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PROTECTING INHERITED ASSETS AGAINST FAMILY LAW CLAIMS

Case Study – 

Jane’s only significant asset is her primary residence, which is a modest 2-bedroom apartment worth $800k. Jane leaves everything to Mary who is her only child. Mary has a job paying $120k p.a. and 2 children who are still in school.

Mary lives in a 3 bedroom townhouse, which she rents as she can’t yet afford to buy her own home. Once Jane’s apartment passes to Mary, to help pay the bills, Mary rents out Jane’s old apartment as an investment property, which earns $40k p.a. in rental income.

Mary holds Jane’s apartment as an investment property for 10 years and then sells it for $1M, making a $20k capital gain on the sale.

To see the tax rates that apply, look at the following table in the “Testamentary Trust’ column, where you can see the rates are the same as the normal adult rates. With a smarter will, those rates can also apply to children under 18 years old who otherwise have no income.

Mary’s circumstances with a Simple’ Will:

With an existing income of $120k p.a. from her job, the additional $40k p.a. in rental income from Jane’s old apartment all falls within the $80,001 – $180,000 tax bracket, the rate for which is 37%. 37% of $40k is $14,800, which is the extra tax that Mary will pay on the additional rental income every year.

In the final year, the $40k rent + $100k capital gain (after the 40% CGT discount) will all add to Mary’s income, pushing her total taxable income up to $260k, taking her well into the top tax bracket of 47%.

Mary’s circumstances with a ‘Smarter’ Will:

Mary streams the additional $40k in rental income to her 2 children, splitting it equally between them (i.e. $20k each). Her children each pay only $342 in tax as the first $18,200 for each of them is tax-free.  Instead of paying $14,800 in extra tax every year. Mary reduces the extra tax down to only $684, which is a saving of $14,116 per year, every year.

In the final year, the additional $140k income (i.e. $40k rent + $100k taxable capital gain) can similarly be split equally between Mary’s 2 children $70k each. This way, nothing falls within the top 47% tax bracket at all.

Asset protection against Family Law claims

Based on this case study if Mary, Jane’s beneficiary is involved in a marriage or de facto relationship that breaks down, then Mary’s former spouse may make claims against Jane’s apartment. The Family Court of Australia has broad powers to divide the beneficiary’s property between the spouses and require the payment of maintenance (i.e. alimony).

By placing her assets in a testamentary discretionary trust it may help to insulate Jane’s hard-earned asset from such claims. This is because technically the trust owns the assets and, as it is a discretionary trust, the beneficiary (Mary) does not have a fixed entitlement to the assets.

QLD Law Group’s Estate Planning and Family Lawyer Simon Pattison can assist with ensuring your assets are protected as per your wishes. Contact Simon today on simon.pattison@qldlawgroup.com.au or 3226 1733.

Please note: This guide should not be relied on as a substitute for obtaining legal, financial or other professional advice. This case study is intended to provide a general example in relation to income tax only and is not comprehensive. Other taxes also need to be considered – e.g. GST, stamp duty, land tax, etc. You must seek your own tailored professional advice.

Do Pre-nups really mean anything?

Binding Financial Agreements

“PRE-NUPS, POST-NUPS & DURING NUPS”

Many have heard of the term “Pre-Nup Agreement” usually from American movies or sit-coms.

The general impression is that it is an agreement made between people who are about to get married and one party wants to protect their assets as they have significantly greater assets than their proposed partner.

In Australia these agreements are called Financial Agreements and are pursuant to the Family Law Act. They can be entered into prior, during or after marriage and similarly prior, during or after the end of a de-facto relationship.

Such agreements set out how your property will be divided if your relationship comes to an end. The agreement will determine how your property will be divided and prevents the Family Courts from being involved.

Such agreements are becoming quite common where people are entering into second or more marriages and have children and assets from previous relationships. Their advantage is to enable both parties to make sure that the terms of any property division are agreed up front and will not end up the subject of protracted and invariably costly litigation.

After separation they are an alternative to obtaining consent orders from the courts.

Financial agreements are not in fact binding unless the requirements of the Family Law Act are met. One of these requirements is that both parties receive independent legal advice for such agreements to be valid. What this means is, you should ensure that you meet with a solicitor with experience of these types of financial agreements.

It is important to note that no other form of document (excluding orders from a court), is effective in determining a property division after separation. Any such document may be overturned by a court at a later date.

Another important advantage of Financial Agreements is that a transfer of real property made pursuant to such an agreement, does not incur state stamp duty. This alone will often cover the cost of such an agreement.

The team at QLD Law Group are here to help you through these agreements. Please contact Simon Pattison on 3221 8000 or simonpattison@qldlawgroup.com.au to discuss your personal circumstances further.