I always find it interesting when I attend a budget committee meeting and the committee expresses to me their disappointment ….
If you’re like most Australians contemplating a trip overseas, it’s likely you’re going to forget to take care of 2 fundamentally important things, that if not addressed can have a catastrophic impact upon your family.
In this video, OMB Solicitors, Steve Mahoney lets you know what they are and what to do about it.
It’s human nature to refuse to accept the obvious – nothing is more certain than death and taxes. Making a Will isn’t morbid – it is the only way to protect hard earned assets.
Most people wouldn’t leave their car door open with a wallet displayed on the front seat. Few people leave their homes open so thieves can help themselves but many people leave their estate wide open to claims. A valid will ensures assets go to those who are near and dear. The absence of a Will leaves the estate open to claims from all and sundry and this includes the taxation office.
There is no legal obligation to make a will, but it is the smart option. Without a Will, assets can be distributed by anyone to anyone. When people die without leaving a will, assets are distributed according to a legal formula.
The process applies to financial assets, property, and may determine the guardian of children under 18 years of age. Avoid creating ongoing hassles and legal wrangles by preparing an estate plan. This usually means writing a straightforward will and an enduring power of attorney.
Enduring power of attorney offers protection if an accident or a medical condition prevents people handling their own affairs. An executor is appointed to ensure a will is followed to the letter. Power of attorney allows a trusted person to deal with financial and legal affairs of another.
A will can be relatively straightforward or a complex legal document incorporating protective clauses and tax effective structures such as testamentary discretionary trusts (TDTs). TDT’s are not for everyone, but can be very advantageous.
TDT’s may offer tax advantages and protect assets involved in Family Law Court proceeses or creditors threatening bankruptcy.
TDT’s also protect spendthrift beneficiaries from themselves and ensure ongoing care for children, grandchildren and mentally disabled beneficiaries.
Legal advice is recommended when making a will. It is essential to cover all likely eventualities, choose an executor to administer the estate; appoint the guardians of children, list assets and liabilities (individual, jointly owned or placed in a trust), name beneficiaries, show how assets should be distributed and make provisions for the future of any children.
Recent legislation allows people to place large proportions of their wealth into superannuation.
Superannuation is not always distributed according to a person’s will because the asset is controlled by the trustee of the superannuation fund. This is not usually the executor of the estate.
The superannuation fund trustee may decide who receives the proceeds of the fund. This is an important estate planning issue.
O’Keefe Mahoney Bennett Solicitors has almost 40 years estate planning experience. For further information contact Simon Bennett on 07 5555 0000.
This article was featured in Label Magazine, by Simon Bennett
Volcanic ash created an international debacle as people were stranded far from home; it highlights the need for a back up plan
Life does not always go to plan but most people are unprepared for the unexpected according to Gold Coast solicitor Simon Bennett. Simon says responsible people prepare for all eventualities. “Life is unpredictable, we must hope for the best and be prepared for the worst,” he says.
“People can sometimes become incapacitated due to a so-called act of god like the volcanic ash eruption or as the result of an accident or illness. It is essential to have a plan of action in place to avoid compounding the problem. A power of attorney ensures a trusted family member, friend or professional person is able to take over financial and health affairs,” Simon says.
A power of attorney is a legal document that allows any person aged 18 years or over to nominate another to deal with financial, health and any other situations if they are not capable of dealing with these matters themselves. An enduring power of attorney continues if the loss of capacity is ongoing. It allows the person with the enduring power of attorney to make decisions on behalf of another.
Simon says government officials take over when people who are no longer capable of dealing with their own affairs have failed to arrange a power of attorney. “It would be terrible to rely on state officials.
“These people have no idea of what an incapacitated person would want or expect. The individual becomes a faceless subject of the State. A power of attorney ensures individuals don’t get lost in the shuffle. OMB Solicitors experienced legal team can help everyone plan for the unexpected,” he says.
This article was featured in Label Magazine, by Simon Bennett
Recent reform to awards for pain and suffering for those who have suffered a workplace injury brings the Workers Compensation & Rehabilitation Act into line with the damages available under the Civil Liability Act for motor vehicle and other accidents, thereby creating a more uniform compensation scheme in Queensland.
Serious injury invariably leads to loss of income and added expenses for the claimant. The cost of medical treatment coupled with an inability to work during rehabilitation is a source of serious financial strain for many Australian families. A successful claim for damages will help offset this loss.
Unless the claimant is a minor, the right to claim will generally expire three years after the accident occurred, or after the claimant became aware their injuries were caused by an accident. Thus, it is vital that claims are initiated in a timely manner.
Personal injury claims only succeed if another person (such as your employer or other vehicle driver) owed a duty to the claimant, and breached that duty through negligent action or inaction. A causative link to the injuries must also be demonstrated.
Negligence by the claimant may reduce or eliminate the compensation. Claimants must avoid obvious risks and take care for their own safety.
Awards for pain and suffering (general damages) are based on medical opinion which determines the severity of the injury suffered and any resultant long term impairment. For injuries sustained from 1 July 2010 onwards, the Workers Compensation & Rehabilitation Regulations Injury Scale Value tables sets out the awards payable.
However, there is more to a personal injuries claim than simply attempting to quantify the pain and loss of enjoyment of life suffered. Additional types of awards may be made to successful claimants:
- past economic loss (and past superannuation);
- estimated future economic loss (and future superannuation);
- past hospital/medical/rehabilitation costs and related out of pocket expenses;
- predicted future rehabilitative expenses and out-of-pocket expenses; and
- care provided, in the past and/or future, by family and friends, or employed carers and other service providers.
These awards aim to put the claimant back in the position they would be in had the negligence and resultant injury not occurred. This can return some kind of financial normalcy to the lives of those affected by serious injury.
Women who have gone through a separation or divorce will be the first to tell you that the process is daunting, expensive, lengthy and exhausting. You work hard, build your wealth, meet “Mr Right” and fall head over heels into a relationship, only to realise some years later that “Mr Right” was not all you expected. Suddenly, the joyride comes to an abrupt stop as your relationship is reduced to paperwork and numbers.
It is a harsh reality when you are told by your solicitor that when it comes to your property matters, it does not matter that he cheated on you, and that it does not necessarily matter that he did not bring the same amount of wealth into the relationship or contribute as much as you did financially… the reality is, he potentially has a claim to your assets, even those you owned prior to your relationship. You can fight it in Court and potentially win, but in most cases; it will cost you more than it’s worth, both financially and emotionally.
So what do you do? At the risk of saying the words that are still considered by many as taboo, you protect your assets, and you get him to sign a Binding Financial Agreement, or what is more commonly referred to as a Pre-nuptial Agreement.
Sure, it’s easier said than done, after all, how do you ask the man you love to sign a document that in short says, “in case we don’t work out, I keep my things, and you can’t touch them”. It implies you do not trust the relationship will work and that you do not trust him… at least that is how a lot of people see it. What you are really saying is, “I have worked hard to build my wealth. If things were to get ugly between us, promise me you won’t try to take away what I have worked so hard on my own to build.”
A Binding Financial Agreement will protect the assets you have accumulated prior to moving in with or marrying your partner. At the same time, it will allow you to decide together, in advance, and whilst you both have each other’s best interests in mind, what you think is fair and what you will do with your property in the event you separate.
You can do this and be proactive, or alternatively, take a reactive approach and try and sort through the mess when both of you are broken hearted and potentially upset at one another. Spend a little now to secure your interests, or spend a lot later in a bitter fight to the end, where potentially, no one wins.
Binding Financial Agreements can be entered into prior to or once a couple are living together; and at any time prior to or during a marriage. If you have separated, and you are concerned about your rights, we can also assist you. Contact our Gold Coast Family Law Solicitor on 07 5555 0000.
This article was featured in Label Magazine, by Simon Bennett
The urban myth lives on despite the reality of separation, divorce and bitter wrangles.
An ever increasing number of marriages fail to fulfil the happily ever after expectations most people dream of. Gold Coast lawyer Simon Bennett says it is wise to set romance aside and enter into marriage with a degree of protection.
“Few people would enter a business partnership without an agreement that protects against the unforeseen; the same rules should apply to marriage. It’s not very romantic but it does go someway to avoiding the hassles that can result from a relationship breakdown,” Simon says.
“Approaching a relationship breakdown is difficult when emotions are running high and most people are focused on anger, resentment and revenge. Both parties should take a commonsense approach and settle for a fair, equitable and just resolution. It is easier to do this when there is a cohabitation agreement in place,” he says. When a marriage or relationship breaks down there are a number of areas that must be resolved. These usually include property settlement, financial maintenance and custody of children.
Simon says that during a divorce, property settlement involves the division of matrimonial property, including all assets and liabilities including superannuation. “Division of property or deciding how much time is to be spent with children shouldn’t be about greed or point scoring. Family Law can far too often become the enemy rather than the means of resolving disputes, rectifying relationships and allowing parties to move forward,” he says. “The custody of children can be very complicated. Specific issues may include parental responsibilities such as day to day decision making, the time each parent spends with the child or children and child maintenance. Financial maintenance is generally controlled by the Child Support Agency,” he says.
“Advice should be sought from an experienced divorce solicitor. This ensures both parties are fully aware of their positions. The initial discussion should outline a plan for reasonably resolution. The next step generally involves another meeting with the parties involved and their representatives.
“When issues are resolved, agreements can be entered into. Where children are involved Family Court Consent Orders can be obtained. If agreements can’t be reached further legal advice is recommended,” he says.
This article was featured in Label Magazine, by Simon Bennett
An experienced solicitor offers viable solutions in the face of legal action.
Leading Gold Coast lawyer Simon Bennett says courts are often described as casinos for the rich. “Most people think only large companies and wealthy individuals can afford the cost of litigation and there is some truth in this,” he says. “When civil and business matters can only be resolved by legal action or it is necessary to defend against proceedings there are ways to minimise costs.
“It is essential to remove emotions from the equation. Litigation is often driven by feelings about justice or rights and wrongs. Legal action should only be taken after all the facts and the likely results are established. Few can afford the expense of proving a point in court.
“It is important to choose a specialist solicitor who is experienced and competent. Very few lawyers have experience in running complex litigation in the superior courts. An inexperienced solicitor may make costly tactical errors. Sound representation comes through experience, knowledge of court procedure, and rules of evidence. Poorly drafted court documents are often challenged or redone – this all adds to the cost.
“People who plan legal action should ask their solicitor detailed questions. This will show whether the solicitor has the necessary qualifications and experience. Superior court actions involve a barrister’s fee. The choice of barrister is crucial.
“Errors in the preparation and presentation of a case are costly and may result in a negative outcome. Ensure money is spent wisely by engaging a solicitor who has intimate knowledge of and a good relationship with the bar, and I don’t mean the local pub,” he says.
Simon says the best way of reducing legal costs is to work with a solicitor to establish a reasonable settlement. “Provide the solicitor with as much information as possible as soon as possible,” he says.
“A settlement that is commercially acceptable in the light of risks and costs is a positive result. If a settlement can’t be reached then at least the solicitor has the full picture and the opportunity to gain the tactical advantage,” he says.
This article was featured in Label Magazine, by Simon Bennett
Are you ready for your Body Corporate Levies to change again?
The calculation of who pays what levies in a body corporate has been contentious for some time. The major reason for this is that the Legislation has changed a number of times.
It all started in 2003 when the then Labor Queensland Government introduced changes to the Legislation to make it clear that levies should be equal except where it was just and equitable for them not to be equal. This was interpreted by the Court of Appeal in 2004 to mean that everyone should pay the same amount of levies; unless it can be demonstrated that one unit in a body corporate has the effect of increasing the costs of running the body corporate.
An example of this may be where a penthouse apartment has its own lift and the body corporate is responsible for monitoring the lift.
After the Court of Appeal decision the legal system was flooded with bodies corporate responding to applications. The old Commercial and Consumer Tribunal saw the majority of these cases and for a period towards the end of 2009 it appeared that the body corporate section of the Tribunal did nothing else other than consider applications to make the calculation of levies equal.
Obviously, when some unit owners have their levies reduced some must have theirs increased and this caused some concern and ultimately forced the then Labor Government in 2011 to amend the Legislation again to reverse the previous charges. On 14 September 2012 the new LNP Queensland Government introduced a Bill into Parliament that will effectively require that the calculation of levies be equal once again. That Bill has now been sent to the Legal Affairs and Community Safety Committee which is required to report back to Parliament by 22 November 2012.
Given the level of control that the LNP has over the Queensland Parliament it would seem a foregone conclusion that once the Committee reports back to Parliament the Bill will become law sometime towards the end of this year or early 2013.
At OMB Solicitors we have an expert Body Corporate Team that has been involved with the calculation of levies right from the start.
If you are currently faced with an Application to amend the way your levies are calculated, or your body corporate has previously had the calculation of its levies adjusted, we would be pleased to meet with you to discuss the effect of the proposed Bill and how we may assist you when it becomes Law.
Body corporate disputes are nothing new but Juliette Nairn from OMB Solicitors has the ability to steer you through what can be a minefield of litigation.
Are you frustrated by your Body Corporate neighbour’s failing to pay their contributions, leaving you to pick up the difference? The good news is you can take steps to recover your money. The Court of Appeal of Queensland recently made a landmark decision in the area of Body Corporate Law regarding the ability of bodies corporate to recover contributions, penalty interest and all reasonable recovery costs from a lot owner who fails to pay their contributions on time.
The decision was made with respect to a Body Corporate feud which began in 2011 relating to a prestigious unit in Surfers Paradise worth over $1m. The unpaid amount in question was around $5,500 and the owners of the lot claimed they had no capacity to pay their debts, despite owning several other units in Surfers Paradise of similar value. This resulted in the remaining lot owners having to cover the shortfall in contributions to cover the daily expenditure of the body corporate.
When this matter was brought before the Queensland Court of Appeal, OMB Solicitors as legal representatives for the body corporate, successfully argued that if a single lot owner fails to pay their body corporate levies, this places an unfair burden on the other lot owners who have always abided by their responsibilities. As the saying goes, it only takes one bad apple to spoil the barrel.
In the lead up to this matter being brought before the Court of Appeal, over $400,000 in recovery costs were incurred due to the unreasonable pursuit of litigation through five different Courts over a number of years. The Body Corporate for The Wave has been forced to expend these costs as part of the lengthy proceedings, which resulted in each lot owner being forced to make further contributions to the body corporate administration fund. These costs were incurred as a result of the non-contributing lot owners continually pursuing the matter to a higher Court, despite them being unsuccessful at all five levels of the Court proceedings.
This ever-ballooning debt owed to the Body Corporate, and essentially the remaining contributing owners, resulted in the bank repossessing the property in mid-2013. It should be noted that the bank, Westpac, failed to take steps to protect its interest throughout
the court proceedings. The Court agreed that ultimately it is the contributing lot owners who are meeting their share of the expenditures and who are disadvantaged by the non-payment of one lot owner. This cannot be, and was not, the intention of the legislation protecting everyday owners within a body corporate. The body corporate’s success in this matter ultimately resulted in a Court order that Westpac pay the body corporate debt including all contributions, interest and recovery costs.
The Court of Appeal is sending a very clear message to lot owners and mortgagees through this judgment to ensure they look carefully at non-payment of body corporate contributions. OMB Solicitors has handled over 2,000 body corporate levy recovery proceedings in the past five years, and the average costs incurred in recovering contributions from defaulting lot owners is less than $5,000. These types of matters also usually resolve with full payment being made to the body corporate within a period of about 3 months. However, this case highlights a rare example of just how expensive and time consuming body corporate matters can become if expert legal advice is not sought in the early stages of such matters to resolve them quickly.
If your body corporate requires expert legal advice on this type of matter, or any other Body Corporate matters, consider contacting the Body Corporate team at OMB Solicitors on 07 5555 0000.
Save thousands of dollars on private education with savvy estate planning
You can take advantage of legal tax benefits and save on education costs with a trust. That statement comes from O’Keefe Mahoney Bennett estate planning manager Richard Dawson who says trusts are established in a will and funded by assets of a deceased estate or payments to an estate.
“A Testamentary Discretionary Trust (TDT) is otherwise known a lineal descendants trust,” he says. “The trust is controlled by a trustee. The trustee is usually the primary beneficiary and able to enjoy the benefits of the trust. TDTs often include other beneficiaries. These may be the children and grandchildren of the primary beneficiary because current tax legislation allows the proceeds of a trust to be distributed to beneficiaries.”
The benefit of correct estate planning is that tax savings result when the trustee distributes gains to the beneficiaries with the lowest marginal tax rate in a particular financial year. “These may be the mother, father, child, or grandchild of the deceased which means that the beneficiaries pay tax on trust proceeds at normal marginal tax rates.
“These beneficiaries are usually children as they are unlikely to be earning an income. Therefore significant tax savings can be gained by distributing trust income to children because children aged under 18 years are taxed at marginal adult rates as opposed to adults on high incomes who pay significantly higher tax rates,” Richard says. “Those tax savings from the trust income can therefore be used to subsidise children’s education costs and living expenses. By effective use of estate planning, we can ensure that those savings via the taxman can pay for their education and lifestyle.”
For more information on tax effective estate planning contact O’Keefe Mahoney Bennett Solicitors 5555 0000
As world markets continue to melt down and share markets plunge concerns about superannuation fund losses escalate.
Superannuation was designed as a savings plan for workers. The goal was to create an investment fund with capital growth to draw on during retirement. Many people are disappointed in the performance of superannuation funds.
Gold Coast solicitor Simon Bennett says Self Managed Super Funds are an alternative to industry managed super funds.
“People can create a self-managed super fund. This means individuals have control over their superannuation investment,” he says “Self-managed super funds can be set up with the help of a financial advisor, a solicitor, and accountant.
Self-management allows individuals to make decisions about their investments. “People can decide when and where to invest their funds within the legislative guidelines.
“Recent legislative changes enable people with self-managed super funds to borrow so they can buy investments when the time it right,” Simon says.
“This may allow people to capture an investment opportunity that is not available to a superannuation fund. “Self-managed funds are not for everyone but all wealth protection options are worth looking into.
“It is essential to discuss the investment options of self managed super with a financial advisor, account and legal advisor. “There are legal limitations relating to the use of funds and the type of investments that are made,” Simon says.
This article was featured in Label Magazine, by Simon Bennett
Check before you become the boss and sign the cheques.
So you want to be the boss and control your destiny? Owning your own business is not a simple task and with regulation and rules on top of the difficult financial climate you must be sure that all your ducks are in a row.
From a legal aspect you need to ensure that before you enter into a contract to purchase a business that you consult your solicitor. Before you even get to a contract there are extremely important issues of structuring that must be considered. Don’t for a moment think you should just be buying in your own name, serious consideration should be had to owning the business in a company, trust or combination of these vehicles. This type of structuring when done correctly will provide asset protection and may also allow your accountant more flexibility when planning your taxation matters.
The contract must be properly drafted to ensure that you are protected as this is the single most important stage of the purchase. A sensible business contract should allow you the opportunity to investigate all aspects of the business before you are committed to buy. You need to make sure the accounts of the business are accurate and you should ensure your accountant verifies the figures. A trial period can be negotiated where you work in the business and get to see not only the workings but also the customers and the income.
It is essential that the premises from which the business operates is secure as often there is a large amount of the goodwill attached to the position of the business. Therefore your solicitor must check the lease and ensure you have security of tenure. All licences and approvals must also be in place to guarantee that you will be able to operate the business. Issues with staff, ownership and transfer of assets, business names, websites and the like form an integral part of the process. Franchises are often part of business purchases these days and it is essential that you are properly advised on these agreements.
Your solicitor will be able to guide you through the process and you will soon learn being The Boss simply means that you have responsibility for not only yourself but the whole business. Simon Bennett is a Partner and Accredited Property Law Specialist with O’Keefe Mahoney Bennett Solicitors.
This article was featured in Label Magazine – Summer, December 2008, by Simon Bennett
Do-it-yourself Will Kit – What you use before they come to see the lawyers to fix everything up…
Most of us work tirelessly over 30 or 40 years to accumulate our wealth with the intention that we pass that wealth on to the next generation after our death. In the interest of saving a few dollars people often resort to the use of Do-It-Yourself (DIY) Will kits, colloquially known as newsagency Wills. DIY Wills have a myriad of pitfalls for the unsuspecting user.
Respected Gold Coast Estate Planning Lawyer Richard Dawson says to avoid these DIY Wills at all costs. DIY Wills have many “fill in the blanks” sections which, if completed correctly, created a legally binding document. If not, then lawyers are usually engaged in a very expensive exercise of determining what the Will-maker intended before his or her death.
DIY Wills usually cost between $20-$40 and then the Will-maker has to spend time completing the DIY Will with the hope that it reflects accurately their wishes. On the flip side, a simple and straightforward Will prepared by a lawyer can cost but a little more. Knowing you have peace of mind it is a very small price to pay. The Succession Act stipulates very strict requirements regarding the preparation of, signing and administration of Wills. One tiny error could render the Will entirely invalid. If this occurs then the deceased person is said to have died ‘intestate’, that is, without a valid Will.
When a person dies intestate an application must be made to the Supreme Court before a deceased person’s estate can be properly and legally administered. Depending on the circumstances, the person who has the right to apply to the Court may be very different from the person the Will-maker original intended. Richard says that any person contemplating making their Will should always use a qualified, experienced, estate planning lawyer so as to avoid the costly expense and anguish associated with Supreme Court applications.
Newsagencies should be seen only as a place to purchase your newspapers, magazines and lotto tickets, not a one-stop-shop for your legal documents. Having a lawyer prepare your Will is not only sound estate planning advice but highly recommended if you want to protect your family assets. He says the cost of professional legally prepared Wills is insignificant in comparison to the costs of a Supreme Court application.
Let the tax man pay for your children’s and grandchildren’s education.
Ever wondered how you could save tens of thousands of dollars on your children’s or grandchildren’s private education? Well the answer is quite simple, completely legal, and better still the tax man pays it for you!
The tax savings are achieved through a Testamentary Discretionary Trust or TDT. A TDT is a trust set up in a person’s Will and establishes on their death. TDT’s are funded by deceased estate assets, such as real estate, life insurance payouts or superannuation benefits.
A TDT is controlled by the trustee who is usually also the primary beneficiary. That is, the person who controls the trust also enjoys its benefits. TDT’s generally include children and grandchildren of the Will maker as beneficiaries.
TDT’s have a wide range of benefits and are designed to protect a beneficiary’s creditors and predators. A beneficiary’s creditor can include the ATO.
Proceeds of a TDT must be distributed to the nominated beneficiaries such as the Will maker’s children or grandchildren. The relevant tax law applying to TDT’s means children under 18 years are taxed as adults. This is different tax treatment under a
family trust where children taxed at extremely high rates.
The potential tax savings when income from a TDT is distributed to benefit a child or grandchild under 18 is significant. If the child’s parent is a high income earner and pays a high rate of tax, then TDT income paid to children under 18 years is very tax effective.
For example; Fred Smith’s mother died leaving him an inheritance of $1.5M and a TDT was setup in her Will. Fred is a doctor. Heearns $250,000.00 a year and pays the highest marginal rate of tax of 49%*. Fred has 3 children, Peter, Paul and Mary all under the age of 18 years.
The TDT receives income of $75,000 per annum from its investments. Fred, as the TDT trustee, distributes $25,000.00 to each of Peter, Paul and Mary. The first $18,200.00 is tax free. The other $6,800.00 is taxed at 19% or about $1,300.00 per child. Had this $75,000.00 been added to Fred’s $250,000.00 annual income, Fred would have paid $36,750.00 in extra tax. The total tax saving to the Smith family is $32,850.00 per year. Multiplying this tax saving by the average 15 years of private education (including university) potentially saves the Smith family nearly $500,000.00.
The moral of the story is through proper estate planning, setting upa TDT can create a completely legitimate tax-effective way to pay for your children’s and grandchildren’s education and lifestyle instead of seeing your hard earned dollars end up in the tax man’s pocket. To find out more on TDT’s and other estate planning strategies, speak with Richard Dawson, Partner and Estate Planning Manager at O’Keefe Mahoney Bennett Solicitors, phone 07 5555 0000.
*As at 1/7/2015 including Temporary Budget Repair Levy of 2% andMedicare Levy of 2%. Tax rates are subject to change and may be varied by the Income Tax Assessment Act.