Public Trustee is asked many questions by our clients and the public. Here are our answers to some of the more frequently asked ones.

How can I obtain a copy of a will?

A will is a public document and copy of a will can be obtained once probate has been granted. A copy of the will can be obtained from the Probate Registry.

I have been appointed an executor in a will to administer an estate. What do I do?

What is the Statement of Assets & Liabilities?

When applying for probate, an executor is required by law to disclose all assets and debts of the deceased person which are known to the executor. Public Trustee provides a copy of the Statement to beneficiaries for their information.

The funeral expenses have already been paid. Why are they included on the Statement of Assets & Liabilities?

The Statement is prepared in the format required by the probate court. Generally it is intended to reflect the position as at the date of death. It is not a financial statement of receipts or payments.

What happens if an asset is not disclosed on the Statement of Assets & Liabilities?

An executor cannot legally deal with an asset of an estate until it is properly disclosed. The executor will need to make an Additional Disclosure to the probate court.

What happens to joint bank accounts when one partner dies?

The bank account automatically passes to the survivor and upon presentation of death certificate to the bank, the account will be transferred into the survivor's sole name.

What are the future tax consequences of leaving an inheritance for my children or grandchildren under 18 years of age?

The tax implications of trusts should be well considered at the time of making your will. The terms and wording of your will can affect the tax consequences of an inheritance left for your children or grandchildren under 18 years of age. In particular, the terms of a will can affect the amount of income that can be earned tax free by the inheritance. Any taxation liabilities incurred must be paid from the inheritance funds held in trust and this, of course, will ultimately reduce the amount of funds available for the children.

Although the tax consequences of a will may not be the most pressing issue in your mind when you prepare your will, they certainly need to be considered to ensure that your wishes are fulfilled and you get the best outcome for the children. What is needed is a professional will maker who has a full understanding of these tax issues. Public Trustee has a specialist taxation service that works in conjunction with our will specialists to ensure that you are better informed to achieve a satisfactory outcome of your requirements and you have peace of mind.

Can I give my share in the estate to my son or daugther?

Yes, but be careful. This action may affect your centrelink entitlements and, if superannuation proceeds are involved, may affect concessional tax arrangements.

Does the Public Trustee automatically sell the house and furniture when a person dies?

No, not automatically. Unless the Will is very specific and directs Public Trustee to sell these assets, then generally the beneficiaries entitled to the house and furniture are consulted about their wishes for the property.

I am a member of a superannuation fund and I want to know if the benefit payable becomes an asset of my estate when I die?

The answer is…not necessarily. Under the governing rules of most superannuation funds, on the death of a member of a fund the trustees of the fund have an absolute discretion as to who receives the benefit payable, provided such person or persons fall within the class of beneficiaries in the trust deed.

For many years superannuation funds have accepted nomination forms from members where the member is able to nominate the person or persons to receive the benefit payable on the death of the member. There was no obligation on the trustee of the fund to comply with the wishes of the member. The nomination was only a factor which the trustees could consider in deciding how to exercise their discretion in determining who would receive a member's death benefit.

If I don't make a will, how much goes to the government?

Your estate will only be paid to the Government if no next of kin can be found to share in your estate and that happens very rarely. The problem with not making a will is that your estate might end up going to distant relations and not to those who have helped and befriended you in your lifetime.

When will the estate be paid out?

When the beneficiaries have been found and consulted about whether assets are to be transferred or sold; when the legal and taxation processes are complete; when funds have been collected and debts, fees and commissions have been paid

A friend mentioned the benefit of "appropriation provisions" in their will. I don't quite understand the concept. What does this entail, and what are the implications to an estate beneficiary?

Power of appropriation is an important provision that should be included in all wills. In plain terms, it means providing in your will the ability for the trustee to pass on or transfer specific assets from your estate direct to beneficiaries rather than having to sell them and divide the proceeds according to the provisions of the will. Importantly, this provision can reduce costs to your beneficiaries by providing significant savings with stamp duty and, in some cases, capital gains tax.

Public Trustee recommends that each client check his or her will. Many wills prepared prior to 1990 lack the power for the trustee to be able to appropriate assets
in specie. If your will does not contain this clause you may be exposing your beneficiaries to unnecessary costs and inconvenience. You should review your will.

Public Trustee believes a will should be reviewed after any significant event and certainly at least every five years. Public Trustee will prepare a revised will for you at no cost.

For more information, or to arrange for an appointment, please telephone Public Trustee on 8226 9204 or for country callers, FREECALL 1800 67 3119.

I am planning on leaving my family home, that I currently live in, to my daughter in my will. My family has always lived in this home. Will my estate have to pay capital gains tax on this transfer?

No. A capital gain will not arise from the passing of your property from your deceased estate to your daughter.

What if my daughter chooses to sell the property - will she have to pay Capital Gains Tax?

If you live in your family home until your death, your daughter will not incur a capital gain if she sells the property within two years of your death. She can even rent this property within the two years and not be liable for capital gains tax on the sale of your home.

If your daughter decides to live in the property as her main residence from the date of your death until its eventual sale, she will not incur a capital gain on its sale, irrespective of when it is sold.