Session 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?
- 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
Session 2: A Super-Size Complexity: Post Death Superannuation Distribution
Personal superannuation assets are increasingly becoming more valuable and, in some instances, may exceed the value of assets forming part of the estate. There is often confusion about what happens to superannuation when the fund member dies, and this session will provide a guide to management of this non-estate asset, including:
- What happens to the fund on the death of the member? The role of the trustee in decision-making
- Binding and non-binding death benefit nominations (BDBNs) – what difference do they make to fund distribution?
- What are the consequences of an invalid BDBN and can a BDBN be overruled?
- In the absence of a BDBN, who can receive the super fund assets? Eligible superannuation beneficiaries
- Spotlight on step-children: when is the dependency relationship severed?
- Can superannuation be considered in family provision claims?
Session 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  NSWSC 934; Ioppolo & Hesford v Conti  WASC 389
- Importing a good faith test: Re Marsella; Marsella v Wareham (No 2)  VSC 65 and the Court of Appeal’s decision in Wareham v Marsella  VSCA 92
- Is having a binding death nomination enough to avoid a dispute? Wooster v Morris  VSC 594
- What actions can be taken to claw back discretionary distributions? McIntosh v McIntosh  QSC 99; Brine v Carter  SASC 205; Estate of Burgess; Burgess v Burgess  WASC 279; Gonciarz v Bienias  WASC 104.
- Dealing with superannuation death benefits and beneficiaries’ entitlements in a dispute setting