Articles | Genders and Partners

What is Probate and is it always required in South Australia?

Probate is the process of a Court establishing that a Will is valid and represents the final testamentary intentions of the Testator. There are time limits for a Will to be submitted to the Probate Court after the date of the death of the Testator.

When someone dies, their estate is represented by an executor or administrator. If the deceased person has made a Will it is the named executor(s) who will be charged with the responsibility of implementing the terms of the Will and administering the estate.

Usually, subject to the value of an estate, an executor(s) is required to obtain what is called a “Grant of Probate” from the Supreme Court of South Australia. The Grant of Probate is a process whereby a deceased’s Will is validated as being his or her last Will. Upon a Grant of Probate being made, an executor then has the responsibility of implementing the terms of the Will by distributing the assets of the estate to the nominated beneficiaries after payment of liabilities and expenses.

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A Death Tax by Stealth

Did you know that your superannuation savings could be subject to a hefty tax when you die?

Most people don’t know it, but there are death taxes by stealth in Australia.

While it’s not an inheritance tax per se, if it looks like a duck and quacks like a duck …. Millions of Australians’ retirement savings are taxed upon their death, and yours could be too!

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What you need to know about the new succession laws in South Australia

From 1 January 2025, new SA laws will likely make it more difficult for some family members to challenge the provision of assets in a Will, while others may have a greater claim to an inheritance.

The oldest law firm in SA explains some of the key changes to the circumstances under which a person may be entitled to a deceased person’s assets.

On 1 January 2025, three South Australian Acts are being repealed and replaced with one Act, the Succession Act 2023, making it an appropriate time to consider your current succession planning arrangements.

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What is a corporate trustee and why would I want one?

#1. Benefits of a corporate trustee

Corporate trustees are companies created to manage a trust on behalf of the beneficiaries.

The assets of the trust must be registered in the name of the company.

You may opt for a corporate trustee to manage your family trust because it offers more flexibility for estate planning, tax benefits and limited liability.

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Payment to act as Executor

As executor of a deceased estate you need to take a lot of care and responsibility. But what, if anything, are you entitled to receive for your efforts?

In the last month I have received multiple enquiries from executors asking this question. The answer is not what they want to hear.

As executor you may pay (or reimburse) your reasonable out-of-pocket expenses from the estate’s assets.

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What is an Enduring Power of Attorney and why do I need one?

Most people have heard of a legal document called Power of Attorney, but not many understand the different types of Powers of Attorney, how they work, when and how to create one, the terms to include or whom to appoint as your agent.

This is an example of where a little knowledge can be a dangerous thing. Powers of Attorney are a specialised area of law.

Don’t be fooled into believing the lady at the hairdresser or the bloke down the pub who says that it is easy to do this yourself.

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Understanding the Exclusion of Superannuation from Deceased Estates

As we approach our golden years, it becomes increasingly crucial to ensure our hard-earned assets are protected and distributed according to our wishes after we pass away.

Estate planning plays a pivotal role in achieving this, and it’s essential to understand why superannuation does not automatically form part of a deceased estate in Australia.

In this article, we’ll delve into the reasons behind this exclusion, provide practical advice, and empower you to take charge of your estate planning.

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COVID Wills Need Review

The COVID-19 pandemic triggered a huge spike in Australians rushing to put their affairs in order, however a lot of the Wills that were created during this time may not be worth the paper they are printed on.

Rod Genders is a senior Australian lawyer from the oldest law from in South Australia (Genders and Partners established 1848), which specialises in Trusts, Wills and Estates.

He warns about the following common problems that he is seeing in his law practice from mistakes made by people in their COVID-era estate planning.

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Estate Planning for Company Directors

When people make their Will, they typically concentrate on their personal assets, and they sometimes forget about their business assets & responsibilities.

If you are a director of an Australian company, then you need to know that you have responsibilities relating to that company, which can include:

Personal liability of directors for unpaid company taxes;

Personal liability of directors for unpaid company superannuation;

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Why DIY Wills are so bad

The Western Australian Supreme Court publicly stated in a 2014 judgment that “Homemade Wills are a curse,” and inevitably lead to protracted and expensive legal battles in family disputes involving substantial estates.

The Court said the legal issue around the proper determination of the deceased’s Will could have been avoided if he had “consulted a lawyer and signed off on a Will that reflected his wishes”.

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