Asset protection seems to be a recurring topic with clients over the past few months.
Although we are not lawyers the same issues seem to crop up.
So let’s have a look at the top issue of asset protection that everyone should consider:
Should I have a will?
The answer is yes if you want to control who gets what and not leave it to the government or the courts.
A will is only activated after death, People should also consider writing up an Enduring Power of Attorney which identifies someone to make decisions for them if they are incapacitated (i.e. still alive but maybe in a coma or mentally ill).
This type of document can also include what medical treatment you want and who will make these decisions.
What does my Will COVER?
Wills only pass on assets that are in your name i.e. your estate.
Your will also appoints who you want as executor/s, who will then carry out your wishes.
Executors take on a legal responsibility, so the nominated person can decline, maybe after your death, so it is a good idea to have a fall back person/s.
The executor can only carry out what you say in your will and not what they think you wanted.
It is therefore imperative that you carefully consider your wishes and have them properly documented.
If you have a financial binding agreement (pre-nuptial) then you must note that on death your will takes precedence and without a will then the distribution of your estate will be as per government legislation.
Non Estate Assets
These are assets not in your name. These principally include your superannuation and Assets in a Trust.
For superannuation, normally a Binding Death Nomination (BDN) is made where you advise the trustee of the super fund and what you want done with your super assets.
Typically it directs the super assets to go to your estate and be handled via your will or to go to people/s direct.
You can even keep the funds within Super for someone else’s benefit.
Without a BDN the superfund trustee has to authority to distribute as they please within limitations e.g. your estate or to dependents.
Care is needed as many BDNs can be easily overturned by the courts if someone objects that they did not get something or enough.
Also note that divorce or marriage does not necessarily delete the operation of a BDN.
There are also tax implications depending on who Super money is distributed to on your death.
In summary your spouse or financial dependents receive monies tax free but non tax dependents such as adult children may have to pay some tax on some of the distribution.
For assets in a trust you need to pass control over to someone
Control comes from the position of an appointor of the trust and a Memorandum of wishes should be prepared identifying who will become appointor on your death.
If you have a company as trustee then the shares (estate assets) in that company will need to be distributed on your death.
The new appointor can then decide to keep that company as trustee and if they are also the shareholder (your will passed the shares to them) they can then appoint themselves as directors.
In this scenario legal title of assets held by the trust e.g. a property does not change and so it can be much easier managed on your death.
Type of will?
Typically people prepare a will and send assets to individuals.
These new owners now own the assets. There is no CGT or stamp duty on transfer via a will.
These new owners now have assets in their name.
If they get sued or divorced etc then they can lose the assets.
Children who receive income or capital (and then sell) are heavily taxed i.e. 66.5%- 46.5%.
An alternate is a testamentary trust which identifies the assets and instead of going to the person, the assets go to a trust and the person you wanted to get the asset now is made appointor i.e. controller of the trust.
They control, not own. You could instruct the executor to set up a company as trustee with the shares owned by the person.
As the individual person does not own the asset but merely controls the assets issues of bankruptcy and divorce maybe sidelined.
Children who receive income or capital from a testamentary trust are taxed at normal adult rates.
The testamentary trust is written but not signed and forms part of the will.
Your executor signs the trust after your death.
There is no CGT or stamp duty for assets going to testamentary trust on your death.
You can have multiple testamentary trusts with different assets going to each and then different individuals controlling the separate trust or have it all combined.
Capital Gains Tax
The use of a testamentary trust can also be useful if you leave an asset e.g. a property to multiple people where some may want to “take the money and run”.
In this case as the owner does not change i.e. the trust then as someone is bought out there would normally be no stamp duty on the change in control.
CGT would still apply.
If the recipient of an asset sells then CGT is calculated differently depending on the original acquisition date of the asset.
If the asset is a pre CGT asset then its cost base changes to its market value on date of death and if sold then it is now subject to CGT based on the increased cost.
If the asset is a post CGT asset then cost base stays the same and if subsequently sold the Capital Gain is the same as if the original owner had sold.
The tax paid in both circumstances is the marginal tax rate of the recipient.
If a principle place of residence is passed on it can be sold within two years with no CGT impact.
Commentary by Ken Raiss