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.

Probate and Estate Administration Adelaide- How To Create An Expensive Disaster For Your Family To Fix After Your Death

How To Create An Expensive Disaster For Your Family To Fix After Your Death

Probate, Probate & Estate Administration, Wills
  1. Write your own Will. Use one of those cheap kits from the post office. The cheaper the better – why waste money on expensive stationery?
  2. Even better, download something from the interweb, preferably from another country. Try to get something that doesn’t have any creation date on it –it won’t be hard – that way you can be pretty sure that your Will won’t comply with local laws here and now.
  3. Don’t pay for professional legal advice. Just do it yourself. Type up (or better yet handwrite in a shaky hand) your own Will. Just in case, write up several Wills all on the same day – each slightly different.
  4. Make your gift to your daughter conditional upon her divorcing her loser husband. Put your son’s legacy in trust for 50 years, unless he completes 6 years in the army. Tell your wife that she can only keep the house as long as she never even thinks about another man AND never again speaks to her interfering busy-body mother.
  5. When writing your Will, talk about the assets in incredible detail – down to the serial number on your television. Then forget to keep track of those assets throughout your lifetime. Sell some, give some away, and junk some. It will be good for a laugh as you look up from Purgatory at your family trying to work out which assets are actually part of your estate, and who is to get what.
  6. Also, don’t bother trying to distinguish between your own assets outright, compared with assets that you might own jointly with someone else, or assets that are owned in a trust or company. Just treat them all the same.
  7. Try not to talk about your testamentary wishes with your family. After all they won’t get anything until after you’re dead, so they can jolly well wait until then.
  8. Be as secretive as possible with your own family, especially about your financial affairs. Don’t talk about what you are planning to do. Passively encourage your spouse and kids to assume they know what you want. Leave it vague enough so no one really knows.

Wills and Estate Planning Adelaide Baby Boomers - Are You Bequeathing Disaster to Your Family

Wills and Estate Planning Adelaide: Baby Boomers – Are You Bequeathing Disaster to Your Family

Estate Planning, Wills, Wills and Estate Planning

Baby Boomers were born between 1945 and 1965.  As a segment of Australian society we represent a BIG chunk of our national population, and account for a massive percentage of the nation’s private net-worth.

According to the Australian Bureau of Statistics people aged 65 years and over made up 13% of Australia’s population at 30 June 2007. This proportion is projected to increase to 25% in 2056 and to 28% in 2101.

As we prepare to transition into retirement & beyond, we are about to witness the greatest transfer of wealth ever in Australia’s history.

However 2010 Australian research commissioned by the Salvation Army from Roy Morgan Research reveals that nearly two thirds of the adult Australian population does not have a Will. The research also shows 40% of Australians aged 25+ have experienced or know someone who has experienced family conflict as a result of a family member not leaving a Will.

Dying without any Will is called intestacy.  When that happens, the government of the State where you die will determine what will happen to your assets.  This can lead to unintended people (or even the government) gaining ownership of your hard-earned assets.

Many Australians have no idea what happens to their assets after they die, and sadly many rely on the misguided notion that a Do it Yourself Will is sufficient to protect their family and assets.

elderly-care-237x300.jpg

Wills and Estate Planning Adelaide: Bequests to Caregivers

Death Benefits, Estate Planning, Pensions and Retirement Planning, Planning for Disability and Incapacity

Bequests to Caregivers

As we age, advances in medical science continue to improve our life-expectancy, so we are living longer and longer on average.

But as we age, we are more likely to require care towards the end of our lives. Some of this care is provided by voluntary caregivers and friends & family, in addition to paid carers. Sometimes we want to provide for those caregivers or friends in our Will. Such bequests however can be suspected, resented and possibly challenged by family members and other beneficiaries after we die.

Imagine an elderly man changes his Will three months before he dies to leave all of his assets to an individual who had recently befriended him and “taken care of him” in recent times.  To many people the word “gold-digger” might spring to mind.

As people age, their mental abilities age as well. Their judgment, wisdom and discernment in making decisions may no longer be as acute, and they may be more willing to trust strangers.

Sadly, some people take advantage of such elderly people, causing them to sign over assets and benefits or even whole estates to people they hardly know.

iStock_000010932924XLarge-300x200.jpg

Wills and Estate Planning Adelaide: Estate Planning for Blended Families – More Important Than Ever

Blended Families and Divorce, Estate Planning, Wills and Estate Planning

Estate Planning for Blended Families - More Important Than Ever

If you are in a second or subsequent marriage that involves different sets of children, then you have a blended family.

If you are planning to start a new life, and maybe buy a home with your present spouse, then this time around you really need to develop an integrate plan to ensure that all the important people in your life receive their fair share of your assets after you die.  That’s what modern integrated estate planning does.

In most Australian jurisdictions, divorce will invalidate all gifts to an ex-spouse under a Will.  However re-marriage will automatically revoke the entire earlier Will (with only rare exceptions).

remarriage-300x225.jpg

Wills and Estate Planning Adelaide: Complications in Estate Planning Following Remarriage

Estate Planning, Wills, Wills and Estate Planning
Complications in Estate Planning Following Remarriage

Estate planning following remarriage after being widowed or divorced is complicated by a number of factors, including differences in asset-ownership between the parties, one or both of them having children by an earlier relationship requiring provision/protection, disparity in ages, and concerns about the financial effects of a relationship breakdown (once bitten, twice shy).

Joint ownership of assets, and Family Law considerations of “Community Property” can give a surviving spouse certain property rights which can cause problems for the children from prior marriages.

choices-300x260.jpg

Wills and Estate Planning Adelaide: The Right to Choose – Live or Die

Catastrophic Injuries, Death Benefits, Estate Planning, Pensions and Retirement Planning, Planning for Disability and Incapacity, Probate & Estate Administration, Wills
The Right to Choose – Live or Die

Do you have strong feelings about what should happen at the end of your life?

You are not alone.

Around Australia in the last 15 years there have been several legislative attempts to create a framework for assisted suicide and voluntary euthanasia, and there have recently been Bills before the parliaments in both South Australia and Western Australia upon this issue.

In 1995, the Northern Territory of Australia became the first place in the world to pass right to die legislation. The Rights of the Terminally Ill Act lasted 9 months before being overturned by the Australian Federal Parliament. At present, voluntary euthanasia and assisted suicide are illegal in all states and territories of Australia; however the pressure is growing for change.

There are already places in Europe and in the USA where the laws permit degrees of voluntary euthanasia.

Of course this is a sensitive and controversial topic, provoking extreme reactions among people.  It touches upon some of the same issues as Capital Punishment and Abortion.

For some, the sanctity of human life is paramount, and for them religious beliefs prevent any suggestion of termination of life.  This group might be called the “Right to Life” group.

10-300x225.jpg

Wills and Estate Planning Adelaide: 10 More Reasons to Make a Will in Adelaide

Wills, Wills and Estate Planning
10 More Reasons to Make a Will in Adelaide

If you die without a Will, you are deemed to have died “intestate” and your estate will have to be administered at Court in accordance with an inflexible statutory formula which will determine where your estate will go. This can result in unintended results for some people, perhaps contrary to what they would have wanted.

Many people believe that if they are married and they die without a Will, all their property will automatically go to their surviving spouse. That is frequently NOT the case in Australia.

If you are married, all jointly-owned property will pass by right of survivorship to your spouse.  Matrimonial property (essentially property acquired during the marriage) will also generally go to your spouse.

However, if you also have one or more children, state law will provide a formula which will direct the share of the separate property (property acquired before marriage or inherited during the marriage) which will go to each of them. This can be an unintended result if the estate is modest and your surviving spouse needs all the estate-assets to make ends meet.

genders-and-partners-logo.png

Wills and Estate Planning Adelaide: SKI and Estate Planning

Estate Planning, Wills and Estate Planning

Are you familiar with the term SKI ? It stands for Spending Kids’ Inheritance.

A wealthy & successful businessman of my acquaintance claims that his estate plan consists of spending everything to such effect that his final cheque (to the funeral director) bounces.

Here are some reasons why you may receive a smaller than expected inheritance:

1. Your parents are spending it all. Not intentionally maybe, but with the high cost of living, medical care, and long term care, their nest eggs may not be what they used to be. Nursing home costs can run as high as $80,000 a year or higher in some facilities and long term health care may be too expensive.

2. We are living longer than ever, and as we live longer, we consume more of our wealth.  Australians now enjoy nearly the highest life expectancies (on average) in the world – significantly higher than even the UK and USA.  However this means that the duration of our elder care is longer; the amount of care required is greater; and the costs of such care grow ever higher.

3. Medical science continues to uncover treatments for once-fatal illnesses.  When coronary artery disease or cancer strikes, our survival rates today are many times higher than they were just 20 years ago.  However the cost & complexities of many new treatments & medications can erode even the largest savings.

4. Baby boomers come from families that were larger than today’s families. Parents of children born between 1946 – 1964 had an average of 3.5 children, thus leaving a smaller piece of the pie to be inherited by each child.

The End of Life Debate in Australian Estate Planning

Wills and Estate Planning Adelaide: The End of Life Debate in Australian Estate Planning

Death Benefits, Wills, Wills and Estate Planning

In June 2010 the Supreme Court of South Australia Court effectively granted an elderly woman’s wish to die.

The End of Life Debate in Australian Estate Planning

The woman was in her 70s and confined to a wheelchair. She instructed her nursing home to stop giving her food and drink and the drug insulin, knowing she would die.

She clearly asserted her right to refuse to take food and medication. The Court case was instigated by the Nursing Home in which she resided, because of concerns that her carers might face prosecution for assisting in a suicide or committing other crimes if it complied with her desires.

The judgment is a first in South Australia and reflects a similar ruling in Western Australia in 2009, where the Chief Justice of the Supreme Court of Western Australia, held that Christian Rossiter be allowed to withdraw nutrition & medication, even though the undoubted consequence of this would lead to his death.

Rossiter had become a quadriplegic after a road accident, and retained full ability to understand his condition and to make reasoned choices on his own behalf. His fully functioning mind was trapped within a body which was unable to undertake any basic human functions’. Nutrition was provided to him through a tube inserted directly into his stomach.

mining-199x300.jpg

Wills and Estate Planning Adelaide: Glass Ceilings, Black Holes, Budget Deficits & Estate Plans

Estate Planning, Wills and Estate Planning
Glass Ceilings, Black Holes, Budget Deficits & Estate Plans

Australia now has its first female Prime Minister.  The glass ceiling has at last been shattered.  But what does this mean for the federal budget, and how might this affect your estate planning?

Bear with me for a minute, as we explore some of the possibilities.

That the new PM is female is largely irrelevant to these considerations.  But the change of Prime Minister allows the government to distance itself from some of the more unpopular policies of the outgoing PM Kevin Rudd, notably the Mining Tax.

The 40 per cent resource super profits tax – known as the Mining Tax – was the single biggest tax impost since the introduction of the GST.

This new tax on mining profits was supposed to be worth up to $12 billion a year, and was the government’s funding mechanism to boost the retirement savings of workers, lower business taxes and build infrastructure – while still leaving room for the other $2.6 billion in election promises.