Comparing Victorian and Queensland Conveyancing

In Australia, the conveyancing process varies considerably between the different states and territories. Currently in Queensland the adage ‘buyer beware’ rings true, as sellers have comparatively few disclosure requirements. Upcoming property law reforms, however, will shift Queensland away from this model to align the process more closely with southern states.

Grindal Legal’s experience in both Victorian and Queensland conveyancing holds us in good stead to welcome these changes and adapt to Queensland’s new disclosure requirements. This article outlines the major differences between Victorian and Queensland Conveyancing, as well as the future changes that are imminent for conveyancing in the Sunshine state.

	VIC	QLD
ContractPreparation	Contracts are prepared by a solicitor or licensed conveyancer.	The seller’s real estate agent usually prepares the contract. The buyer typically engages a solicitor or conveyancer after the contract has been signed.
Cooling off period	3 days, commencing on the day after the contract is signed by the purchaser.	5 days, commencing on the day the buyer receives a copy of the fully signed contract.
Timing of when are Conditions due	Typically, business day is not a defined term. This means that, arguably, parties have until midnight on the due date to satisfy a condition (subject, of course, to specific drafting). There will generally be a special condition specifying that settlement is required to occur between 3.00PM and 5.00PM on the due date.	Typically, the condition is due by 5:00PM on the due date (which must be a business day).
Nominations	The purchaser has a right to nominate a substitute or additional purchaser to take a transfer of the land. To do this, parties must sign a Sale of Real Estate Nomination Form.	The buyer does not have a right to nominate a substitute or additional purchaser. If the buyer wishes to change parties, then the current contract must be terminated, and a new contract entered into listing the new buyer.
Release of deposit	The vendor may request a ‘Section 27’ early release of deposit, if certain conditions are met.	The deposit is held on trust, usually by the seller’s agent, and is not released until settlement.
Timeframes for settlement	60 – 90 days is common.	30 days is common.
Insurance	The property is at the vendor’s risk up to and including the settlement date.	The property is at the buyer’s risk from 5:00PM on the first business day after the contract date.
Critical dates	Conditions will usually be deemed as satisfied on the due date, if no notice is otherwise provided.Should either party fail to settle on the due date, a Notice of Rescission may be served allowing the party in breach 14 days to remedy.	‘Time is of the essence’. If a buyer fails to satisfy a condition – such as finance or building and pest – by 5:00PM on the due date, the seller has the right to immediately terminate the contract and retain the deposit.
Disclosure Statements	Extensive requirements including disclosure of material facts and a Vendor Statement (also known as a Section 32 Statement) must be provided to the purchaser prior to the contract being signed by the purchaser.	The buyer is required to make its own enquiries and undertake due diligence in relation to the property prior to signing the contract. Unless a special condition is inserted into the contract, property searches are conducted after the contract becomes unconditional.
Language	Contracts refer to ‘Vendor’ and ‘Purchaser’. Further, the statement providing the breakdown of adjustments for settlement is known as a‘Statement of Adjustments’.	Contracts refer to ‘Seller’ and ‘Buyer’, and the statement of adjustments is referred to as a ‘Settlement Statement’.

Upcoming Reforms

The new Property Law Act 2023 (Qld) (the Act) will introduce necessary changes to Queensland’s conveyancing process, amongst other updates, and will replace the outdated Property Law Act 1974 (Qld). One of the most significant reforms is the introduction of Disclosure Statements. Whilst the details of the substance of these statements will be clarified in regulations yet to be passed, the implications are beginning to take shape.What we do know is that the Disclosure Statements must be provided to the buyer before they sign a Contract of Sale. The Disclosure Statement must be signed by the seller, and the information provided must be current at the time it is provided. If the property is sold at auction, the Disclosure Statement must be signed and provided to the buyer before the auction commences. Parties are unable to contract out of these requirements.

Content of the Disclosure Statement

The prescribed certificates and information likely to be included in the Disclosure Statement are:

• A copy of the title search;
• A copy of the plan;
• A copy of the notice as prescribed in s47 of the Queensland Building and Construction Commission Act 1991 (if required);
• Copies of any notices or orders by a competent authority requiring work to be done or money to be spent in relation to the property;
• A pool compliance certificate (if applicable);
• A copy of the community management statement and body corporate certificate (if applicable);
• Information on the zoning of the property;
• Whether the property is recorded on the environmental management or contaminated land register;
• Information about the rates and water services for the property (including the amounts payable);
• Whether the property is affected by transport infrastructure proposals, heritage interests, or notices from the State or Commonwealth of intention to resume the lot.

The disclosure of further information about the property and certificates will provide significantly more information to buyers than is currently the case. The recommendation remains, however, that contracts are subject to satisfactory building and pest reports. The draft Regulations, in its current form, does not require sellers to disclose pest infestations or information on the structural soundness of the building/improvements on the land.

The seller must ensure that the disclosed information is accurate at the time the Disclosure Statement is signed, with significant penalties for non-compliance including fines and post-settlement compensation. The buyer also has the right to terminate the Contract of Sale at any time before settlement if the seller fails to satisfy its disclosure obligations.

Exceptions

Under the new Act, a Disclosure Statement does not need to be provided if:

• The buyer and seller are related;
• The buyer waives its right before it signs the contract;
• The buyer is a government agency;
• The seller is Brisbane City Council in certain situations; and
• The transfer is due to someone’s death or in accordance with a Will.

The commencement date of the Act is yet to be announced. We eagerly await the arrival of these reforms and its impact on the Queensland conveyancing process.

Disclaimer: This article does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

It is common for trusts to own real estate as a means of asset protection. As circumstances change, the trustees may decide to transfer the real estate to one or more beneficiaries of the trust. Typically, any transfers of real estate are subject to land transfer duty unless an exemption applies. Section 36A(1) of the Duties Act 2000 (VIC) (“the Act”) provides that no duty is chargeable in respect of a transfer of a dutiable property that is subject to a discretionary trust to a beneficiary if certain statutory requirements are met.[1]

Perhaps the most litigated issue in relation to this stamp duty exemption is s 36A(1)(e); ‘the Commissioner is satisfied that the transfer is not part of a sale or other arrangement under which there exists any consideration for the transfer’. Consideration being the key word here. However, what is constituted to be consideration? Unfortunately, the Act fails to provide a comprehensive definition of consideration; it merely states that consideration may be monetary or non-monetary. Over the years, case law has widened the scope of what constitutes ‘deemed consideration’. However, what remains consistent, is that the State Revenue Office generally takes a wide view of what is ‘consideration’.

What is Consideration?

Broadly speaking, consideration is any amount provided, whether monetary or non-monetary, for the purposes of facilitating a contractual transaction.

There is a common misconception that where a transfer from a discretionary trust to a beneficiary is concerned, only instances where the beneficiary is providing something in exchange (such as money) for the property will be noted as consideration. However, several transactions between the trust and beneficiaries are held to be ‘deemed consideration’ and will not satisfy the s36A(1)(e) requirement.

Deemed forms of consideration

It has been widely accepted that the following examples may be captured as deemed consideration:

1.    Beneficiary Loans

There has been extensive case law on the forgiveness of beneficiary loans as deemed consideration under s 36A(1)(e). This is relevant where the trustees of the trust have borrowed money from the beneficiaries, and this is listed as a liability of the trust. Subsequently, upon the distribution of property to the beneficiaries, the loan is forgiven, and the trust no longer carries this liability.  A recent case that discussed this issue was Baullo v Commissioner of State Revenue [2023] VCAT 1164 (“Baullo”).

The Baullos were the trustees and beneficiaries of the J.T. Family Trust (“the Trust”). The Baullos purchased a property in Pascoe Vale South in their personal capacities, and subsequently transferred the property into the Trust. The purchase price was partially funded by a loan from the beneficiaries. Upon the Baullos, in their capacities as trustees under the Trust, deciding to transfer the property to themselves in their capacities as beneficiaries, the loan was extinguished.

There was no express evidence or documentation that stated the debt was forgiven, however VCAT looked to the financial statements of the Trust to determine that the beneficiary loan was no longer listed as a liability following the transfer. This forgiveness of the loan was deemed to be consideration and the Baullos were unable to receive the s36A(1) duty exemption.

2.    Mortgage Liabilities and deficit of trust

Property that is subject to a registered mortgage may also be an issue when applying for this exemption. This is because the repayment of such mortgage liability immediately prior to, or in connection with, the transfer of real estate from the trust to the beneficiary may be construed as consideration. It is important to note however, that the refinance of a mortgage by the beneficiary whom is to receive the property, for the same or a greater amount than what was secured against the property prior to the transfer, is not necessarily fatal. The primary issues to be considered with the discharge of a mortgage liability are as follows:

a)    if the mortgage is not refinanced and instead discharged by the trust prior to and in connection with the transfer, will the trust be placed into a technical deficit in which the trust does not have sufficient equity to discharge its obligations?

b)    if the mortgage is to be refinanced by the beneficiary, will it be for an amount that is less than the amount secured prior to the transfer.

If the answers to the above questions are yes, then this will likely be problematic in securing the duty exemption.  The State Revenue Office will review the last three financial statements for the trust to ensure that the trust has sufficient equity once the property is transferred out to the beneficiary, to discharge the remaining liabilities of the trust. Transfers of property that put the trust into a technical deficit, are typically denied by the State Revenue Office.

3.    Unpaid Present Entitlements

The forgiveness or wavier of Unpaid Present Entitlements (“UPEs”) can also be problematic when applying for this exemption, as the State Revenue Office may constitute the forgiveness of such UPE as consideration.  Caution must be had to the forgiveness of UPE’s and the timing of such forgiveness, to not preclude the transfer from being assessed as non-dutiable. If the forgiveness of UPE occurs in connection with the transfer and to avoid the trust being in a technical deficit on the rollout of the property to the beneficiary, this can be fatal to the success of the duty exemption application.

4.    Proceed with Caution

It should never be assumed that a transfer from a trust to a beneficiary will result in a duty exemption. Considering the financial statements for the trust and its liabilities to determine whether the trust will consist of sufficient equity to meet its liabilities once the relevant property has been rolled out to the beneficiary of the trust, is an essential first step in the assessment of the applicability of the s36A duty exemption.  It may be that a strategy needs to be formulated around the timing of the transfer and the management of any ‘deemed consideration roadblocks’ to avoid the imposition of a duty assessment. If you believe you are eligible for a s36A duty exemption, we encourage you to contact our team who can advise you further in this regard.

[1] S36A(1) Duties Act 2000 (VIC).

Disclaimer: This article does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Did you know that on 3 October 2023, the Victorian Parliament introduced the State Taxation and Other Acts Amendment Bill 2023 (Bill)? If passed, this legislation would make significant changes to Victoria’s taxation laws – in particular, land tax, windfall gains tax and vacant residential land tax, as well as how these are treated in property transactions.

Here’s what you need to know.

What are these changes?

The Bill includes various substantive and procedural amendments to Victoria’s taxation and valuation system, with some of the key changes highlighted below:

A Vendor’s land tax and assessed windfall gains tax cannot be passed onto a Purchaser upon settlement of the sale of land[1]

Overview

It is current standard practice to apportion the land tax assessed over the property (and, more recently, windfall gains tax) at settlement between the parties. The Vendor is responsible for land tax from 31 December to the day of settlement and the Purchaser is responsible from the date of settlement whether or not they would have been personally liable.

This Bill proposes that both the Property Law Act 1958 (Vic) and the Sale of Land Act 1962 (Vic) be amended to both exclude land tax from being apportioned on settlement under a contract of sale of land, and to prohibit the inclusion of assessed windfall gains tax in both contracts of sale of land and options to purchase land. Any contractual provisions to the contrary will be void, and penalties shall apply.[2]

What does this mean for me?

For vendors, this means that all of your land tax and assessed windfall gains tax must be paid in full before settlement – regardless of where it falls within the calendar year. Vendors and purchasers will still be able to apportion any windfall gains tax before an assessment has been issued by the State Revenue Office. The extent of any financial burden incurred as a result of this change should be discussed with an accountant or financial advisor.

That means – you guessed it – purchasers will not be required to pay any apportionment for the vendor’s land tax or assessed windfall gains tax. However, those looking to buy in the future should be prepared for both an increase in property prices and settlements taking place later in the year, due to vendors seeking to account for the amount lost as a result of their land or assessed windfall gains tax liability.

The Bill does not currently include any transitional provisions – that is, whether these changes apply if you have signed a contract of sale prior to 1 January 2024 with settlement due after 1 January 2024.

Vacant residential land tax (VRLT) shall apply to all vacant residential land in Victoria[3]

Overview

Currently, VRLT only applies to vacant residential land in specific Melbourne City Council areas. If applicable, registered proprietors are liable to pay 1% of a land parcel’s total capital improved value (in addition to any existing land tax) to the State Revenue Office. Residential land is categorised as ‘vacant’ if uninhabited for more than 6 months in the preceding year.

This Bill proposes that the Land Tax Act 2005 (Vic) be expanded to have VRLT apply to all vacant residential land in Victoria, effective 1 January 2025. Accordingly, categorisation of vacant land will begin to be assessed after 1 January 2024.

What does this mean for me?

Registered proprietors of Victorian vacant residential land will be required to pay 1% of their land’s total capital improved value to the State Revenue Office on top of their regular land tax in 2025. Typical exceptions to VRLT still apply to this land.

Extension of corporate reconstruction and consolidation provisions to sub-sale transactions[4]

Overview

Currently, the ‘sub-sale’ provisions of the Duties Act impose double duty where a person enters into an option or contract to purchase land, another person (e.g. a nominee) subsequently becomes entitled to take the transfer of the land, and ‘land development’ has occurred or additional consideration is paid.

The proposed amendments extend the application of the corporate reconstruction and consolidation concessions to apply to sub-sale transactions between members of the same corporate group.

What does this mean for me?

The sub-sale provisions can have significant adverse consequences for parties undertaking ‘land development’ activities (interpreted broadly) prior to nominating a related entity under a contract for land. These amendments appear to address the unintended consequences of these provisions, permitting eligible parties to apply a 90% discount to duty otherwise payable.

Where are we now?

At the date of this post, the Bill has passed the Legislative Assembly and has been read for a second time in the Legislative Council (the upper house of Victoria’s Parliament). The Bill would typically be examined in detail before being read for a final time and then presented to the Governor for Royal Assent, which could still be some weeks away. Some provisions of the Bill come into operation on the day after it receives Royal Assent, whereas others have a set commencement date.[5]

You can follow the status of this Bill and any amendments via this link: https://www.legislation.vic.gov.au/bills/state-taxation-acts-and-other-acts-amendment-bill-2023.

In the meantime, vendors, purchasers and registered proprietors alike should consider their property plans or arrangements with an accountant or financial advisor in anticipation of the Bill being approved by Victorian Parliament. Legal practitioners should endeavour to update their contract of sale precedents and risk management measures in order to prevent any penalties being imposed on their clients.

References: [1] Section 15 of the Bill. [2] Section 16 of the Bill. [3] Section 25 of the Bill. [4] Sections 4-7 of the Bill. [5] Section 2 of the Bill. Disclaimer: This article does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Did you know that a Will is not always capable of dealing with all the assets that you own or control? There is a common misconception that executing a Will guarantees that all your assets will be distributed according to your final wishes. A Will, however, only covers the assets or interests you own personally in certain circumstances. This can include real estate, personal bank accounts, personal belongings, intellectual property, digital assets and even pets!

Assets that are typically not covered in your Will are those that are subject to specific legal rules and regulations and include:

1. Assets Held Jointly: If you own property or assets jointly with another person as joint tenants, these assets will generally pass to the surviving joint owner and not via your Will;
2. Superannuation Funds: Your superannuation benefits, including any death benefits, are generally not controlled by your Will. You should nominate beneficiaries of such benefits through your superannuation fund provider or via a binding death benefit nomination. If you intend for your Will to direct how your superannuation death benefits are distributed, then you can consider nominating your Legal Personal Representative as your nominated beneficiary;
3. Insurance Policies: The proceeds from your life insurance policies, such as a death benefits, pass directly to the nominated beneficiaries listed on the policy and do not pass through your Will. To bring the proceeds of your policy into your estate, you can consider nominating your Legal Personal Representative as your beneficiary;
4. Assets Held in a Trust: If you have established a trust, the assets held in that trust are managed and distributed according to the terms of the trust deed and do not form part of your estate for distribution via you Will. Your Will however can play an important role in determining who will stand in your shoes as controller of this trust on your death. A review of the trust deed is usually required to determine what happens following the death of an appointor and/or trustee of a trust and to make sure the trust deed does not contradict the directions made in the Will;
5. Property Held in a Company: If you own shares in a company that holds property, the ownership of those shares may pass according to the company’s constitution or shareholders’ agreement rather than your Will; and
6. Assets Subject to Foreign Jurisdiction: If you own assets in other countries, they may be subject to the laws and regulations of those countries, which could impact their distribution.

If you are concerned about the future of the assets you hold in one of the above structures, we encourage you to contact our Wills and Estates team who can advise you further on how these important assets and structures can be considered and dealt with as part of your estate plan to give you peace of mind.

Disclaimer: This article does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

New regulations could see non-compliant pool and spa owners being faced with costly fines

The Victorian Government recently implemented Part 9A into the Building Regulations 2018 (Vic) which mandates that all pool or spa owners (“an Owner”) must register their pool or spa with their local council. Additionally, pool and spa owners are now required to lodge a certificate of barrier compliance with their council every four years. Failure to comply with the regulations can result in fines.

WHAT ARE THE REGULATIONS?

• All pools or spas capable of holding water of a depth of greater than 30cm are required to be registered with the local council.
• This includes relocatable pools or spas that are capable of holding water of a depth of greater than 30cm.
• An Owner must obtain a certificate of barrier compliance from a building surveyor or building inspector (pool safety) and lodge it with the local council.
• Every four years an Owner must lodge a new certificate of barrier compliance with the local council.
• The construction date of a pool or spa will determine which of the three current barrier safety regulations will apply:

1. Before 8 April 1991.

2. Between 8 April 1991 to 30 April 2010.

3. After 30 April 2010.

BARRIERS

The Victorian Building Authority identifies that barriers are required for the following:

• In ground and above ground pools and spas;
• Indoor spas and pools;
• Relocatable pools capable of holding water of a depth of greater than 30cm; and
• Bathing and wading pools and spas capable of holding water of greater than 30cm.

The Victoria Building Authority identifies that barriers are not required for:

• Inflatable pools that are not capable of holding water to a depth of greater than 30cm;
• Dams;
• Fish ponds;
• Water fountains;
• Bird baths; and
• Baths and spas used for personal hygiene that are emptied after each use.

DEADLINES FOR REGISTRATION

In order to avoid incurring costly fines, an Owner must register the pool or spa by the below dates.

Permanent pools and spas:

• If a pool or spa was constructed before 1 June 2020 – final date for registration is 30 days after the date of issue of the Occupancy Permit or Certificate of Final Inspection or 1 June 2020.
• If construction of a pool or spa commenced before 1 June 2020 but is completed after 1 June 2020 – final date for registration is 30 days after the date of issue of the Occupancy Permit or Certificate of Final Inspection.
• If a pool or spa is constructed after 1 June 2020 – final date for registration is 30 days after the date of issue of the Occupancy Permit or Certificate of Final Inspection for the pool or spa.

Relocatable pools and spas:

• If erected before 1 June 2020 and remains erected for at least 3 consecutive days immediately before 1 June 2020 – final date for registration is 4 June 2020.
• If erected on or after 1 June 2020 for 3 consecutive days – final date for registration is on the fourth day the pool is erected.

STEPS THAT YOU NEED TO TAKE

1. Contact the local council for information on how to register a pool or spa and the applicable fees.
2. Register the pool or spa with the local council before the deadline.
3. Engage a building surveyor or building inspector (pool safety) to inspect the pool or spa safety barrier.
4. Obtain a certificate of barrier compliance, lodge it with the local council and pay the fee within the required time frames.
5. Diarise to have the pool or spa barrier inspected every four years.

If you would like to discuss the above with us, then please feel free to contact Emily Story at Grindal Legal on (03) 9110 3904.

Disclaimer: This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

Between teaching my elderly father how to FaceTime, keeping the kids occupied, and working from home, I think it’s safe to say that, like many of you, we are all learning how to juggle our priorities on a whole new level. While we are adapting to our new way of life, this turn of events has given me time to reflect on what measures my family has in place to support us through illness, disability, or death.

While no one likes to think about these things, it’s often not until it’s too late that you realise you might not have the right protections and measures in place for you, your family or your business. So now might be the right time to reflect on your estate and financial planning to ensure that you have everything in order.

Here’s four things you should consider taking action on now to give yourself peace of mind

1. Wills

A well-drafted will is the most effective way to ensure your legacy is secure and your final wishes are met. In its simplest form, a will dictates how your estate (e.g. bank account balances, real property, shares) is distributed upon death. You may choose to distribute your estate to one person or several – each of you will have a very different set of circumstances that need to be addressed. As well as drafting the will, general estate planning can include a review family trusts or business structures, the implementation of testamentary discretionary trusts, asset protection planning, and superannuation succession planning. You may wish to review your will and estate planning requirements to ensure they reflect your current circumstances – for instance, you may have a new partner or recently had a child or you may now have an SMSF at which time you may need to consider completing an update.

2. Enduring Power of Attorney

An Enduring Power of Attorney allows you to appoint another person (the attorney) the power to make decisions in relation to your personal, financial and legal affairs. It is enduring in the sense that the attorney’s authority to act on your behalf continues even when you are unable to make those decisions for yourself. In the absence of any limitation contained in the document itself, the power is exercisable once it is made and accepted by your nominated attorney. It is important to appoint an attorney to ensure that you decide who will look after your affairs if your circumstances are such that you require your attorney to manage your financial affairs on your behalf.

3. Appointment of Medical Treatment Decision Maker

An Appointment of Medical Treatment Decision Maker allows you to appoint another person (the decision maker) to make medical decisions on your behalf in case you lose capacity to do so. It grants your decision maker with the authority to liaise with your medical practitioner in relation to your medical requirements and general care. Again, it is important to appoint a decision maker to ensure that you decide who will make these important health care decisions when you no longer can.

4. Financial Planning

Financial planning can help you determine your short and long-term financial goals; it can help you focus the way you manage your money and time on reaching your financial goals so that you can do the things that really matter to you in life. A good financial plan can assist with managing your income (e.g. money you need to set aside for tax payments, expenses, savings), budgeting, cash flow, financial security, and also investment for you personally or your SMSF, if applicable. If you don’t have a plan in place and you would like to re-evaluate your financial needs, this might be something a qualified financial planner can assist with.

Perhaps it is the case that you already have your estate and financial planning documents in place. If so, now might be the time to review those arrangements to ensure they are in accordance with your wishes, as your circumstances may have changed since they were finalised. Your lawyer or financial adviser will be able to provide you with scanned copies of your documents for your review.

If you require certified copies of such documents to action any requests (e.g. medical or financial), your lawyer will be able to assist you with providing the certified copies via post or courier. Given the current circumstances, some law firms and financial advisers may be limited in what they can provide so touch base with them to see what is available to you.

If you don’t have these documents in place, and you think they may help give you some peace of mind and protection, make sure you speak to your wills and estates lawyer or financial adviser.

Disclaimer: This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

For those of you who have been wondering whether you need a Will, this guide will assist by helping you to determine whether your unique set of circumstances means that you should consider having a Will prepared. Anyone over the age of eighteen is eligible to have a Will so, whether its factors such as property or children, now might be the right time to look into the benefits of having a Will.

So, why do I need a Will?

Put simply (and bluntly), a Will sets out how your assets are to be distributed on your death. Contrary to popular belief, Wills are not just for those in or nearing retirement. Having a Will can be just as relevant to a young professional with a superannuation balance or a couple with children and a mortgage as it is to a retiree with a significant investment portfolio. We all have a unique set of ‘life circumstances’ and each of these can be catered for. Having a Will in place when you die means that you have a say in the following decisions:

• Who will benefit from your estate and how your assets are distributed.
• Who will manage and make final decisions about your estate.
• Who will act as guardians of your minor children.
• Who will act in a position of control of your family trust or company.

The absence of a Will could mean that your estate may take longer to settle and the costs to finalise your estate may be higher, therefore impacting any distributions you may wish to make to loved ones.

Allocating and dividing wealth may be the central focus of your Will but, as highlighted above, these documents go beyond this to assist you in decision making and dealing with any issues of control. Importantly, Wills can also specify your preferred funeral arrangements and nominate who takes possession of family heirlooms and sentimental items. Even the instructions for the care of your pet can be included!

If I don’t own much, do I still need a Will?

Often people think that they don’t own enough assets to make it worthwhile having a Will prepared. Whilst this may be the case for some, it would be a minority of people who would fit into this category. To assist you in identifying whether it would be beneficial to have a Will, please consider how you would respond to the following questions:

• Do you have minor children?
• Do you own real estate, such as your family home (even if mortgaged)?
• Do you have superannuation entitlements?
• Do you hold a controlling role in a family trust (as an Appointor or Trustee)?
• Have you loaned a child money and need this to equalised amongst your other children on death?
• Do you have a blended family structure and need to account for children/ step children and a second spouse?
• Have you recently become separated or divorced?
• Do you have a child with special needs, or a child who may need some asset protection strategies in place to deal with a possible future matrimonial dispute or bankruptcy?

If you answered yes to any one or more of the above questions, you should strongly consider having a Will prepared. Your Will can address each of the above matters and ensure that your assets pass to those you intend and in the proportions in which you nominate. A Will also allows you to nominate those who will succeed you in any controlling role you may have in a trust or company structure. Furthermore, a testamentary trust Will can also include asset protection mechanisms for vulnerable beneficiaries to ensure that they are well-looked after.

Time is of the essence

Wills are intended to be a roadmap left behind for loved ones to use as a guide on what to do next. Whether you’re a parent of minor children, recently divorced or the owner of property or shares, having a Will in place can provide you with security and peace of mind. As we all know, life can be unexpected; we can be hit with curveballs that we don’t see coming. Don’t wait until that curveball arrives before embarking on your will-making journey; it can be much more simple and rewarding than you think.

Disclaimer: This article does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.