Often we are called upon to advise in relation to “Estate planning”. This can take many forms.
Estate planning can constitute the preparation of a Will which provides for the distribution of your property upon your passing. The property can be passed directly to beneficiaries or alternatively, trusts can be created which will hold the property for the benefit of others.
Alternatively, it may be the intention of a party to pass on property before their passing. They are perfectly entitled to do so. In fact, the passing of property to another, who would ordinarily be a beneficiary, can have advantages. The property does not pass to the beneficiary under a Will and would therefore not be the subject of challenge by other persons who could ordinarily have expected to benefit. However, the distribution of property to persons before your passing could be the subject of challenge if there was any allegation that you were suffering undue duress or lacked the legal capacity to undertake the transaction.
There are also other considerations. Property that passes to a beneficiary under a Will does not attract any stamp duty liability. Any property passed prior to your passing would require payment of ad velorum duty calculated on the value of the property that is being passed.
There can be further complications with respect to the transmission of property so far as capital gains tax is concerned. For example, a beneficiary can be exempted from capital gains tax on the disposal of a property that is inherited if it is disposed of within 2 years of the date of the death of the deceased from whom the property was inherited and either the property has been acquired prior to September 1985 or at death, the property was the main residence of the deceased.
For all Estate planning matters Brydens Lawyers can assist. Our Estates Division has experts available to answer all your enquiries and to assist with the preparation of all and any documentation necessary to give effect to your wishes so far as the transfer of property is concerned. For all your legal requirements call Brydens Lawyers today on 1800 848 848 or visit us at brydens.com.au. At Brydens Lawyers #WE DO Estate planning.