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My question is re. the inheritance. I own the following: joint

 
Sydney-Lawyer's Avatar
  • Answered by:Sydney-Lawyer
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Customer Question

My question is re. the inheritance.
I own the following:
joint property (unit) with my husband
the following in my name only: super, insurance with my super fund, saving bank account and a half of the car.
I intend to leave this as follows upon my death:
- super&insurance and my part of the unit to my children;
- savings from the bank account to my husband and children;
- a half of the car to my husband.
1. What exactly I have to do for all of the above to happen?
2. What has to be done through will and what not?
3. What happens with each listed above if there is no will?
4. The most important - I’ve found somewhere that joint property cannot be inherited by children - I’d be ready to get into another arrangement from joint ownership with my husband –some sort of fund, tenants in common or something else – I need you to please advise of the way and cost involved and a possibility to do that change. Or this cannot be changed now.
5. Can I deposit my request for the bank account directly with the bank to nominate the beneficiaries now (similar as for the super), or is the only way through will?
6. I’ve nominated beneficiaries (my children) for my super/insurance as non-lapsing binding – is this enough to achieve the intended?
7. Unrelated to the above – Is there a tax to be paid on the inheritance by my husband and my children (and what would that be for each part e.g. unit, super, insurance, cash from the account and the car)
NOTE: I’d be happy with the answer that leave no doubt as what is to be done and how to achieve the above and would gladly pay for the advice in that case.

Submitted: 258 days and 5 hours ago.
Category: Australia Law
Value: AU$69
Status: CLOSED
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Expert:  Sydney-Lawyer replied 258 days and 5 hours ago.

Good Afternoon,


Thank you for contacting me and I will do my best to try and assist you with your question.

Do you know whether the unit is owned as joint tenants or tenants in common?


Customer replied 258 days and 5 hours ago.

joint tenants


Thank you

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Expert:  Sydney-Lawyer replied 258 days and 4 hours ago.

Good Afternoon,


As the properties owned as joint tenants, in order to you to leave your share to your children, you will need to sever the tenancy.

By severing the tenancy you and your husband then become tenants in common and you can aid should do with your half share of the property as you like and on your death it will be distributed in accordance with your will.

In relation to the balance of your question you will require a will to make sure that your wishes are fulfilled and that your estate is distributed in accordance with your wishes.

If you do not leave a will then the property will be distributed in accordance with the laws of intestacy, which will give your husband the greater share of your assets.

Your husband will have the right to choose that the unit be given to him and then what is left will then be distributed between him and your children.

The bank will not honour any letter or request you give them. They will require a will and probate of that will, and if there is no will they will request letters of administration from the court.

You are best to speak to a solicitor to arrange to have the tenancy severed and I will drafted that makes your wishes clear.

Your husband will be notified of the severing of the tenancy and will have a right to dispute your application if he chooses to.

There is no stamp duty payable when you sever the tenancy provided your shares remain 50-50.

The only fees will be the registration fee and depending on what state you are in it varies. The other fees will be what your solicitor charges to prepare the documents.

I hope this is of assistance. If you have any further questions please do not hesitate to contact me.

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

At the end of this post you will see 5 faces asking you to rate my work. Selecting either of the 2 the unhappy faces means you are not happy with my answer and do not wish me to be paid for my work. The other 3 mean I am paid.

I would prefer you rate me at the very end of our session not after each response. This way I can be sure you have an answer that assists you and you can rate the whole experience.

If you want more information after I respond, or wish to have something cleared up, select "Reply so Sydney-Lawyer" or "Reply to Expert" and we can continue until you are satisfied.

I am here to assist you as quickly as possible, and you rating each post will delay the process as it does not tell me what the issue is. I would prefer you ask me questions than rating the response and not providing me with further questions.

Customer replied 258 days and 4 hours ago.

I still need to know if my nomination for teh beneficiaries for the super/insurance is binding and if it can be disputed by my husband if there is no will.


My understanding is if I sever the tenancy it is still to be allocated th epercentage and it does not automaticly remain 50: 50 as it is now. Is only the severence to be disputed or the percenage as well?

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Expert:  Sydney-Lawyer replied 258 days and 4 hours ago.

Good Afternoon,

You can make a binding nomination on your superannuation, and this will be binding on the trustee but you need to updated every 3 years.

In order to make sure that your superannuation is given to your children it is best that you also mention it in your will. This will avoid any problem if you forget to update your binding nomination.

You should also be aware that if they are under the age of 60 when they inherit your superannuation they will have to pay tax on the money they received.

This only applies to superannuation benefits.

If you decide to change the ownership of the property from equal shares then on severing the tenancy you will pay stamp duty on the extra amount you receive.

Joint tenancy being severed means you each get 50%. If you allocate the percentages to give yourself more then you will pay stamp duty on any amount about 50% that is given to you.

The other joint tenant as a right to dispute of the severing of the tenancy, as this will impact when one of you dies, and also on any differential in percentages.

I hope this is of assistance. If you have any further questions please do not hesitate to contact me.

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

At the end of this post you will see 5 faces asking you to rate my work. Selecting either of the 2 the unhappy faces means you are not happy with my answer and do not wish me to be paid for my work. The other 3 mean I am paid.

I would prefer you rate me at the very end of our session not after each response. This way I can be sure you have an answer that assists you and you can rate the whole experience.

If you want more information after I respond, or wish to have something cleared up, select "Reply so Sydney-Lawyer" or "Reply to Expert" and we can continue until you are satisfied.

I am here to assist you as quickly as possible, and you rating each post will delay the process as it does not tell me what the issue is. I would prefer you ask me questions than rating the response and not providing me with further questions.


Customer replied 258 days and 4 hours ago.

I just have one more question, is severing the tenancy the only way to do this what I want with the unit?

Customer replied 258 days and 4 hours ago.

I also want to check a binding nomination which you say expiries every 3 years - my fund states it is non-lapsing binding nomintaion for life there is no need to be renewed - can you confirm you know of this new legislation of that is something they are not informinfg me correctly of?

Accepted Answer

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Expert:  Sydney-Lawyer replied 258 days and 4 hours ago.

Good Evening


To be able to divide the unit and give your share to your children this is the only way.

Most superannuation trustees need it updated every three (3) years. It is at the discretion of the trustee.

Here is some detailed information about it.

http://www.butlers.com.au/Portals/0/Information/Binding%20Nominations.pdf

I hope this is of assistance. If you have any further questions please do not hesitate to contact me.

Having answered your question I would like to explain how I am paid for my work. The rating given by you, for my answer will decide whether or not I will be paid for my work.

At the end of this post you will see 5 faces asking you to rate my work. Selecting either of the 2 the unhappy faces means you are not happy with my answer and do not wish me to be paid for my work. The other 3 mean I am paid.

I would prefer you rate me at the very end of our session not after each response. This way I can be sure you have an answer that assists you and you can rate the whole experience.

If you want more information after I respond, or wish to have something cleared up, select "Reply so Sydney-Lawyer" or "Reply to Expert" and we can continue until you are satisfied.

I am here to assist you as quickly as possible, and you rating each post will delay the process as it does not tell me what the issue is. I would prefer you ask me questions than rating the response and not providing me with further questions.




Expert TypeSolicitor
Category: Australia Law
Pos. Feedback: 96.1 %
Accepts: 16663
Answered: 7/30/2012

Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)

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