of discussion or planning by the old owner. Unfortunately, this scenario frequently creates significant problems within the family, especially if there is more than one child wishing to benefit from the farm. Often the farmland and the business it supports are the major assets of the deceased estate. It can be difficult enough to generate a decent income from the whole – breaking up the farm to give every child a share may mean that the family farming business cannot continue to be viable.
Wills and Estate Planning Adelaide: Estate Planning for Children with Special Needs
Most parents of disabled children worry about the day they won’t be around to help care for them, whatever their age. They want to help them qualify for government (state or federal) assistance for medical and other services, and also to provide for their recreation, clothing and other small luxuries that improve the disabled person’s quality of life.
The difficulty for these parents, is in trying to grapple with the too-hard decision of who will look-after their children after the parents have gone. Many cannot overcome this emotional-paralysis, and simply hope against hope they will live just slightly longer than their child, so that neither parent nor child ever have to deal with the situation.
The reality is that most disabled children outlive their parents, so providing for their care after the caregiver’s death is a vital issue. If the parent simply leaves money for the child, it could disqualify the child for government assistance, but still not provide properly for the child’s special needs.
A special needs trust may present a solution. A lawyer specialising in the legal needs of the elderly and disabled, can help the parents or other family members to set up a trust. With careful planning (both legal & financial), the assets may not be taken into account by the government when assessing the child’s entitlement to assistance, but distributions from the trust are used to provide greater comfort & independence for the child.
In this way, even after the parents have died, they can continue to care for their children. This can assist children with a variety of disabilities, including Down syndrome, autism, cerebral palsy, the aftermath of vehicle accidents, chronic diseases or anyone who may need a combination of government and private services to provide a good quality of life.
Wills and Estate Planning Adelaide: How Estate Planning Trusts Can Protect You and Yours
Estate planning and trusts are all about planning, not only for your own future, but also the financial well-being of your family and loved ones after you’re gone. However, the reality of life can often get in the way of a smooth transition – divorce, second marriages, step kids, long-term illness and other family changes can sometimes make life and plans unpredictable.
Protecting your wealth & assets and the financial well-being of your family is about a lot more than simply parcelling-out your assets – it’s about providing for yourself & your family members in a way that’s responsible and specifically addresses your personal situation.
Many people make the assumption that estate planning and trusts are only for incredibly rich people. That is wrong.
A family discretionary trust is a very versatile estate planning tool that allows you to address inheritance goals for your beneficiaries – who may still be children, are disabled, are from a mixed family – and a trust might be the answer to difficult questions like who will manage your assets if you or they become incapacitated.
Typically, when a child inherits money, it is invested for him and held until he or she turns 18 or older. Of course, giving a young person access to a large amount of money at the age of 18 can be dangerous and detrimental to their long-term financial health if they lack maturity or sufficient financial wisdom. Some parents think that the lure of fast cars and endless parties may be too great a temptation for their beneficiaries to handle at age 18, and so they specify an older age, frequently 21 or 25.
Wills and Estate Planning Adelaide: Estate Planning for Illness and Incapacity
Millions of Australians live with chronic illness or disabling injury. Many more will develop progressive and degenerating diseases of the mind and body. With so many facing life with such severe challenges, smart estate planning can make the difference between maximising control over your life or falling victim to it.
How should they plan their estate to maximise their freedom, independence & quality of life?
What impact will your chronic illness have upon your health & mobility, your capacity & cognitive functioning? How might this change over time? How do you protect yourself from its effects?
Each chronic illness, whether dementia or senility, Multiple Sclerosis or Parkinson’s disease, Alzheimer’s disease or ALS, diabetes or cancer – has its own unique implications for planning. One-size-fits-all generic assumptions can be detrimental to you and your loved ones.
You should consult a lawyer who specialises in estate planning in Adelaide, preferably one with experience in dealing with the special needs of disabled & incapacitated people.
Your lawyer will discuss with you a variety of legal documents. These may include Enduring Powers of Attorney, and how they may be tailored to address your concerns.
Other documents may include Medical Powers of Attorney (sometimes called living wills or health proxies), Advanced Directives, and Discretionary Trusts.
Your lawyer can draft legal documents to protect you in the context of your chronic illness, and to address the anticipated course of your illness.
Wills and Estate Planning Adelaide: Even More Reasons to Create an Estate Plan Now
Some people think that estate plans are for someone else, not them. A common misconception is that estate planning is only important for the wealthy or elderly. They may rationalise that they are too young or don’t have enough money to reap the benefits of a plan. But here are some more reasons why estate planning is for everyone, regardless of age or net worth.
- Loss of capacity. What if you become incompetent and unable to manage your own affairs? Legal, medical and lifestyle decisions will need to be made for you, but without a plan the courts will have to select the person to manage your affairs. With an integrated estate plan in place, you choose that person, through a careful combination of powers of attorney and advanced directives.
- Minor children. Who will raise your children if you die? Although a court will make the final determination, you are able to nominate the guardian of your choice in your Will, and the court will give very serious consideration to your wishes.
- Dying without a Will (intestate). Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state’s laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With an integrated estate plan, you decide who gets your assets, and when and how they receive them.
Estate Planning for Every Business Owner
Every business owner needs some basic estate planning documents, even if you are not married, have no-one financially dependent upon you, or your business is not worth much yet. You should consider the potential value of your business, and recognise that it is dependent upon you If you have a spouse, life partner, or children, you definitely need to consider estate planning documents to provide for what would happen if you die or become incapacitated.
Here are the documents you may need to obtain:
Enduring Power of Attorney
This document gives another person power (your agent) to handle your finances in your absence. This may include paying your bills, negotiating a lease, dealing with employees, contractors & government departments, or working with your bank. You can give your agent power immediately or only upon your incapacity.
Medical Power of Attorney
Everyone age 18 and over should have this document. It names & empowers the person you want to make medical decisions for you, if you cannot do it for yourself. Do yourself & your loved ones a BIG favour, and create this now.
Will
Your Will says who you want to receive your assets after you die, who should handle your affairs upon your passing, and who you want to be a guardian for your children. This must be formally executed to be valid, typically with 2 witnesses, depending upon state law. Everyone should have a Will.
Other Documents
Some of you may need other documents, such as discretionary trusts, property agreements, co-habitation agreements, pre-nuptial agreements, irrevocable trusts, special needs trusts, superannuation trusts or life insurance trusts.
Asset Protection – Be Smart, Be Safe
Protecting your assets is one of the most important financial decisions you will ever make. Asset protection is a valuable and important part of a modern integrated estate plan. No matter how many assets you have, you should make an effort to protect them, but try to avoid these common mistakes:
1. Lack of Knowledge
Lots of people misunderstand how asset protection works. Some people believe asset protection makes them “judgment proof.” Even if your assets are protected, you may still cop an adverse court judgment. In some cases, efforts you have made to protect your assets can be overturned. This is why it is important to work with a professional when creating your protection plan.
Don’t make the mistake of assuming asset protection and estate planning are the same thing. Asset protection is part of any strong estate plan but they are not the same thing. Some trusts do nothing to protect you from creditors, and Family Court issues can interfere with the best-laid plans.
Don’t make the mistake of confusing bankruptcy law and asset protection law. In a state like South Australia, newer bankruptcy laws do not prevent the “clawing back” of assets you may have tried to unsuccessfully protect. You have less protection in bankruptcy court, so filing for bankruptcy should be used as a last resort.