Dividing Up the Asset Pie: Issues in Administering the Estate - 4 program video webinar series

Program 1: Nothing is Certain Except Death and Taxes: Tax issues in Estate Administration

While death duties in Australia are long gone, tax remains an important part of managing a deceased estate. This session provides guidance on what administrators need to be aware of in the estate management process from a very early stage onwards, including:

• ATO Ruling 2622 – the three stages of deceased estate administration for tax purposes
• Responsibilities and liabilities of the legal personal representative
• Who should notifications be made to after death?
• Documents at the ready – what do you need?
• When to call in the professionals
• Outstanding tax returns of the deceased prior to death – when do they need to be lodged?
• Tax liabilities of the estate
• Tax liabilities of non-estate assets
• When does income stop being estate income and become beneficiary income?
• Preparing a timeline for responsibility and action

Program 2: The Age of Entitlement: Eligibility for Family Provision Claims

Not everyone who feels hard done by in relation to the distribution of the estate is able to make a claim for a slice of the pie. This session looks at eligibility for making a claim against an estate, and what evidence is required to satisfy the court, including:

• Who can bring a claim? Do the Australian jurisdictions differ on eligibility?
• Partners, children, grandchildren and others – analysing the categories of eligible claimants
• How important are fairness and moral duty? Vigolo v Bostin [2005] HCA 11; Firth v Reeves [2019] VSC 357
• Evidence of relationships – what do the courts need to see? Re Gunn; Thomas v Gunn [2019] VSC 772; Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019]NSWSC 1324
• How is “need” proven? Looking at need, dependency and other factors: Dannawi v Dannaway [2019] NSWSC 1287; Veniou v Equity Trustees Limited [2018] VSC 832; Firth v Reeves [2019] VSC 357
• Costs considerations: shifting the burden, proportionality and sounding a warning: Wengdal v Rawnsley [2019] NSWSC 926; Oslen v Oslen [2019] NSWSC 217; Harris v Harris [2018] NSWCA 334

Program 3: A New Era for Trustee Discretionary Distributions?

It has long been accepted practice that the trustee of a discretionary trust has complete discretion to determine when and how to make distributions to the beneficiaries of a trust. However, a recent case concerning the decision of a superannuation trustee may have turned that practice on its head. In this session, a number of seminal and recent decisions will be examined in an effort to provide guidance on the limitations, if any, on trustee discretion post-death, including:

• The nature of a trustee relationship
• Duties and responsibilities of trustees
• Trustee exercise of discretion in SMSF following member death: Katz v Grossman [2005] NSWSC 934; Ioppolo Hesford v Conti [2013] WASC 389
• Importing a good faith test: Re Marsella; Marsella v Wareham (No 2) [2019] VSC 65
• Is having a binding death nomination enough to avoid a dispute? Wooster v Morris [2013] VSC 594
• What actions can be taken to claw back discretionary distributions? McIntosh v McIntosh [2014] QSC 99; Brine v Carter [2015] SASC 205; Estate of Burgess; Burgess v Burgess [2018] WASC 279.
• When is it OK to not benefit a beneficiary if they have been cashed out from other assets but do not agree to being excluded as a beneficiary?
• Making a compliant about trustee discretion to ACFA

Program 4: What to Do When the Cupboard is Bare: Bankrupt and Insolvent Estates

For executors and families, managing death, grief and other emotions is difficult enough, but what if the deceased’s assets are insufficient to pay out estate liabilities? This session will provide a guide to the administration of such estates, including:

• What is the role of the executor? Who should advice be sought from?
• The differences between an undischarged bankrupt and an insolvent estate
• The applicability of bankruptcy and probate and administration laws in estate management
• Informal or formal administration? Assessing the circumstances and size of the estate
• Who is liable for the debts? Can the executor be personally liable? What about the family?
• Who pays the funeral expenses in an insolvent estate?
• Accessing non-estate assets including insurance proceeds and superannuation
• Where does that leave the family?
• Proactive steps in advising at-risk testators when taking instructions