Legal Tip 276: Rewriting Wills after Death?

Discussion in 'Wills & Estate Planning' started by Terry_w, 7th Mar, 2020.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Not many realise but a will doesn’t necessarily need to be followed. It can be varied. One way of doing this is for all interested parties agree to it. This should be done by a deed entered into by the various parties with a stake in the will. Usually this would be called a deed of family arrangement.

    An example might be child A taking property 1 and child B taking property 2 instead of them both inheriting 50% of each property.


    The relevant legislation that allows this is the various state trustee acts. In NSW see Section 46 Trustee Act 1958
    TRUSTEE ACT 1925 - SECT 46 Appropriation


    Note that there are both stamp duty and CGT consequences to doing this so seek legal advice. CGT can be avoided in many instances and stamp duty will vary depending on the type and location of any assets.

    So what is in the will doesn’t necessarily need to be followed.

    Seek legal advice,
     
  2. Archaon

    Archaon Well-Known Member

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    So the will states that Child A and Child B should get 50% each of the 2 properties?
     
  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    It might have. But the kids might want one property each instead.
     
  4. Marg4000

    Marg4000 Well-Known Member

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    Neighbour years ago was a beneficiary of an estate left equally between 4 siblings.
    Estate consisted mainly of family home, a business, and a beach apartment. All were valued. #1 took the family home. #2 took the business as her husband worked there. #3 took the apartment. All paid varying cash adjustments which went into trust for #4, a 12 year old child. All very amicable.
     
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