When a person dies without a Will, administration of the estate is more complicated than if the person had left one. Dying without a Will is called “dying intestate”. Due to the complex nature of dealing with an intestate estate, additional information is required throughout the process, which can cause significant delays in administering the estate. In many cases this will delay the distribution of the estate.
Despite increasing enquiries from clients as to whether trusts still work, the short answer is “yes”. But what are the reasons to keep one? Whatever the reason, it may no longer be relevant due to changes in the law, as well as your individual circumstances.
The Family Protection Act 1955 provides the Court with discretion, upon application of an eligible person under the Act, to make an order for “adequate provision” for “proper maintenance and support” to those to whom the deceased owed a moral duty. Courts in more recent times have tended to take a more conservative approach. The central consideration is whether the provision made for the eligible person is adequate, and if not, what is the minimum to remedy the failure?
Engaging in asset planning often requires a focus on trust and estate law. Such focus means the social security implications of actions and decisions may not be considered, which can lead to unintended consequences. In some instances, where a home has been transferred to a Trust, the question is whether an applicant’s home should remain in the Trust, or be returned to the settlor prior to the application for a rest home subsidy.