Rod Genders is a senior Australian lawyer specialising in Wills and Estate Planning, Probate and Estate Administration, Trusts and Guardianship and Inheritance Claims and Contested Estates in South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is an international author and speaker. Rod is the 3rd generation of Genders in the law and has been practising specialised law since the mid 80’s. He has acted as counsel or consultant to in excess of 50 other firms around Australia. Rod holds the SA state record for the highest ever personal injury award of damages, and has been involved in several of the largest personal injury claims in Australian legal history. For over 10 years he served on the Council of the Law Society of South Australia and is a senior member of its Succession Law Committee. Rod was a founding committee member of the South Australian branch of the London-based Society of Trusts and Estate Practitioners (STEP) for 8 years and was the founding Chair of the international STEP Digital Assets Special Interest Group. For over 25 years Rod has chaired a private committee enquiring into the affairs of protected persons. He is a member of the Law Council of Australia, and a member of its Succession and Elder Law Committee.
Failing to keep your estate planning documents safe can cause major complications, for you and your family.
In South Australia, the simple form of Probate, known as a Grant of Probate in Common Form requires production and surrender of the Last Will and Testament of the deceased. This means that the original signed document must be located as a matter of priority. Otherwise the executor may not be able to deal with the assets of the deceased.
If the original Will cannot be located, the situation may not be hopeless. A different form of Probate, called a Grant of Probate in Solemn Form, may be attempted with a draft or copy of the last known Will of the deceased.
Families aren’t always easy. We’re bound to them by blood and history, circumstance and duty. We love them, and sometimes, if we’re really lucky, we like them too. We rarely get to choose them.
At some point in our lives almost all of us will experience some challenging times in dealing with individuals in our family.
It could be the consequences of dealing with misfortune such as illness or unemployment.
It could be your son’s unfortunate choice of girlfriend.
Maybe someone has an inflated sense of entitlement & expectation, or is lacking in appreciation for what you’ve done for them.
What is a testamentary guardian, and why do I need one for my children?
A testamentary guardian is an adult nominated in a parent’s Will to care for their minor children in case both parents die before the children turn 18.
When we have young children, we understand that if one parent dies, the other parent will automatically retain parental responsibility. But in case both parents die prematurely, each needs to nominate in their Will an alternate testamentary guardian for their minor children.
Otherwise your children may end up in a home you wouldn’t choose for them, being parented in a way that’s not in accordance with your values.
We all like to think of ourselves as resilient and adaptable to change. But all too often we only visualise ‘change’ of our own making, in our own good time.
It’s quite a different thing to deal with change that is forced upon us by outside forces.
The newsfeeds have been full of the deadly hurricane which wreaked havoc on the US state of Texas at the end of August 2017. This has highlighted the importance of risk management strategies to ensure that all of us can survive severe interruption.
With all the recent talk about Australia’s ageing population, changes to superannuation and media speculation about the possible return of death duties, this timely interview reveals senior legal specialist Rod Genders from the oldest law firm in South Australia dishing the dirt on:
- how estate companies make their fortunes from “free” Wills
- how to save your family over $10,000 when they administer your deceased estate
- how to avoid Government bureaucrats taking control of your finances, accommodation, health & medical decisions
- plus much more.
According to Alzheimer’s Australia, there are nearly half a million Australians currently living with dementia, and by 2025, this number is expected to triple. How should families of vulnerable older people help them to protect themselves and their assets?
There are several different types of dementia, including Alzheimer’s disease, Vascular Dementia, Dementia from Parkinson’s disease and similar disorders, Dementia with Lewy bodies, Frontotemporal dementia (Pick’s disease), Creutzfeldt-Jakob disease, and others.
Some of the early effects are mild. Symptoms can seem to come and go, and people can have good days and bad days.
In the legal world, there is an emphasis on something called “capacity”, which usually refers to a person’s “testamentary capacity”.
Modern relationships are fraught with tension and complexities when it comes to finances. Looking ahead to the time when you and your partner are established in your careers and have accrued considerable assets, it makes sense to want to protect what is yours should the relationship end.
Marriage, de facto and domestic partnerships
Australian Census data from 2011 shows that the married proportion of the total population has been falling. It is no longer the case that a majority of the population is married. Not so long ago the married proportion was as high as two-thirds of the entire population during the mid-20th century. In 2011, this has dropped to less than half., and the relative divorce rate in Australia remains one of the highest in the world.
You can think of a trust as a kind of legal-container, in which assets are held safely for the benefit of one or more people. A testamentary trust is setup in a Will, which appoints one or more trustees to distribute income & capital to beneficiaries over time and with certain guidelines in place.
This offers several benefits over standard Wills. Incorporating a testamentary trust into your Will is not relevant in every situation, but our specialist Adelaide estate planning law firm can help you determine if this legal measure would be of benefit to you and your loved ones.
How a Testamentary Trust Works
There are different types of testamentary trusts. A discretionary testamentary trust generally names a class of beneficiaries from which the trustee can choose to distribute, meaning that the trustee controls the assets and maintains legal protections for them until they are distributed to the end-beneficiary. Sometimes the trustee only distributes income from invested assets to one class of beneficiaries, keeping the capital distribution for a separate class of beneficiaries. In this way, the income-benefit of an asset can be given to a person, without them (or their “predators and creditors” being able to get their hands on the underlying asset.
Many people find probate to be a confusing and intimidating topic. Some deceased estates may not require probate, while others may require a different sort of grant if an executor is not named or a Will cannot be located.
Some brave (or foolhardy) souls attempt a do-it-yourself approach by trying to administer the deceased estate of a loved one themselves. This rarely ends well. You’ll save a lot of time and energy if you seek the counsel of a lawyer with extensive knowledge of probate & deceased estates in Adelaide.
Thanks to modern health care, the ageing population of Australia is growing rapidly. According to the Australian Bureau of Statistics, the demographic of people aged 65 and older increased by 3.7 percent between 1993 and 2013.
These numbers are expected to increase more rapidly over the next decade. If you’re in fairly good health and able to care for yourself well into your golden years, this is great news.
However, no one knows when an illness or injury could strike, requiring expensive long-term care and accommodations. Not planning for the future while you’re still of sound mind and in good health could be disastrous for you and your loved ones—physically, emotionally and financially. This is why it is in your best interest to meet with an Adelaide estate planning lawyer at Genders & Partners as soon as possible.
Legal Documents
When you meet with our experts on estate planning in Adelaide, we will assist you to protect yourself, your family and your assets. In addition to preparing your Will, we will provide advice and assistance on Powers of Attorney, and Advance Care Directives so that your loved ones know who is in charge of making certain decisions for you should you become ill or unable to make decisions for yourself. This leaves no one guessing or arguing over your wishes.
